COVID-19 Control: Disrupting Doctor-Patient Relationships
54 Pages Posted: 4 Sep 2020
Date Written: September 2, 2020
The full-armamentarium of public health countermeasures came into play when COVID-19 emerged; a few examples are quarantine, closures, and social distancing. These countermeasures are intended to protect population health, but trench on many important rights protected by ethical precepts and tort, constitutional, or other law. The measure studied here, orders to delay “elective” medical procedures to preserve resources, have been virtually ignored. Yet, they are uniquely broad, risky, and disrupt information gathering and therapeutic trust engendered by doctor-patient relationships. Although medicine (speaking for the few) and public health (speaking for the few) traditionally have clashed, it is shown that medical and public health law and ethics combine to require strict (constitutional) or stringent (medical and public health ethics) scrutiny of delay actions. Delay also can be shoddily promulgated or implemented, thus creating tort liability. A “new public health” and ethical models (medicine) and frameworks (public health) combine to require that countermeasure be shown necessary, effective, and the least intrusive way to further vital governmental goals. Delay trenches on several fundamental or special liberties, and these rights have been analyzed by scholars addressing other countermeasures. This article explores another seldom-discussed topic: the fundamental right to purchase care (or insurance for it) available in the open market. Although delay regimes can be beneficial if properly promulgated and implemented, it is unlikely that the current actions can meet ethical standards or withstand constitutional strict or even certain intermediate scrutiny because they cannot be shown to work or to be the least restrictive alternative.
Keywords: COVID-19, public health law, medicine, health ethics, open market, delay pronouncements, medical malpractice, orders and mandates
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