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Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19Assessing the Risks and Identifying Needed Reforms

Educational Objective
To understand the need for state legislatures to take action related to liability for decisions involving ventilator use in the time of ventilator shortages
1 Credit CME

With an anticipated shortage of ventilators for patients with coronavirus disease 2019 (COVID-19), hospitals, physicians, and nurses may have to make an unprecedented decision: should they withdraw or withhold ventilators from some patients and use them for other patients who have a better chance of survival? It is not uncommon for care teams to decide against initiating or continuing mechanical ventilation when such treatment would not achieve a patient’s goals or directives. COVID-19 presents a different case: patients who do not receive a ventilator could benefit, perhaps living for many additional years, if they receive short-term mechanical ventilation. Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support.

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Article Information

Corresponding Author: I. Glenn Cohen, JD, Harvard Law School, Griswold Hall Room 503, Cambridge, MA 02138 (igcohen@law.harvard.edu).

Published Online: April 1, 2020. doi:10.1001/jama.2020.5442

Conflict of Interest Disclosures: Dr White receives grant support from the National Institutes of Health/National Heart, Lung, and Blood Institute.

References
1.
White  DB , Lo  B .  A framework for rationing ventilators and critical care beds during the COVID-19 pandemic.   JAMA. Published online March 27, 2020. doi:10.1001/jama.2020.5046PubMedGoogle Scholar
2.
Truog  RD , Mitchell  C , Daley  GQ .  The toughest triage: allocating ventilators in a pandemic.   N Engl J Med. Published online March 25, 2020. doi:10.1056/NEJMp2005689PubMedGoogle Scholar
3.
Koch  JD , Roxland  BE .  Unique proposals for limiting legal liability and encouraging adherence to ventilator allocation guidelines in an influenza pandemic.   DePaul J Health Care Law. 2013;14:468-501. doi:10.2139/ssrn.2174511Google Scholar
4.
American Law Institute, Restatement (Second) of Torts, §924, comment (e).
5.
Lafave  W . Substantive Criminal Law 3d ed. §6.2(a), (c). Thomson Reuters; 2017.
6.
American Law Institute, Model Penal Code §3.02.
7.
Kletter  FL . Application of defense of necessity to murder. 2017; 23 A.L.R. 7th Art. 1.
8.
Hoffman  S .  Responders’ responsibility: liability and immunity in public health emergencies.   Georgetown Law J. 2008;96:1916-1969.Google Scholar
9.
MD Code, Public Safety, §14-3A-06; §14-3A-01(e)(1)-(3). https://law.justia.com/codes/maryland/2005/gps/14-3A-06.html
10.
Opinions of the Maryland Attorney General. Health–public health emergency preparedness–state’s authority to ration ventilators during pandemic–physician immunity. Published December 28, 2015. Accessed March 25, 2020. http://www.marylandattorneygeneral.gov/Opinions%20Documents/2015/100oag160.pdf
AMA CME Accreditation Information

Credit Designation Statement: The American Medical Association designates this Journal-based CME activity activity for a maximum of 1.00  AMA PRA Category 1 Credit(s)™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

Successful completion of this CME activity, which includes participation in the evaluation component, enables the participant to earn up to:

  • 1.00 Medical Knowledge MOC points in the American Board of Internal Medicine's (ABIM) Maintenance of Certification (MOC) program;;
  • 1.00 Self-Assessment points in the American Board of Otolaryngology – Head and Neck Surgery’s (ABOHNS) Continuing Certification program;
  • 1.00 MOC points in the American Board of Pediatrics’ (ABP) Maintenance of Certification (MOC) program;
  • 1.00 Lifelong Learning points in the American Board of Pathology’s (ABPath) Continuing Certification program; and
  • 1.00 CME points in the American Board of Surgery’s (ABS) Continuing Certification program

It is the CME activity provider's responsibility to submit participant completion information to ACCME for the purpose of granting MOC credit.

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