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Covid-19: the Ethical and Legal Implications of Medical Rationing

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Covid-19: the Ethical and Legal Implications of Medical Rationing HODGE & HUBBARD 12/1/2020 8:47 AM COVID-19: THE ETHICAL AND LEGAL IMPLICATIONS OF MEDICAL RATIONING Samuel D. Hodge, Jr.,* and Jack E. Hubbard** Life is not measured by the breaths we take but by the moments that take our breath away. —George Carlin * Samuel D. Hodge, Jr., is a professor at Temple University where he teaches law, anatomy, and forensics. He is also a member of the Dispute Resolution Institute where he serves as a mediator and neutral arbitrator. He has authored more than 180 articles in medical or legal journals and has written ten books. He also enjoys an AV preeminent rating and has been named a top lawyer in Pennsylvania on multiple occasions. ** Jack, E. Hubbard, Ph.D., M.D., is a former adjunct professor of neurology at the University of Minnesota School of Medicine and is board certified in both neurology and pain medicine. In addition to his medical training, he holds a doctorate in anatomy. Dr. Hubbard has published widely on many topics in both medical and legal publications. 159 HODGE & HUBBARD 12/1/2020 8:47 AM 160 GONZAGA LAW REVIEW Vol. 56:1 TABLE OF CONTENTS INTRODUCTION ................................................................................................ 161 I. MEDICAL DISCUSSION ......................................................................... 163 A. What Is a Virus? .......................................................................... 163 B. Immune Defense System ............................................................... 165 C. What Is a Coronavirus? ............................................................... 166 D. What Is SARS-CoV-2?.................................................................. 168 E. What Are the Symptoms of COVID-19? ....................................... 170 F. Why Is COVID-19 Fatal? ............................................................ 171 G. Mechanical Ventilation ................................................................ 172 H. What Is the Treatment for COVID-19? ........................................ 174 II. ETHICAL DISCUSSION .......................................................................... 178 A. Ventilator Shortage ...................................................................... 178 B. Allocating Resources ................................................................... 182 C. Other Ethical Considerations ...................................................... 183 III. LEGAL DISCUSSION .............................................................................. 184 A. State Responses ............................................................................ 184 B. Federal Laws ............................................................................... 190 C. Legal Issues.................................................................................. 192 1. Altered Standard of Care ....................................................... 192 2. Duty of Care Laws in an Emergency ..................................... 194 3. Ventilator Safety .................................................................... 195 4. Court Cases Dealing with Ventilators .................................... 196 5. Court Cases Dealing with COVID-19 ................................... 199 IV. CONCLUSION ............................................................................................. 204 HODGE & HUBBARD 12/1/2020 8:47 AM 2020/21 COVID-19: ETHICAL & LEGAL IMPLICATIONS 161 INTRODUCTION Wet markets, Wuhan, coronavirus, zoonotic disease, social distancing, and COVID-19 are terms that had little significance to most people until Wei Guixian, a worker at the Huanan Seafood Wholesale Market, contracted a deadly bug.1 On December 10, 2019, this 57-year-old woman, who initially thought that she had a cold, was hospitalized because her symptoms became progressively worse requiring medical care. An infection developed in both her lungs and she was given anti-flu medications which were ineffective.2 Other people soon started arriving at the hospital with similar symptoms, and it was discovered that they had all recently visited the outdoor market.3 At the end of the month, China informed the World Health Organization (WHO) that Ms. Guixian and several others had tested positive for COVID-19, and the course of history was forever changed.4 The illness soon became a pandemic, and it has been discovered on every continent except Antarctica.5 In the United States, the Centers for Disease Control and Prevention (CDC) has even predicted that between 2.4 million to 21 million Americans will need hospitalization for the virus and that up to 25% of these patients will need lifesaving ventilation.6 With the continued surging of COVID-19 in the United States, these projections may be modest. The coronavirus pandemic has shaken the foundation of societies around the world. From European countries to the United States, the news is replete with stories of social distancing, hardship, and death. Health officials are discussing 1. See Amanda Woods, Shrimp Vendor at Wuhan Market May Be Coronavirus ‘Patient Zero,’ N.Y. POST (Mar. 27, 2020), https://nypost.com/2020/03/27/shrimp-vendor-at- wuhan-market-may-be-coronavirus-patient-zero/. 