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.