Saturday, March 28, 2020

Hospital Liability for Ventilator Shortages

By Michael Abramowicz - March 28, 2020 at 02:58PM

If a hospital runs out of ventilators to treat its patients, will it be liable when patients die as a result?

Courts have at times imposed malpractice liability when a hospital failed to provide a service that might have benefited a patient. For example, in Herrington v. Hiller, 883 F.2d 411 (5th Cir. 1989), the plaintiff alleged that a baby was born with brain damage as a result of a hospital's failure to provide 24-hour-a-day anesthesia services, and the court found admissible earlier discussions among hospital personnel about whether such services might be needed. More generally:

Hospitals and other institutional providers have a duty to provide adequate staff and services to deal with unexpected medical problems. Hospitals, like physicians, are expected to keep up with an evolving standard of medical practice, particularly if its cost-benefit ratio is high. The failure of a hospital to maintain adequate services to deal with medical emergencies can create liability.

Barry R. Furrow, Enterprise Liability and Health Care Reform: Managing Care and Managing Risk, 39 St. Louis U. L.J. 77, 91 (1994) (footnotes omitted). Also:

Both hospitals and hospital management companies have been found negligent for failure to exercise reasonable care in the maintenance of the hospital's facilities and equipment. The duty to maintain adequate facilities and equipment requires hospitals to have the facilities and equipment necessary to safely carry out the medical treatment it offers.

Mindy Nunez Duffourc, Repurposing the Affirmative Defense of Comparative Fault in Medical Malpractice, 16 Ind. Health L. Rev. 21, 28 (2018) (footnote omitted).

Hospitals, of course, would argue that they have an obligation to maintain sufficient equipment for ordinary times, not for pandemics. Assuming a hospital maintains a typical ICU capacity for hospitals, it would have a strong argument to having met the community standard of care.

If a court in its instructions emphasizes custom, hospitals may mostly be free of liability. But if a court instructed juries to apply the Hand formula, or instructed juries in a way that would implicitly allow them to consider cost-benefit type considerations, the result might well be different. A pandemic was not unpredictable, and a likely cost-benefit analysis would likely suggest that ventilators should have been purchased. If a ventilator costs $25,000, then at a value-per-life of just $5 million, the purchase would have been cost-justified if there were a 1 in 200 chance that it would be necessary–or an even lower chance if a single marginal ventilator might be used for more than one patient.

Stephen Gillers has noted that although the Hand Formula is often treated as black-letter law, jury instructions rarely mention it, but nor do they forbid the jury from applying similar considerations:

[A] puzzle lies in the gap between the authoritative blackletter status of the Hand Formula and the standard instructions given to juries in negligence cases. The proposition that negligence means creating an "unreasonable risk," defined as one whose expected costs exceed the costs of avoiding it, has been explicitly endorsed by the Restatement of Torts, by the leading treatises, and by courts in most states. Indeed, despite the vigorous normative debates over cost-benefit analysis among legal academics, no modern decision to my knowledge squarely rejects the Hand Formula interpretation of negligence. Yet, rather than telling juries to balance the costs and benefits of greater care, courts ordinarily instruct them to determine whether the actor behaved as a "reasonably prudent person" would have under the circumstances. Even on appeal, many courts make surprisingly little use of cost-benefit analysis in reviewing negligence cases. Often, the only question on appeal is whether a reasonable jury could have found a party negligent under the reasonable person standard.

Some scholars claim that these practices demonstrate that the actual meaning of negligence in American law is defined by a reasonable person standard that marginalizes or even supplants the Hand Formula. Although these accounts vary in important particulars, their common theme is that the determination of negligence rests on a noneconomic conception of practical reasonableness that looks to community values and norms rather than to any form of cost-benefit analysis.

But the crucial feature of the pattern jury instructions on negligence is that they explicitly adopt neither of these competing theories—nor any other. Juries are told neither that a reasonable person is one who complies with community values and norms nor that a reasonable person is one who balances costs and benefits (or behaves "as if " balancing them). Instead, the reasonable person standard is given to the jury without elaboration.

A jury would not likely engage in explicit cost-benefit balancing. But it seems to me plausible (though I would welcome comments from those with more immediate experience) that a jury might well conclude that hospitals should have recognized the need to purchase enough ventilators to handle a surge in patient capacity. A plaintiff's case might be especially strong if a hospital had time between when an emergency loomed and when a patient died to purchase a ventilator that would have saved the patient. Juries, meanwhile, would likely be more sympathetic to hospitals that, early in the emergency, contracted to purchase ventilators (at least simple models) as soon as they were available.

Normatively, I am not sure whether hospitals should be liable. There is a strong argument that if one opens a 1,000 bed hospital, one should not be liable for not opening a 2,000 bed hospital. Liability might create a disincentive for small hospitals to open in the first place. On the other hand, it is difficult to identify an actor in a better position to anticipate potential needs for emergencies or to identify an actor that now will have strong incentives to provide demand for ventilators.

A related but separate question is whether doctors and medical professionals should be held to a lower standard of care during emergencies:

[I]n the wake of events like Hurricane Katrina and the H1N1 pandemic, there have been proposals to change the ordinary standard of care during declared emergencies. This idea is called "altered standards of care," and suggests that there should be different standards that health care workers are held to during an emergency. Broadly, a public health emergency exists when a health situation's "scale, timing or unpredictability threatens to overwhelm routine capabilities." There has been significant research into, and creation of, altered standards of care for volunteers and Good Samaritans who help during emergency situations. Many of these regulations provide immunity to these individuals.

Rebecca Mansbach, Note & Comment, Altered Standards of Care: Needed Reform for when the Next Disaster Strikes, 14 J. Health Care L. & Pol'y 209, 209 (2011) (footnotes omitted). One would not want to discourage a doctor from working during the emergency because the doctor cannot provide care of the same quality as the doctor would ordinarily provide. But that is a different question from whether health care institutions should anticipate emergencies and stock up.

from Reason Magazine Articles