2. Bethany Allen-Ebrahimian, Timeline: The Early Days of China’s Coronavirus Outbreak and Cover-Up, AXIOS (Mar. 18, 2020), https://www.axios.com/timeline-the -early-days-of-chinas-coronavirus-outbreak-and-cover-up-ee65211a-afb6-4641-97b8- 353718a5faab.html. 3. Woods, supra note 1. The exact origins of the virus remain unknown. Some believe that the market was not the only source of the outbreak since some people infected had not visited the market. Maria Cohut, Novel Coronavirus: Your Questions, Answered, MED. NEWS TODAY, https://www.medicalnewstoday.com/articles/novel-coronavirus-your -questions-answered (last updated Oct. 30, 2020). 4. Allen-Ebrahimian, supra note 2. The first patient who tested positive for the coronavirus in the United States was confirmed by the Offices of Disease Control and Prevention on January 21, 2020. Id. 5. Tim Newman, Coronavirus Myths Explored, MED. NEWS TODAY, https://www.medicalnewstoday.com/articles/coronavirus-myths-explored (last updated Nov. 8, 2020). 6. Robert D. Truog et. al., The Toughest Triage — Allocating Ventilators in a Pandemic, 382 NEW ENGLAND J. MED. 1973, 1973–74 (2020). HODGE & HUBBARD 12/1/2020 8:47 AM 162 GONZAGA LAW REVIEW Vol. 56:1 the potential death toll from the virus at a scale that once seemed unfathomable.7 Millions of people are unable to work at a rate that may exceed the Great Depression, and isolation protocols have forced the shuttering of innumerable businesses,8 stalling the economy and creating a global recession.9 Another round of infections is an ever-present reality, and countries that took immediate prophylactic measures to curtail the spread of the disease are still at risk each time they try to restart their economies. In this regard, there has been a reappearance of the virus in many countries, and only time will disclose if “early and aggressive” interventions were successful.10 A political divide has emerged in the United States between Republicans and Democrats over the severity of COVID-19 and whether to wear a mask despite advice from most experts that wearing a mask is one of the most effective ways to slow down the transmission of the virus.11 This article explores the medical and legal implications of the coronavirus. The medical section discusses the basics of viruses including immunity and then more specifically the coronavirus and SARS-CoV-2, which causes COVID-19. It also explains the symptoms of COVID-19 and why it is such a fatal disease. Finally, the medical section discusses management of COVID-19, focusing on the critical use of ventilators which are in such short supply. The medical section is followed by a discussion of the legal and ethical implications of a national health emergency with attention devoted to the laws that apply as well as the altered standard of care for medical professionals. The article also addresses the implications involving the rationing of ventilators and the litigation that has arisen over the years involving these life-saving devices. 7. Philip Ewing, ‘Challenging Times Are Ahead,’ Trump Says of Extended Social Distancing Guidelines, NPR (Mar. 30, 2020), https://www.npr.org/2020/03/30/821978180 /watch-coronavirus-task-force-holds-briefing-after-extending-distancing-guideline. 8. Id. 9. Philipp Carlsson-Szlezak et. al., Understanding the Economic Shock of Coronavirus, HARV. BUS. REV. (Mar. 27, 2020), https://hbr.org/2020/03/understanding-the-economic-shock- of-coronavirus. 10. Id. 11. Bryan Walsh, The U.S. Divide on Coronavirus Masks, AXIOS (June 24, 2020), https://www.axios.com/political-divide-coronavirus-masks-1053d5bd-deb3-4cf4-9570- 0ba492134f3e.html HODGE & HUBBARD 12/1/2020 8:47 AM 2020/21 COVID-19: ETHICAL & LEGAL IMPLICATIONS 163 I. MEDICAL DISCUSSION A. What Is a Virus? A virus is a genetically transmittable agent contained in an organic particle that can only duplicate within a host organism.12 Viruses assist in building their host species’ genomes, and therefore have played an important, dynamic role in the evolution of all life.13 As early as the 1890s, viruses were suspected to cause disease,14 but because of their extremely small size, they could not be detected with the light microscope. For example, the poliovirus is 30 nanometers (a nanometer is one billionth of a meter) across, roughly 10,000 times smaller than a grain of salt.15 Viruses are responsible
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