The world’s memory of this virus will be different when lawsuits are filed two years from now and juries try the cases two to three years after that. The acuteness of the issues, the confusion, the limited resources and the changing daily directives will not be remembered in any meaningful detail. Accordingly, the Risk Management dogma that has always emphasized charting is more important now than usual. If the standard of care is judged as care “under the same or similar circumstances”, and those circumstances are “delivering care in a COVID-19 pandemic”, how will we show those circumstances in a 2025 jury trial? We recommend vigilant documentation.
In consideration of Alabama’s sample ventilator allocation guidance, and exemplary language from other states, Starnes, Davis, Florie, LLP. recommends the below language be charted in circumstances where a resource may be diverted away from a patient who could be in need. The sample language specifically applies to decisions in triaging a patient and any initial treatment decisions regarding a specific (limited) resource.
In making a clinical judgment regarding the allocation of [resource] during the [COVID-19 pandemic / public health emergency], I have assessed the patient’s history, symptoms, and condition and considered the limited availability of resources and clinical factors associated with the allocation of limited resources. My clinical judgment, under the totality of the circumstances, is that [clinical decision] is appropriate for this patient as an alternative medical intervention.
We also recommend against language or specific explanations to patients as follows:
· Language / an explanation to a patient or a patient’s family explicitly referencing financial issues or considerations.
· Language / an explanation to a patient or patient’s family focusing the considerations on the resource itself as opposed to the specific patient.
· Language / an explanation to a patient or patient’s family specifically documenting the condition of other patients or the specific condition of other patients receiving resources.
· Language / an explanation to a patient or a patient’s family specifically quantifying any patient’s likelihood of successful treatment – that being the patient receiving the resource and the patient not receiving the resource.
· Language / an explanation to a patient or a patient’s family specifically comparing patients or outcomes.
· Language / an explanation to a patient or a patient’s family specifically referencing medical ethics. Medical ethics underpins all clinical decisions and does not need to be specifically included in the chart.
This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.