During “normal” times, many health care clinicians report unrealistically high expectations from the larger health care system. What about during emergency circumstances or in the 2020 case, a pandemic? Are the same unrealistic expectations or even the standard expectations upheld or are they relaxed? When those of us who have worked in health care for years find ourselves caring for patients under unique circumstances, we may compare it with a previous time we were in a similar scenario. For example, clinicians in New York City will naturally compare patient care in the aftermath of September 11, 2001, to what occurred during the height of COVID 19. For those of us in the Boston area, we recall a tragic fire in nearby Rhode Island in 2003 that killed and/or injured 100s of people. Many of these patients were med-flighted from Rhode Island to Boston as local hospitals being overwhelmed related to capacity issues. We also recall the devastation and increased hospital capacity need and overflow experienced after the Boston marathon bombings in 2013. The 2020 pandemic is also especially raw for clinicians who worked during Hurricane Katrina. There are real-life horror stories of clinicians being criminally charged after being accused of intentionally hurting their patients during/after the hurricane. The Louisiana attorney general charged a physician and two nurses with second-degree murder (Drew, 2006). Many could not understand the desire to punish those who stayed to care for the patients when so many did not. These clinicians were forced to care for patients under unimaginable conditions that were unprecedented. Ultimately, there was not a trial (nurses were granted immunity in exchange for testimony) and the grand jury did not indict the physician. There must also be consideration given to the patients as well during these unusually challenging times. Do the patients and their loved ones not deserve to be given the best patient care? It is hard to reconcile and balance providing the best patient care possible with the lack of available resources.
Owing to the COVID 19 pandemic, most states declared a state of emergency and/or disaster (at some point during March and/or April 2020). These declarations empower governors and other legislators to utilize different and urgent measures to protect the public and others depending on circumstances. For example, if a patient with active tuberculosis elopes from the hospital without requisite masks and proper education on management, some laws allow public health officials and/or police to retrieve that person and find them in order not to infect the public. While most courts uphold that they cannot be forced to undergo treatment, they may be detained or isolated for the safety of others. It is for the protection of the public (Centers for Disease Control, 2009).
Health care workers are deemed essential during disasters to further protect the public. During the 2020 crisis related to COVID 19, actions have taken place to protect health care workers and institutions. Some states have enacted legislation that reduces civil liability for clinicians that will extend for the period of the emergency and/or disaster and possibly for a temporary period beyond. This grants some professional related immunity to clinicians during the emergency declaration period.
Reduced liability does not typically mean that there is blanket across the board immunity, but it does offer some important protections. It does not protect from criminal liability. The purpose of implementing these protections stems from an understanding that clinicians are under additional pressure and may be lacking equipment, devices, treatments, appropriate personal protective equipment (PPE), appropriate staffing, etc., and this prevents them from caring for their patients in the manner that they typically would. Because these are unusual events, the concept is that they should not be held responsible for circumstances beyond their control when they are doing their best given the situation. Some of the states that have enacted similar legislation include Michigan, New York, New Jersey, and Massachusetts (not an exhaustive list). Massachusetts, as an example, extended this protection to the clinicians and staff working in satellite/field hospitals that were set up solely to help offset the extra load to existing hospitals (Massachusetts, 2020).
In addition to executive orders and legislation to reduce civil liability, there are other guiding documents that will impact clinician liability risk. Both the American Nurses Association (ANA) and the American Medical Association (AMA) have addressed the need for crisis standards of care. The ANA document provides guidance to both individual nurses as well as institutions. The ANA notes that a crisis does not change standard of care expectations, the obligation to the ANA code of ethics or nursing accountability, but that the balance of professional standard and crisis standard will be based on the specific situation (ANA, 2020). Things like presence or absence of equipment, medication, or staff will be taken into consideration (ANA, 2020). The AMA states that during urgent public health situations like pandemics, the “commitment of fidelity to the individual patient is counterbalanced by the need to protect the welfare of a population of patients” (AMA, 2020, para 2). The AMA even goes on to explicitly state that if cardiopulmonary resuscitation (CPR) is unlikely to provide a beneficial result, it may be ethically justified to skip performing CPR even without consent of the patient (AMA, 2020). This would be in the context of evaluating risk to individual versus the group and being able to provide care as needed in the future (AMA, 2020). Much of the guidance that has been/is being published focuses on how reduced available resources should be allocated to maximize the number of lives saved (DePergola, 2020). These types of actions will be taken into consideration within the context of the event should there be a civil liability claim down the line.
This author's recent columns have addressed the possibility of professional licensure complaints and discipline related to complaints made in the context of professional behavior. It will be interesting to see how these aforementioned legislative orders impact professional boards of nursing and medicine. At the time of this writing, there has been some guidance about loosening some licensing restrictions because of increased need of nurses and physicians, but there is not extensive availability of information regarding what the state professional boards will be doing as a result of increased risk for complaints/liability if anything. Although it is understood that the boards must uphold their obligations to protect the public, there must be some consideration given to the unusual circumstances and their impact on professionals' ability to practice their discipline. The American Association of Nurse Attorneys (TAANA) has issued a formal position paper on COVID 19 (2020). One of the issues addressed is how COVID 19 will interfere with nurses' ability to do their job. They request that the boards consider some mitigating factors in relation to any future disciplinary complaints. These factors include ethical dilemmas, involuntary resignations/terminations, reasonable accommodation requests, PPE concerns, personal safety concerns, Health Insurance Portability and Accountability Act concerns and mental health issues (TAANA, 2020). Hopefully, similar consideration will be given to all clinicians if called before a disciplinary board as they would be if before a civil court because of the legislation filed in response to COVID 19 and provision of care.
It is important to understand that the legislation to reduce liability does not mean that civil lawsuits will not be filed. They will likely still be filed by patients and families. What it will mean is that clinician defendants will be able to use recent legislation as a defense to the suit. It is possible that many will be dropped because of this. Legislation will also not in most circumstances apply to conduct that is considered intentional or grossly negligent (Massachusetts Senate Bill 2640, 2020). It will not apply to criminal allegations. It will, however, be interesting to see how far the immunity extends (Cook, 2020). Will it apply to the cardiologist caring for the patient that had a clotting issue or cardiac issue secondary to COVID 19 (they are not the primary clinician)? It will also be interesting to see how long it will extend. How far removed will patient issues be attributed to the care they received for COVID 19 and how long after the emergency will these liability exceptions be extended (if any) (Cook, 2020)? There are always nuances and caveats with the law and it will be up to the interpretation of the courts. All of the items mentioned will be able to be brought in as evidence: crisis standards of care, professional organizational and expert opinions, emergency circumstances, timing of events, type of alleged conduct, etc. The guidelines released by experts and organizations are not narrowly prescriptive, so it should be recognized that the need of decision makers to translate the guidance into specific decisions is a reality that may play itself out in various ways (DePergola, 2020). This should be considered during any subsequent potential discipline or lawsuit. Ultimately most clinicians carefully provide the best care possible for their patients, but there may also be patients and loved ones of patients who are impacted by the death or serious illness of their loved one and will want to seek answers and understanding of what occurred during their COVID 19 experience. Regardless of the circumstances, our patients and their loved ones deserve respect, compassion, kindness, and the best care possible. Many had to die or be hospitalized without being able to have their loved ones by their side. The long-term effect on both caregivers and patients/families alike will likely be seen for a long time to come.