Review: Potential legal liability for withdrawing or withholding ventilators during COVID-19

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Review: Potential legal liability for withdrawing or withholding ventilators during COVID-19

Review: Potential legal liability for withdrawing or withholding ventilators during COVID-19

This JAMA Perspective describes the criminal and civil legal risks that may face providers for withholding or withdrawing ventilators.

The authors assess the criminal and civil legal risks as low, but not trivial. On the criminal risks, ventilator withdrawal may technically count as homicide, and defenses such as necessity may not be available. On civil risks, plaintiffs would have the high burden to show that providers were not following the standard of care and also that the person would have survived with ventilator support. The authors urge states to adopt a statute like Maryland’s which provides civil and criminal immunity upon declaration of emergency. Maryland’s statute has been interpreted by Maryland’s Attorney General to apply to good faith compliance with state-mandated (and often voluntary) triage guidelines. Such triage guidelines may include when to withhold or withdraw ventilators. The authors also urge state attorneys and district attorneys to write to hospitals in their jurisdiction that they will not prosecute hospitals or providers for good faith triage protocol compliance.

|2020-04-08T14:53:51-04:00April 1st, 2020|COVID-19 Literature|Comments Off on Review: Potential legal liability for withdrawing or withholding ventilators during COVID-19

About the Author: Seema Mohapatra

Seema Mohapatra
Seema Mohapatra is an Associate Professor of Law and Dean's Fellow at the Indiana University Robert H. McKinney School of Law, She teaches Introduction to Health Care Law and Policy, Genetics and the Law, Torts, and Bioethics and the Law. Seema Mohapatra is an expert in the areas of health care law, public health law, bioethics, torts, and international health and family law. Her research interests include the intersection of biosciences and the law, assisted reproduction and surrogacy, international family and health law, health care disparities in the United States, and informed consent. Her work has been published in several journals, including the Wake Forest Law Review, Colorado Law Review, Brooklyn Law Review, and the Harvard Journal of Law & Policy. Professor Mohapatra currently teaches Torts, Introduction to Health Care Law, Bioethics, and Genetics and the Law. She has authored articles and book chapters on topics such as insurance coverage of infertility and assisted reproduction, genetics and health privacy, international surrogacy laws, and equity in healthcare coverage. Professor Mohapatra regularly presents her research nationally and internationally at legal and medical conferences and symposia. Prior to teaching, Professor Mohapatra practiced health law in Chicago at Sidley & Austin and Foley & Lardner. She earned a J.D. degree from Northwestern University School of Law and has a master’s degree in Public Health with a concentration in Chronic Disease Epidemiology from Yale University. She earned a bachelor of arts in Natural Sciences (with a minor in Women's Studies) from Johns Hopkins University.

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