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COVID-19 Healthcare Heroics May Ironically Lead to Future Confrontations – Crisis Standard of Care? (Part 2)

May 1, 2020 | Brandy Simpson and Kathryn Huelsebusch

In part two of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider the “standard of care” for healthcare providers. Specifically, we consider whether the “standard of care” may not be so “standard” during this global pandemic. Medical negligence cases are won and lost after a determination of whether a healthcare provider met or failed to meet the standard of care. In these lawsuits, a jury decides whether the healthcare provider was negligent based upon the “standard of care.” In Missouri, the “standard of care” means to use that degree of skill and. learning ordinarily used under the same or similar circumstances by members of the defendant's profession.

During the COVID-19 pandemic, the “same or similar circumstances” portion of this definition have drastically changed considering the shortages of masks, face shields, other personal protective equipment (PPE), ventilators, swab kits, and testing capacity, all of which are critical for frontline caregivers and patients.

The Institute of Medicine Committee on Guidance for Establishing Standards of Care for Use in Disaster Situations defines “crisis standards of care” as:

“a substantial change in usual healthcare operations and the level of care it is possible to deliver, which is made necessary by a pervasive (e.g., pandemic influenza) or catastrophic (e.g., earthquake, hurricane) disaster. This change in the level of care delivered is justified by specific circumstances and is formally declared by a state government, in recognition that crisis operations will be in effect for a sustained period. The formal declaration that crisis standards of care are in operation enables specific legal/regulatory powers and protections for healthcare providers in the necessary tasks of allocating and using scarce medical resources and implementing alternate care facility operations.”

The medical community is working to establish guidelines for the “crisis standard of care.” The American Medical Association created an ethics resource page titled “Crisis Standards of Care: Guidance from the AMA Code of Medical Ethics” to offer guidance to healthcare institutions and providers on these issues during the pandemic. The Code does not offer specific clinical protocols, but instead provides foundational guidance for the development of ethically sound crisis standard of care guidelines.

“The goal is to make the decisions that happen at the bedside less ad hoc, so that they're more consistent, fairer and more objective,” said Elliott Crigger, PhD, Director of Ethics Policy at the AMA. “By having a set of standards, we’re not leaving it to somebody who, say, hasn’t slept in 48 hours or someone with a subtle bias against a patient."

The National Academies of Sciences, Engineering, and Medicine published a 200 page report in 2013 entitled “Crisis Standards of Care: A Toolkit for Indicators and Triggers” which addresses the standard of care during natural disasters, pandemics, and other catastrophic events.

At this stage, crisis measures are already being implemented in healthcare facilities across the U.S. Many of the recommendations involve the preservation and reuse of PPE due to the lack of resources. Outside the pandemic context, medical negligence cases commonly involve liability theories of medication errors, inadequate staffing, and ineffective infection prevention policies. These theories are likely to remain, but published “standard of care” guidelines in these situations during a public health crisis will likely be a moving target.

Other medical sources, committees and colleges have published on the crisis standard of care, including the American College of Emergency Physicians, the Institute of Medicine, and the Board on Health Sciences and Policy, among others. Litigators can only speculate how the standard of care for cases that arise during the COVID-19 pandemic will take shape. The only thing that is certain is that the crisis standard of care will be hotly contested and at the center of controversy in suits involving the care of patients with COVID-19 and the care of non-COVID-19 patients during the time of crisis.

Watch for our next post in this series, which considers the American Medical Association’s push for states to pursue liability protections for healthcare professionals during the COVID-19 emergency. Our prior post in this series can be found here.

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The BSCR Healthcare Law Blog examines issues of interest to healthcare providers in emergency departments, hospitals, private practice, ambulatory surgery centers, pharmacies, urgent care centers, EMS, long term care facilities, home health care and more. Learn more about our Healthcare Law practice.

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