Commentary: Standard of Care During a Crisis: What Should a Surgeon Know (and Do)?

Abstract

THE STANDARD OF CARE IN TIMES OF CRISIS Caruso et al1 have skillfully consolidated and reviewed the most salient controversies surrounding patient management during a crisis. They conclude that the current concept of standard of care constitutes an adequate guide for medical practice in times of crisis in the United States. Although the traditional definition of standard of care has served well historically, changing circumstances require that the concept be re-examined to protect physicians who are asked and increasingly obliged to think in terms of cost-benefit analyses and population health on the one hand and the best interests of individual patients on the other. Physicians and surgeons who undertake the care of individual patients are obligated, as a rule, to pursue the best interests of their patients. Admittedly, under some special circumstances, including combat, mass casualty settings, and disasters, different duties and obligations may obtain. Thus, the duties of the military surgeon may be construed in terms of a primary obligation to the fighting force as a whole and a secondary obligation to an individual wounded soldier. That may appear to be an extreme example, but, in practice, the medical care deliverable in times of crisis, whether epidemics or mass casualty events, has many similarities to medicine in combat. The best interests of any given individual may be subjugated to the best interests of the fighting force in combat, to the common good during an earthquake, and to the health of populations during epidemics. The World Health Organization (WHO) defines “disaster” as:an occurence disrupting the normal conditions of existence and causing a level of suffering that exceeds the capacity of adjustment of the affected community.2 WHO defines an “emergency” as:a state in which normal procedures are suspended and extraordinary measures are taken to avert a disaster.3 Although these two definitions do not describe or define the term “crisis” explicitly, they do suggest that disasters and emergencies comprise or possibly even constitute the basis for determining that a state of crisis exists.4 More importantly, WHO, among others, links disasters, emergencies, and crises into a chain of events and consequences “in which normal procedures are suspended and extraordinary measures are taken.”3 What WHO does not help us understand is whether normal procedures are suspended in disasters, emergencies, and crises or whether normal procedures should be suspended. Does the suspension of normal procedures and the implementation of extraordinary measures reflect what happens during a crisis, or do these events mark the existence of a crisis? Pestilence, plague, and pandemic have always involved a reorientation from the individual to the collective. Policy makers and authorities often appeal to utilitarian principles, on occasion reduced simply to “the greatest good for greatest number,” to justify such shifts despite the difficulties posed by the uncritical application of utilitarian theory.5-7 However these shifts are justified or explained they have the potential to change what the society seems to demand from the surgeon and, therefore, how his or her obligations are construed. Conventional medical practice changes during crises situations, almost by definition. For this reason, we cannot agree that the existing standard of care suffices to guide and protect the surgeon. STANDARDS OF CARE Standards of care are linked inextricably to the concept of liability. The concept of liability was trenchantly articulated by Sir John Salmond a century ago.He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. Where the remedy is a civil one, the party wronged has a right to demand the redress allowed by law, and the wrongdoer has a duty to comply with this demand. In the case of a criminal remedy, the wrongdoer is under a duty to pay such penalty as the law through the agency of the courts prescribes.8 LIABILITY Liability from the breaching of a standard of care can result from a wrong or a harm.9 A wrong entails the violation of a legal right. Harm entails injury, hurt, or damage. Wrong-doing and harm may both be proscribed.8 Under common law, wrong-doing and harm are both torts. A tort is defined formally as:[A]n act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.10 The key points of the definition are, first, that torts take 2 general forms: Injury arises when legally protected rights are violated and harm transpires from actual damage or hurt. The terms used in this definition predate the modern, plain language use of these words. Second, a tort is a civil, and not a criminal wrong. In many jurisdictions, civil wrongs are tried in different courts than criminal wrongs. In addition, a civil wrong involves the transgression of personal rights, whereas criminal wrongs are acts or behaviors that violate social rules and affect society at large rather than just one person alone. Third, the