The Crisis Standard of Care: What Is It, and How Is It Being Implemented During The COVID-19 Pandemic

It’s a tragic milestone in the COVID-19 pandemic: the adoption of a crisis standard of care in locations with record-high COVID-19 transmission and hospital admissions. What does it mean, and how does it work?

Emergency room wait times have multiplied. Reports of patients receiving treatment in hospital hallways and waiting rooms are not uncommon. As hospitals around the country hit their capacity and resource limits, healthcare workers face the challenge of rationing life-saving supplies such as ventilators in the face of demand. 

In an example making national headlines, The Los Angeles County Emergency Medical Services Agency directed EMTs not to transport patients with little chance of survival to hospitals. The implications of these emergency measures are dismal. For the healthcare workers and patients forced into these scenarios, the consequences may be profound. 

So, what is the crisis standard of care? It is first helpful to understand who determines the standards of care and how these terms work in practice.

Defining Standard of Care

The “standard of care” is a legal and procedural standard. Generally, it is based on the hypothetical level of skill and care that a reasonably competent health care provider would provide to a patient in comparable circumstances. It’s also highly subjective. Typically, it is only critically evaluated by peer review panels, during internal investigations, or by a judge or jury.

Malpractice lawsuits often invoke the term to establish what a healthcare provider should have done to prevent injury to a patient.  Take, for example, a patient who alleges that their physician failed to diagnose a terminal illness in time. The patient would argue that the physician’s conduct fell below their standard of care. Both the patient and the physician would bring expert witnesses (also physicians) to testify about why the physician did or did not act in conformity with the standard of care.

If a jury believes that the physician’s conduct fell below the standard of care, then the physician was negligent. If the jury decides that the physician’s conduct satisfied the standard of care, then the physician wasn’t negligent, and the patient will not recover damages. Thus, the standard of care operates as a yardstick to measure whether a provider’s care was “good enough” not to be negligent.

In normal circumstances, the standard of care isn’t outright declared. Instead, it reflects “best practices” for practitioners and subjectively evaluates them against the standards set by their peers, current research, and available technology.

Crisis Standard of Care

In the wake of an emergency event, and to prevent a disaster, a state or local health department can institute a “crisis standard of care” policy. This top-down approach towards the standard of care is very different from its typical bottom-up incarnations—where juries of laypeople listen to trial testimony and decide what did and didn’t strike them as reasonable.

The stomach-turning concept of a “crisis standard of care” carries with it the presumption or determination that there are not enough resources to satisfy the “normal” standard of care. Because of the extraordinary strain levied upon the healthcare system by a crisis, it is unreasonable to expect that current resources, personnel, and supplies could meet the usual standard of care. 

In other words, a hospital’s 100 physicians cannot render the same quality of care to 10,000 patients that they previously rendered to a “normal load” of 1,000 patients. Holding them to such a standard would be unreasonable. 

Therefore, an action that might be considered negligent in normal circumstances, like restricting the dosage of an important medication, may no longer be viewed as such if included as part of a hospital’s rationing plan under a crisis standard of care.

What Triggers a Crisis Standard of Care?

When an ongoing crisis—such as the COVID-19 pandemic—makes the normal operation of emergency medical procedures impossible, it can trigger a crisis standard of care. To determine the need for a crisis standard of care, officials examine the metrics of the emergency. In the COVID-19 pandemic, these metrics have included the available hospital beds, equipment, and staff, as well as trends in the virus’ positivity rate. 

When activated, the focus shifts from individual patients’ primary care to the community population as a whole. The aim is to provide the best possible health outcome for as many people as possible. Decisions rest on assessments of “medical need and likelihood of benefit.” This imposes an immense challenge for practitioners and patients. Most practitioners only think in terms of treating patients—not communities.

An Attempt to Shift Decision-Making

When a health department activates a crisis standard, it seeks to establish new principles and strategies that take policymaking out of clinical healthcare providers’ hands. Instead, the responsibility lies with state and local medical panel committees. These bodies are thought to be more objective decision-makers who can deliver prepared guidance that helps operations run more smoothly, lessens the agonizing decision-making, and ultimately reduces the overall death toll.

And yet, many providers receive guidance only to triage patients and direct more resources towards those most likely to survive. Such directives fall short of the specificity necessary to relieve practitioners of the need to make literal life-and-death decisions on a moment-by-moment basis.

In other words, while the crisis standard of care intends to alleviate some of the pressure on practitioners, it often forces them to make what amount to battlefield-style decisions about who survives. Suspending the typical standard of care doesn’t make them ignorant of the skill and resources that patients should (and under normal circumstances could) receive.

Creating a New Crisis for Practitioners: Guilt, Exhaustion, and Trauma

Ground-level healthcare providers have dedicated their careers to caring for patients as individuals. Thus, the crisis standards may leave them feeling helpless, caught up in the tension between wanting to provide the best possible care for their patients but not having the direction to do so.

What is the individual impact of these circumstances on both providers’ and patients’ mental health? We may find this to be another devastating consequence of the pandemic. Therefore, it is vital to recognize the crisis standard of care as a unique policy measure. It is not a personal reflection of a patient or their healthcare team. Moreover, the end goal under a crisis standard of care remains the same­– to save as many lives as possible.

The COVID-19 pandemic is a dynamic and evolving public health emergency. The laws and situation are fluid, and this article may not reflect the most current situation.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.