Unique Proposals for Limiting Legal Liability and Encouraging Adherence to Ventilator Allocation Guidelines in an Influenza Pandemic

36 Pages Posted: 12 Nov 2012 Last revised: 9 Apr 2014

Valerie Gutmann Koch

University of Chicago - MacLean Center for Clinical Medical Ethics; New York State Task Force on Life and the Law; DePaul University - College of Law

Beth Roxland

New York State Task Force on Life and the Law

Date Written: January 2013

Abstract

In a severe influenza pandemic, many more patients would require the use of mechanical ventilators than can be accommodated with current supplies. In order to proactively confront the rationing of resources in preparation for the possibility of severe ventilator scarcity, in 2007, the New York State Task Force on Life and the Law and the New York State Department of Health released a draft guidance document entitled Allocation of Ventilators in an Influenza Pandemic, laying out a comprehensive clinical and ethical framework to guide distribution of ventilators in the event of a severe public health emergency using objective medical criteria, with the ultimate goal of saving the most lives. However, adhering to the Guidelines – despite the significant public health goals contained therein – may expose health care providers and entities to considerable costs and burdens, including the risk of jail time and/or financial penalties, the time and costs of discovery and preparing a case, higher medical malpractice insurance rates, and damage to one’s reputation, unless proper and adequate legal protections are in place. This article addresses the issue of liability for health care workers and entities who adhere to the recommended clinical protocol contained in the Ventilator Guidelines while rendering care in a disaster emergency. We consider the “trigger” for implementing emergency plans – a declaration of a public health or disaster emergency, explore current federal and State law that might offer immunity, defense, or indemnification to certain individuals or entities who provide care in response to that declaration, and offer several unique alternative approaches to mitigate clinicians’ and other entities’ burdens in the event of a lawsuit. The article culminates in recommendations for legislation granting adequate civil and criminal liability protections to health care workers and entities who adhere to the State’s Ventilator Guidelines in a pandemic.

Suggested Citation

Koch, Valerie Gutmann and Roxland, Beth, Unique Proposals for Limiting Legal Liability and Encouraging Adherence to Ventilator Allocation Guidelines in an Influenza Pandemic (January 2013). Chicago-Kent College of Law Research Paper No. 2013-06. Available at SSRN: https://ssrn.com/abstract=2174511 or http://dx.doi.org/10.2139/ssrn.2174511

Valerie Gutmann Koch (Contact Author)

University of Chicago - MacLean Center for Clinical Medical Ethics ( email )

5841 S Maryland Ave
Chicago, IL 60637-1470
United States

New York State Task Force on Life and the Law ( email )

90 Church Street
New York, NY 10007
United States

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

Beth Roxland

New York State Task Force on Life and the Law ( email )

90 Church Street
New York, NY 10007
United States

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