Liability for emergency department (ED) providers during the COVID-19 pandemic is different than normal times.
“This is not just a disaster. This is a public health emergency that’s been declared. That changes a lot of things,” says Carl H. Schultz, MD, FACEP, professor emeritus of emergency medicine and public health and director of the EMS and disaster medical sciences fellowship at UC Irvine School of Medicine.
For ED providers, it changes priorities somewhat. Care is geared more toward the public’s best interest, rather than doing the most good for one individual. “In normal times, putting two people on one ventilator would be gross malpractice,” says Schultz, who also serves as the EMS medical director at Orange County (CA) Healthcare Agency.
It may be the ED is going to protocolized care and is going to be giving tissue plasminogen activator instead of taking patients to the cath lab. In a public health emergency, EPs must do the best they can with the resources they have to maximize survival the best they can. “That becomes the standard of care,” Schultz notes.
The standard of care is not static. “As circumstances change, what a reasonable EP [emergency physician] would do under those circumstances changes,” Schultz says. For instance, confronted with a public health crisis, a reasonable EP would not be expected to endanger his or her own health.
Basically, the standard of care in a pandemic is the same as in “normal” times, says Mark A. Rothstein, JD, founding director of the University of Louisville Institute for Bioethics, Health Policy and Law. It still is defined as the level of care that would be provided by a reasonably prudent physician in similar circumstances.1 “The key is ‘in similar circumstances,’” Rothstein underscores. “Healthcare providers are not held to a standard of doing the impossible.”
EDs are not expected to provide the same level of care that would be reasonable during normal times. “This same flexible standard applies to the treatment of a patient with COVID-19 or any other medical condition,” Rothstein explains.
For this reason, says Rothstein, “despite great concern about malpractice or negligence liability, there are very few cases that have been brought alleging substandard care during a public health emergency.”
Ordinarily, care standards require EPs to meet certain medical needs for patients. But during a pandemic, standards may have to shift to help the larger community, according to Sarah Wetter, JD, MPH, a law fellow at the O’Neill Institute for National and Global Health Law in Washington, DC. Crisis standards of care are defined as the “optimal level of care that can be delivered during a catastrophic event, requiring substantial change in usual healthcare operations.”2
“Under crisis standards of care, the legal system can support and encourage healthcare workers by affording them freedom from retroactive legal scrutiny,” Wetter says.
When EDs shift to crisis standards of care due to constraints on resources, personnel, and time, “it becomes justified to focus on the needs of the population in crisis, rather than the individual,” Wetter says.
Most states have instituted emergency laws that allow governors to waive liability for healthcare professionals and organizations that are partaking in emergency management. “There are usually exceptions for malicious, willful, or reckless conduct that results in injury or death,” Wetter observes.
According to Schultz, “if anything, the crisis is legally protective. Emergency physicians are much more likely to be sued in peacetime for simple things that they screwed up on rather than during a disaster.”
During previous disasters, there has never been a successful malpractice action taken against a provider who had not engaged in gross negligence, according to the authors of a literature search.3 After Hurricane Katrina, legal action was taken against a physician in New Orleans. “But it wasn’t tort law. The doctor was accused of euthanasia, which is a criminal offense, and was acquitted anyway,” Schultz notes.
Similar litigation patterns are found in the aftermath of other disasters. “To give a broader picture, this isn’t the first disaster we’ve had in this country. We’ve had many,” Schultz notes. “In environments of disaster, physicians tend to be supported over and over again.”
Judges and juries have been reluctant to issue verdicts of negligence or malpractice in such cases. After the COVID-19 pandemic, it will not be hard for the defense to convince anyone that EPs were working in horrendous conditions. “There’s very little chance a physician will run into trouble when providing reasonable, prudent care in the context of a public health emergency,” Schultz predicts.
Successfully proving the three elements of negligence also is a problem in terms of causation. “You have to prove that your action was the proximate cause of whatever happened,” Schultz says.
If an EP could not move a patient upstairs to an intensive care unit bed because there were none available, then the EP was not the proximate cause. The pandemic was. “This is not a hard concept for anyone to understand,” Schultz explains.
- Rothstein MA. Malpractice immunity for volunteer physicians in public health emergencies. J Law Med Ethics 2010;38:149-153.
- Hick JL, Hanfling D, Wynia MK, Pavia AT. Duty to plan: Health care, crisis standards of care, and novel coronavirus SARS-CoV-2. NAM Perspectives. Discussion paper. National Academy of Medicine. Washington, DC. March 5, 2020.
- Schultz CH, Annas GJ. Altering the standard of care in disasters--unnecessary and dangerous. Ann Emerg Med 2012;59:191-195.