Reciprocity and Liability Protections during the COVID-19 Pandemic

51(3) THE HASTINGS CENTER REPORT 5-7 (2021)

U of Houston Law Center No. 2021-A-13

3 Pages Posted: 23 Aug 2021 Last revised: 10 Jan 2022

See all articles by Valerie Gutmann Koch

Valerie Gutmann Koch

University of Houston Law Center; University of Chicago - MacLean Center for Clinical Medical Ethics

Diane E. Hoffmann

University of Maryland Francis King Carey School of Law

Date Written: June 19, 2021

Abstract

During the COVID-19 pandemic, as resources dwindled, clinicians, health care institutions, and policymakers have expressed concern about potential legal liability for following crisis standards of care (CSC) plans. Although there is no robust empirical research to demonstrate that liability protections actually influence physician behavior, we argue that limited liability protections for health care professionals who follow established CSC plans may instead be justified by reliance on the principle of reciprocity. Expecting physicians to do something they know will harm their patients causes moral distress and suffering that may leave lasting scars. Limited liability shields are both appropriate and proportionate to the risk physicians are being asked to take in such circumstances. Under certain narrow circumstances, it remains unclear that the standard of care is sufficiently flexible to protect physicians from liability. Given this uncertainty, the likelihood that physicians would be sued for such an act, and their desire for such immunity, this limited protection is morally legitimate.

Keywords: crisis standards of care, reciprocity; liability, pandemic preparedness

Suggested Citation

Gutmann Koch, Valerie and Hoffmann, Diane E., Reciprocity and Liability Protections during the COVID-19 Pandemic (June 19, 2021). 51(3) THE HASTINGS CENTER REPORT 5-7 (2021), U of Houston Law Center No. 2021-A-13, Available at SSRN: https://ssrn.com/abstract=3870436

Valerie Gutmann Koch (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204
United States

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

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

Diane E. Hoffmann

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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