HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, February 17, 2022

Navigating Legalities in Crisis Standards of Care

James G. Hodge (Arizona State University), Jennifer L. Piatt (Arizona State University), Rebecca Freed (Arizona State University), Navigating Legalities in Crisis Standards of Care, Md. J. Health Care L. Pol’y (forthcoming 2022):

As originally conceptualized by the Institute of Medicine in 2009, crisis standards of care (CSC) refers to significant changes in the delivery of health services during sustained public health emergencies (PHEs). Implementation of CSC among hospitals and health care providers arises when extended patient surges combine with scarce or limited resources to overwhelm health systems and derail normal operations. Absent well-timed, organized, and critical interventions, excess patient morbidity and mortality may follow. Preventing the onset of CSC through advance planning and real-time effort is key. When CSC is justifiably invoked, however, saving lives and reducing morbidity through effective interventions are the end goals. Multiple national and regional PHEs shaped CSC in concept and practice over the decade since its inception. Yet, unprecedented public health impacts and resource scarcities during the COVID-19 pandemic necessitated repeated shifts to CSC in hospitals, localities, or entire states in a dynamic and unpredictable emergency legal environment. Profound law and policy repercussions emerged centering on (1) confusion over affirmative legal triggers for CSC invocation; (2) gaps and gaffes in regional coordination within and across jurisdictions; (3) discriminatory impacts of CSC allocation decisions based on race, disability, age, or other unwarranted factors; and (4) divergent criteria to resolve tie-breaking decisions over which patients should receive limited resources (e.g., ventilators, beds, staff, medical interventions). Solving these challenges is vital to assuring efficacious and equitable implementation of CSC whenever lives are on the line.

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