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Legal and Ethical Legal and Ethical ggIssues in Medical Issues in Medical

TriageTriagePatricia GrayPatricia Gray

Health Law & Policy InstituteHealth Law & Policy InstituteOctober 30, 2009October 30, 2009

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Public ExpectationsPublic Expectations

Plans should address taking care of the sickest Plans should address taking care of the sickest patientspatients

ANDAND

Plans should address protecting the greatest Plans should address protecting the greatest number of people possiblenumber of people possible

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What is meant by What is meant by “Triage”?“Triage”?

Determining priorities for treatmentDetermining priorities for treatment

Who will survive or medically progress with Who will survive or medically progress with d h illd h illtreatment and who will nottreatment and who will not

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Needs of Community vs. Needs of Community vs. IndividualIndividual

Raises ethical Raises ethical andand legal concernslegal concerns

Focus on protecting the community may mean Focus on protecting the community may mean l f h i di id ll f h i di id lless care for the individualless care for the individual

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Altered Standards of CareAltered Standards of Care

Public health emergencies shift focus from individual Public health emergencies shift focus from individual outcomes to population outcomesoutcomes to population outcomes

Public health emergencies may require altered standards Public health emergencies may require altered standards of care.of care.

Limited resources alter access to vaccines and antiLimited resources alter access to vaccines and anti--viralsvirals Limited space alters access to hospitals’ ventilatorsLimited space alters access to hospitals’ ventilators Limited healthcare workforce alters access to providersLimited healthcare workforce alters access to providersLimited healthcare workforce alters access to providersLimited healthcare workforce alters access to providers

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Texas LawTexas Law Health and Safety Code 166.044(d):Health and Safety Code 166.044(d):

The standard of care that a physician, health care facility, or health care professional The standard of care that a physician, health care facility, or health care professional shall exercise under this section is that degree of care that a physician, health care shall exercise under this section is that degree of care that a physician, health care facility, or health care professional, as applicable, of ordinary prudence and skill would facility, or health care professional, as applicable, of ordinary prudence and skill would have exercised under the same or similar circumstances in the same or a similar have exercised under the same or similar circumstances in the same or a similar community.community.

Ci il P ti & R diCi il P ti & R di 74 15374 153 Civil Practice & RemediesCivil Practice & Remedies 74.153:74.153:

In a suit involving a health care liability claim against a physician or health care In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency provider for injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing the suit may prove that the treatment or emergency department, the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar ordinarily prudent physician or health care provider in the same or similar circumstances.circumstances.

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IOM Calls for National GuidelinesIOM Calls for National Guidelines

h llh ll Who will receive scarce resources?Who will receive scarce resources?

How will priorities be determined?How will priorities be determined?

What is the “trigger” for implementing a What is the “trigger” for implementing a pandemic response plan?pandemic response plan?

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Sequential Organ Failure Sequential Organ Failure Assessment (SOFA)Assessment (SOFA)

Adopted by: New York, Minnesota, Utah and Adopted by: New York, Minnesota, Utah and Colorado to determine allocation of ventilators Colorado to determine allocation of ventilators to patientsto patients

Texas plan recommends use of SOFATexas plan recommends use of SOFA

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Pandemic Flu ResponsePandemic Flu Response

Focus on community vs. patient centered care: distributive Focus on community vs. patient centered care: distributive justicejustice

Utilitarian approach directs treatment to those who Utilitarian approach directs treatment to those who need/benefit from it; withholds from those who would notneed/benefit from it; withholds from those who would not

Equal chances directs treatment on first come, first served basisEqual chances directs treatment on first come, first served basis

Exclusion criteria implicate disability community concernsExclusion criteria implicate disability community concerns

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Addressing concerns of Addressing concerns of vulnerable populationsvulnerable populations

Lack of protocolsLack of protocols

DNR orders and Advance DirectivesDNR orders and Advance Directives

Discrimination prohibitionsDiscrimination prohibitions

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SurvivabilitySurvivability

Application of principle must be clearApplication of principle must be clear

Review exclusion criteria to ensure nonReview exclusion criteria to ensure non--di i i li i l bldi i i li i l bldiscriminatory applications to vulnerable discriminatory applications to vulnerable populationspopulations

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Implementing a PlanImplementing a Plan

l f bl h l hl f bl h l h Declaration of public health emergencyDeclaration of public health emergency

Impact isolated to small geographic areaImpact isolated to small geographic area

Need for proactive planningNeed for proactive planning

Clear concise consistent adherence to plans toClear concise consistent adherence to plans to Clear, concise, consistent adherence to plans to Clear, concise, consistent adherence to plans to facilitate public compliancefacilitate public compliance

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Patricia GrayPatricia Gray

Director of Research and External Affairs,Director of Research and External Affairs,,,

Health Law & Policy InstituteHealth Law & Policy Institute

pgray@central.uh.edupgray@central.uh.edu