COVID-19: Responsibility and Accountability in a World of Rationing

Abstract

The COVID-19 pandemic is the first modern public health crisis with the potential to overwhelm the public health care system. When rationing of services, drugs, and equipment must occur, health care providers have a responsibility to make rationing decisions fairly, both procedurally and substantively. In addition, health care providers, like all professionals, are accountable for their decisions. The legal standard of care requires providers to exercise the skill and knowledge normally possessed by providers in good standing in the same field or class of practice acting in the same or similar circumstances. But making rationing decisions in crisis conditions, like those created by COVID-19, is not the same as or similar to decision making in non-crisis conditions. Thus, the standard of care, properly applied, expects less of providers practicing under the stress of COVID-19’s triage conditions. Because many health care providers do not perceive this is true, and for pragmatic and normative reasons, policymakers should articulate rules limiting providers’ liability for rationing decisions—as well as other acts and omissions—occurring in and attendant to crisis conditions. These rules should not, however, create absolute immunities. As the COVID-19 pandemic unfolds, more states are embracing this approach.

Keywords: COVID, coronavirus, virus, COVID-19, health, risk, liability, providers, ethical, criminal, discriminatory

JEL Classification: I1, I10, I12, I14, I18, K13, K32, K41