Following the terrorist attacks of September 11, 2001 in the United States, experts began to re-examine current approaches to providing care during disasters. A definitive standard of care for disaster victims has yet to emerge. One popular approach that has been proposed is to create “crisis” or “altered” care standards. These are meant to reduce the legal standard or duties of care for medical responders. In the Annals of Emergency Medicine, George J. Annas, JD, MPH, and I published an article that attempted to explain why altering the standard of care for disaster situations is both unnecessary and dangerous.
Reason & Prudence During Disaster
Considering that resources are limited during disasters, patients must be managed as a population rather than as individuals to maximize outcomes for that particular group of people. To determine the best approach, it’s critical that specific metrics or standards of care are used to assess the actions of physicians. Efforts must be made to ensure that these standards of care remain the same in disasters as they would for normal situations. While the circumstances may change based on the event, the metric or standard should remain the same: to perform the same actions that reasonable and prudent physicians would do in similar situations.
During disasters, physicians could and should ration care and allocate resources to patients who stand to benefit most. The ultimate goal is to maximize survival. By using the reasonable and prudent metric, disaster victims will receive the same standard of care as any other person.
Squelching Fears of Liability
The fear of liability is a real concern in establishing a standard of care in disasters. Emergency physicians face a nearly 50% greater risk of being sued for malpractice during their careers than other doctors. It’s important to recognize that the risk of being sued after a disaster is much lower—nearly 0%—than what emergency physicians live with on a daily basis. There is no real justification for worrying about liability.
Importantly, it should be noted that emergency physicians should not be exempt from criminal wrongdoing. The key is to recognize that those in emergency medicine are making every effort to manage patients as best they can under severe circumstances. Despite potential fears of liability, recent history shows that most emergency physicians still volunteer to help during disasters for the greater good. In the end, patients’ right to reasonable care should not be trumped by liability fears.
How Low Can You Go?
Precedents that are set for a standard of care should not be lowered during a disaster because care for patients can be further compromised. When lower standards are institutionalized, providers are hamstrung by not being able to deliver the care they’re capable of providing. Even if a metric exists for a lower standard, violating that new lower standard would still be cause for a malpractice suit. Hopefully, realizing this likelihood will give a different perspective to supporters of altering the standard of care in these situations.
Click here to download AHRQ’s Altered Standards of Care in Mass Casualty Events (pdf).
Readings & Resources (click to view)
Schultz C, Annas G. Altering the standard of care in disasters—unnecessary and dangerous. Ann Emerg Med. 2012;59:191-195.
Walker P, Hein K, Russ C, et al. A blueprint for professionalizing humanitarian assistance. Health Aff (Millwood). 2010;29:2223-2230.
Rothstein M. Malpractice immunity for volunteer physicians in public health emergencies: adding insult to injury. J Law Med Ethics. 2010;38:149-153.
Khan F. Ensuring government accountability during public health emergencies. Harvard Law Policy Rev. 2010;4:319-338.
Annas G. Standard of care—in sickness and in health, and in emergencies. N Engl J Med. 2010;362:2126-2131.
Hoffman S. Responders’ responsibility: liability and immunity in public health emergencies. Georgetown Law J. 2008;96:1913-1969.
Pryor J. The 2001 World Trade Center disaster: summary and evaluation of experiences. Eur J Trauma Emerg Surg. 2009;35:212-224.
Bayard D. Haiti earthquake relief, phase two—long-term needs and local resources. N Engl J Med. 2010;362:1858-1861.
McKenna M. The most good for the most people. Ann Emerg Med. 2010;56:22A-23A.