Doctors need room to make wrenching decisions

Doctors are trained to do everything they can to save their patients’ lives. This imperative is fundamental and deeply ingrained.But the COVID-19 pandemic is turning this goal — and the very practice of medicine — upside down.

Surging numbers of patients and the pronounced lack of protective equipment are putting countless physicians and nurses at risk, forcing them to re-evaluate how they care for their patients. They are practicing battlefield medicine and making decisions that could put them at risk of civil or criminal liability. On Friday, Gov. Andrew Cuomo signed legislation immunizing healthcare providers for medical decisions they make in the course of providing care to victims of the pandemic during the duration of the emergency that he declared on March 7. This action is vital to protecting doctors and nurses on the front lines of this crisis. Other states should follow New York’s example with dispatch. 

Whether to provide CPR to a COVID-19 patient on a ventilator offers one stark example of the many decisions doctors are being forced to make, illustrating the risks they face in making these choices, and why other states should protect their healthcare workers from legal liability for these decisions. The virus attacks not only the lungs but also the heart, and in Britain, as of March 26, about two-thirds of COVID-19 patients on ventilators in intensive care units had suffered heart or lung failure and died. Ordinarily, when a patient’s heart or lungs stop, doctors call a “code” and perform cardiopulmonary resuscitation. Doctors and nurses crowd closely around the patient, detach the patient from the ventilator, commonly pump a breathing bag by hand over the patient’s mouth, and stick needles into arteries and veins to inject drugs and draw blood and check oxygen levels. Spit and blood can splatter around the room.

Performing CPR on a COVID-19 patient, especially with masks and other personal protective equipment now in such short supply, puts doctors and nurses at heightened risk of becoming infected themselves. The virus has already sickened medical staff members at New York hospitals at alarming rates. And despite these heroic procedures, the chances that COVID-19 patients whose hearts and lungs stop in the ICU will leave the hospital alive are exceedingly unlikely. Patients’ suffering may thus only be prolonged. 

Customarily, when doctors know that extraordinary measures will be futile, they speak with the patient and the patient’s family about the possibility of writing a do-not-resuscitate order, known as a DNR. But many family members now want everything done to help loved ones with COVID19, even when there is no likelihood the patient will survive.

This presents a profound dilemma for doctors and nurses. If they refrain from performing CPR on a COVID-19 patient, against the wishes of the patient or family, they may be held legally liable. This conflict is putting doctors and nurses under severe stress when they are called to perform CPR with virtually no chance of success, endangering themselves — and their families — in the process. I have never seen these healthcare providers so upset.

Doctors will soon face additional decisions about whether to start particular patients on ventilators, or remove them, given the shortage of these machines. But for patients who are already on ventilators, questions about CPR are front and center, agonizing physicians.

Now, at least, healthcare providers in New York can use their clinical judgment and won’t have to worry about being sued or prosecuted for their decisions, assuming, of course, they were not the product of wilful or intentional or reckless misconduct, gross negligence or the intentional infliction of harm. Still, challenges remain. Families will surely still be angry, upset and antagonistic when a loved one is removed from a ventilator so the machine can be used for another patient, or when doctors let patients die without attempting CPR. Will New York’s law give providers sufficient immunity from lawsuits of prosecution? And even with protection, will doctors feel comfortable removing some patients from ventilators in a triage situation, or refrain from administering CPR?

Certainly, policymakers and healthcare providers must be clear to the public about the rationale behind the law, and they must develop standards of care to guide decision-making. They must also address the concerns of those who fear that doctors may abuse their professional discretion under this protection of immunity. Ethnic and racial groups that have long faced discrimination and lower quality healthcare may worry that this action could lead to further disparities in the care they receive. And the disability community is already concerned that doctors might discriminate against them, letting them die in order to help “healthier” patients. Opponents of this immunity provision may argue that families should still be able to demand that everything possible be done to try to aid a patient’s life.But given the current extreme shortage of equipment and, increasingly, medical staff, we must weigh those requests against the saving of many other lives.

That’s why granting physicians and other healthcare providers legal immunity in these situations is critical, since no hospital wants to adopt such a policy on its own. These are hard choices. No one wants to make them, but the pandemic is forcing our hand. In the current crisis, the health of all Americans, including our doctors and nurses, is at stake.