To the Editor: In their Commentary, Mr Hodge and Ms Courtney1 proffered a public health legal standard of care during emergencies. This is problematic for 2 reasons. First, it is unclear what principles ought to underlie a determination of fair treatment in accordance with communal or public health interests. Second, a physician who does not conform to this nonmedically indicated standard of care may arguably be liable for medical malpractice.
Just as there are no value-free medical criteria for allocation of scarce resources, there are no value-free public health criteria.2 The cited example of withholding ventilators from specific patients only amplifies the complexity of ethical (rather than legal) decision making. In 2008, the New York State Department of Health convened a working group that issued guidelines proposing to both withhold and withdraw ventilators from patients with the highest probability of mortality, in order to benefit patients with the highest likelihood of survival.3 This is classic utilitarianism that aims to save more lives and benefit the greatest number of individuals.
But there are alternative principles. Treating on a first-come, first-served basis may appear equally just. Perhaps prioritizing vulnerable populations on the basis of age, sex, or health status would also be deemed reasonable. Any (or some combination) of these principles may underlie fair treatment that serves public health. But scarce resources cannot be cited as a dispositive issue, because scarcity exists during emergent and nonemergent scenarios alike. Consequently, withholding (and especially withdrawing) ventilators from specific patients is a tenuous example of mitigating a public health threat.
Historically, the harm principle has dictated efforts to override individual reluctance to adopt a particular intervention (eg, vaccination) by citing the risk that nonadherence would pose to others (eg, disease exposure).4 In contrast, Hodge and Courtney suggested denying access to particular interventions—not to curb a foreseeable threat to others but to satisfy a benefit conferred upon society as a whole in accordance with some undefined ethical theory.
Altering the standard of care might expose reluctant physicians to potential liability. Physicians should not be penalized for adhering to a medically indicated standard of care in treating patients. Emergencies should be neither an excuse for, nor an explanation of nonconformity with the applicable standard of care. Rather, they present opportunities for a transparent discussion of ethical decision making to choose among different, and perhaps competing, value judgments.
Financial Disclosures: None reported.
Country-Specific Mortality and Growth Failure in Infancy and Yound Children and Association With Material Stature
Use interactive graphics and maps to view and sort country-specific infant and early dhildhood mortality and growth failure data and their association with maternal
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