Ethics, Law & Policy Roundup: Health Care Workforce

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Ethics, Law & Policy Roundup: Health Care Workforce

Ethics, Law & Policy Roundup: Health Care Workforce

Ethical Challenges: Protecting patients and providers

The COVID-19 pandemic poses significant ethical challenges for health care professionals, including nurses, who represent the largest share of the global health care workforce. While facing the danger of infection is an accepted part of working in the field, the well-documented absence of adequate protection due to the scarcity of personal protective equipment (PPE) presents more complicated ethical and professional questions about the duty to care and the limits of that duty. Nurses have a primary duty to the recipient of care, but they also have a duty to promote their own health and safety. Shortage of PPE may increase demands on nurses as facilities restrict the number of personnel entering patient rooms, but nursing perspectives are not consistently included in resource allocation decision-making. Difficult allocation decisions that may result from resource scarcity (e.g., denial or withdrawal of ventilator support) may also exacerbate moral and emotional discomfort, and nurses and other frontline workers often report different perceptions of these actions compared to bioethicists and others.

It is also important to pay attention to how the health care workforce itself is allocated. Some staff may be allocated to higher-risk roles in managing patients, and the process used to make these decisions raises ethical questions. For example, giving staff no choice or ability to opt-out of assignment to high-risk roles may be efficient, but it is likely to be unfair and potentially unethical, as some staff inevitably face greater risks based on their own health and other factors.

Whether to prioritize frontline health care workers is a contentious ethical issue, but the authors of this article in the American Journal of Bioethics make three related arguments favoring priority. First, benefits to providers also benefits those they care for, creating a multiplier effect, provided that the provider will be able to return to practice in time to assist others. Second, as part of the social contract, health care workers receive privileges and powers in exchange for agreeing to serve society by helping the sick even at personal risk, and society in turn agrees to care for these workers if they fall ill. Third, and closely related to the second, health care workers are owed a duty of reciprocity by society on the basis of the risks they face in providing care during a pandemic.

 

Liability Protections for Health Care Providers

In providing care amid case surge, constrained resources, and other challenges, many health care providers are concerned about the potential that they may face malpractice lawsuits for failing to provide the usual standard of care, but many states have acted to shield providers against civil liability in these circumstance. Governors in several states (e.g., Connecticut and Illinois) have provided protections for providers by executive order, and other states (e.g., New York and New Jersey) have created new protections under state law. Such protections typically immunize providers from liability for simple negligence (failure to meet the usual standard of care), meaning they can only be held liable for more egregious failures (gross negligence or willful misconduct, which are uncommon). These protections are in some cases tied to implementation of crisis standards of care (CSC) that recognize an inability to provide usual care due to surrounding circumstances, and they are conceptually related to protections provided to “good Samaritans” who provide care during an emergency. Some states have existing statutes that immunize providers during a declared public health emergency without requiring any additional state action such as an executive order. This approach may help eliminate uncertainty faced by providers in other states who may be providing care while awaiting the governor to issue an order.

Indiana (along with Louisiana, Maryland, and Virginia) has statutes that provide immunity for providers during a declared emergency without additional state action.

|2020-05-22T10:59:22-04:00May 22nd, 2020|COVID-19 Literature|0 Comments

About the Author: Daniel Orenstein

Daniel Orenstein
Daniel G. Orenstein, JD, MPH, is Visiting Assistant Professor of Law at the Indiana University Robert H. McKinney School of Law in Indianapolis. He teaches in the areas of administrative law, public health law, and health care law and policy. His research focuses on public health law, policy, and ethics, and he was previously Deputy Director of the Network for Public Health Law Western Region, where much of his work centered on emergency preparedness and response, including resource allocation and government authority during declared emergencies, as well as vaccination policy.

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