FAQ: Crisis Standards of Care and Health Provider Liability
March 23, 2020
This FAQ addresses questions of liability for health care providers when shifting to crisis operations during a catastrophic event.
Q: When might health care providers and entities need to shift to “crisis standards of care?”
A: Standards of care ordinarily require health care workers (HCWs) to meet the specific medical needs of their patients. In crisis, when essential resources become scarce, they may have to shift the standard of care to emphasize the needs of the community, while still providing the best possible individual-level care. This concept was encapsulated by the National Academy of Medicine (NAM) (formerly the Institute of Medicine) as “Crisis Standards of Care,” (CSC) defined in 2012 as the “optimal level of care that can be delivered during a catastrophic event, requiring substantial change in usual health care operations.” See NAM’s comprehensive guidance: Crisis Standards of Care: A Systems Framework for Catastrophic Disaster Response.
Every state has declared an emergency in response to COVID-19 which can help trigger the shift to CSC. Many states also have developed or adopted CSC plans that address timing and operational shifts in crises. Alabama Governor Kay Ivey’s COVID-19 emergency proclamation, for example, expressly authorizes use of CSC plans as the “degree of care” owed to patients.
Invocation of CSC allows for reallocating staff, facilities, and supplies to meet population and patient needs. To free-up scarce medical resources, for example, hospitals could postpone non-emergency tests and procedures – as already seen in areas hard-hit by COVID-19 like Seattle and New York.
Q: Does the legal standard of care a HCW owes to a patient change during crisis?
A: Normally, the legal standard is what a reasonable health care practitioner would do under similar circumstances based in part on available resources. Thus a HCW in a large urban hospital may have to meet a different standard of care than another practitioner in a rural health clinic, largely related to varying resource availabilities. In an emergency situation, with shortages on supplies, staff, and space, the circumstances are greatly altered. Consequently, a HCW’s decisions or action that might normally constitute negligence in routine care may not as likely be viewed as negligent in an emergency (unless their actions are grossly negligent or involve wanton, willful, or reckless conduct).
Still, HCWs who take significant risks to provide care to others are leery of subsequent lawsuits. To some extent they may rely on CSC requiring a substantial change in usual health care operations. Yet, absent reasonable legal protections, fear of liability could deter practitioners from rendering care when need is the greatest.
Consequently, various laws at federal, state, and tribal levels provide liability protections during catastrophic events. These liability protections tend to cover certain HCWs in specific circumstances. Most examples of select statutory and regulatory health care liability protections for HCWs and organizations involved do not cover acts that are malicious, willful, or reckless. Alabama Governor Kay Ivey’s COVID-19 emergency proclamation, for example, immunizes HCWs following CSC in good faith, except in cases of willful misconduct, gross negligence, or bad faith.
Q: How are hospitals’ legal exposure affected during emergencies like COVID-19?
A: Liability issues for hospitals assimilate some of the same concerns as HCWs (noted above) with the added possibility of liability for failure to plan for these circumstances. Some states limit awards in lawsuits against non-profit hospitals, which is usually low and a disincentive for bringing suit. Some states’ liability protections in declared emergencies may also extend to entities like hospitals, although most limit such protections to individual HCWs.
The Network for Public Health Law provides information and education about laws related to the public’s health. We do not provide legal representation or provide advice on a particular course of action.