Unique Proposals for Limiting Legal Liability and Encouraging Adherence to Ventilator Allocation Guidelines in an Influenza Pandemic

37 Pages Posted: 12 Nov 2012 Last revised: 27 Jun 2020

See all articles by Valerie Gutmann Koch

Valerie Gutmann Koch

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

Beth E. Roxland

Roxland Consultants Ltd.; Johnson & Johnson; New York State Task Force on Life and the Law; Associate, Division of Medical Ethics, NYU Langone Medical School

Date Written: January 1, 2013

Abstract

In a severe influenza pandemic, many more patients would require the use of mechanical ventilators than can be accommodated with current supplies. In order to proactively confront the rationing of resources in preparation for the possibility of severe ventilator scarcity, in 2007, the New York State Task Force on Life and the Law and the New York State Department of Health released a draft guidance document entitled Allocation of Ventilators in an Influenza Pandemic, laying out a comprehensive clinical and ethical framework to guide distribution of ventilators in the event of a severe public health emergency using objective medical criteria, with the ultimate goal of saving the most lives. However, adhering to the Guidelines – despite the significant public health goals contained therein – may expose health care providers and entities to considerable costs and burdens, including the risk of jail time and/or financial penalties, the time and costs of discovery and preparing a case, higher medical malpractice insurance rates, and damage to one’s reputation, unless proper and adequate legal protections are in place. This article addresses the issue of liability for health care workers and entities who adhere to the recommended clinical protocol contained in the Ventilator Guidelines while rendering care in a disaster emergency. We consider the “trigger” for implementing emergency plans – a declaration of a public health or disaster emergency, explore current federal and State law that might offer immunity, defense, or indemnification to certain individuals or entities who provide care in response to that declaration, and offer several unique alternative approaches to mitigate clinicians’ and other entities’ burdens in the event of a lawsuit. The article culminates in recommendations for legislation granting adequate civil and criminal liability protections to health care workers and entities who adhere to the State’s Ventilator Guidelines in a pandemic.

Suggested Citation

Gutmann Koch, Valerie and Roxland, Beth E., Unique Proposals for Limiting Legal Liability and Encouraging Adherence to Ventilator Allocation Guidelines in an Influenza Pandemic (January 1, 2013). Chicago-Kent College of Law Research Paper No. 2013-06, Available at SSRN: https://ssrn.com/abstract=2174511 or http://dx.doi.org/10.2139/ssrn.2174511

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

Beth E. Roxland

Roxland Consultants Ltd. ( email )

246 5th Avenue
3rd Floor
New York, NY 10001
United States

HOME PAGE: http://www.linkedin.com/in/bethroxland

Johnson & Johnson

410 George Street
New Brunswick, NJ 08901
United States

New York State Task Force on Life and the Law ( email )

90 Church Street
New York, NY 10007
United States

Associate, Division of Medical Ethics, NYU Langone Medical School ( email )

550 First Ave.
VZ30, Office 626
New York, NY 10016
United States

HOME PAGE: http://https://med.nyu.edu/pophealth/faculty/xx-roxland-beth

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