Navigating Legalities in Crisis Standards of Care

Hodge JG, Piatt JL, Freed R. Navigating legalities in crisis standards of care. Maryland Journal of Health Care Law and Policy. 2022 (Forthcoming)

44 Pages Posted: 26 Jan 2022

See all articles by James G. Hodge

James G. Hodge

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Jennifer L. Piatt

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Rebecca Freed

Arizona State University (ASU), Sandra Day O'Connor College of Law

Date Written: January 21, 2022

Abstract

As originally conceptualized by the Institute of Medicine in 2009, crisis standards of care (CSC) refers to significant changes in the delivery of health services during sustained public health emergencies (PHEs). Implementation of CSC among hospitals and health care providers arises when extended patient surges combine with scarce or limited resources to overwhelm health systems and derail normal operations. Absent well-timed, organized, and critical interventions, excess patient morbidity and mortality may follow. Preventing the onset of CSC through advance planning and real-time effort is key. When CSC is justifiably invoked, however, saving lives and reducing morbidity through effective interventions are the end goals. Multiple national and regional PHEs shaped CSC in concept and practice over the decade since its inception. Yet, unprecedented public health impacts and resource scarcities during the COVID-19 pandemic necessitated repeated shifts to CSC in hospitals, localities, or entire states in a dynamic and unpredictable emergency legal environment. Profound law and policy repercussions emerged centering on (1) confusion over affirmative legal triggers for CSC invocation; (2) gaps and gaffes in regional coordination within and across jurisdictions; (3) discriminatory impacts of CSC allocation decisions based on race, disability, age, or other unwarranted factors; and (4) divergent criteria to resolve tie-breaking decisions over which patients should receive limited resources (e.g., ventilators, beds, staff, medical interventions). Solving these challenges is vital to assuring efficacious and equitable implementation of CSC whenever lives are on the line.

Note:
Funding Information: No specific entity provided funding for the production of the manuscript.

Declaration of Interests: The authors do not have any competing or conflicts of interest to report.

Keywords: public health law, crisis, emergency, standard of care, allocation, ethics, legality, patient, doctor, liability, decision, declaration, resource, limit, scarce, IOM, NASEM

Suggested Citation

Hodge, James G. and Piatt, Jennifer and Freed, Rebecca, Navigating Legalities in Crisis Standards of Care (January 21, 2022). Hodge JG, Piatt JL, Freed R. Navigating legalities in crisis standards of care. Maryland Journal of Health Care Law and Policy. 2022 (Forthcoming) , Available at SSRN: https://ssrn.com/abstract=4014599 or http://dx.doi.org/10.2139/ssrn.4014599

James G. Hodge (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Sandra Day O'Connor College of Law
111 E. Taylor Street, MC 9520
Phoenix, AZ 85004-4467
United States
480-727-8576 (Phone)

HOME PAGE: http://https://law.asu.edu/degree-programs/public-health-law-policy

Jennifer Piatt

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

111 E. Taylor Street
Phoenix, AZ 85004
United States

Rebecca Freed

Arizona State University (ASU), Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ
United States

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