commission of a tort entails liability or responsibility. If a tort can be proven and liability or responsibility assigned, the courts may assign monetary damages. In summary, torts are predicated on theories of obligation and duty. The extent to which differences between injury and harm matter in modern tort theory is a matter of ongoing academic debate.11,12 The roots of liability are ancient. Starting around the second century CE, Roman law separated public crimes from private crimes. Public crimes were tried in criminal courts. Civil actions were used to try private wrongs. In Anglo-American, or common law, “private wrongs” correspond to tort law. In civil law countries, they correspond to the Roman Law category of “delict.” In modern common law doctrines of torts, torts are distinguished from crimes, as already noted, which are [defined as] wrongs against the state or society at large. The main purpose of criminal liability is to enforce public justice. By contrast, tort law addresses private wrongs and has a central purpose of compensating the victim rather than punishing the wrongdoer. Some acts may provide a basis for both tort and criminal liability. For example, gross negligence that endangers the lives of others may simultaneously be a tort and a crime.10 The importance of this distinction derives from the existence of yet another category of tort, the “public tort,” which has been a relatively recent development. PUBLIC TORTS There exists a category called “public torts” that are not crimes but which give standing to states or public agencies to pursue legal action to recoup the medical and social costs of caring for injuries and harms that affect a large swath of the population. These injuries and harms increase the burden of healthcare across society, which is what renders them “public.” Suits against cigarette manufacturers to recover the costs of treating lung cancer serve as one example of litigation for a public tort.13,14 Public torts may become a factor in medical liability claims for injury or harms to society arising during a crisis. In this regard, if not others, they might affect the standard of care: an act that satisfies the standard of care in ordinary times may not satisfy the standard of care during a crisis, especially if an utilitarian rule (the standard of care requires each physician and surgeon to pursue the greatest good for the greatest number) is applied uncritically as the basis for a public tort. Could public disagreement with public health officials around approaches to curbing the spread of an epidemic, eg, even if reasonable be construed as a public tort if it created additional uncertainty or confusion?15 Could that qualify as negligent behavior, even if reasonable? TORTS AND STANDARDS OF CARE DURING TIMES OF CRISIS The meaning of standard of care is well elucidated by Caruso, Taylor, and Sartwelle in their article in this journal titled “Standard of Care During a Crisis: What Should a Surgeon Know (and Do)?”1 and by Moffett and Moore,16 among many others. The standard of care refers to:the standard of conduct to which one must conform… [and] is that of a reasonable man under like circumstances.17 When the standard of care is violated, a claim of negligence may follow. Negligence constitutes a departure from the standard of care. When negligence results in injury or harm, it may become the basis of a tort claim:Negligence is a departure from a standard of conduct demanded by the community for the protection of others against unreasonable risk…. In dealing with this problem the law has made use of the standard of a hypothetical “reasonable man.” Sometimes this person is called a reasonable man of ordinary prudence, or an ordinarily prudent man, or a man of average prudence, or a man of reasonable sense exercising ordinary care. It is evident that all such phrases are intended to mean very much the same thing. The actor is required to do what this ideal individual would do in his place. The reasonable person standard is an objective standard that provides a comparison between the defendant and the ideal person who is acting reasonably. Factors important in determining reasonableness sometimes include the defendant's profession, custom, age, whether the defendant violated a statute or law, and physical characteristics of the defendant. For example, a blind person is not held to the same standard of care as people who have their eyesight.17 Negligence is rarely straightforward. At the very least, it requires determinations of reasonable risk, ordinary prudence, and reasonable judgment. Many of the underlying details are subject to dispute under any circumstances but especially in times of crisis. If we can agree that a crisis is an extraordinary situation, does the reasonable person standard offer adequate judicious guidance? Is it truly objective? What is the nature of the “ideal” individual and how can anyone be sure what he or she might do in an unprecedented situation? How, then does the idea of “ordinary” care apply? Most importantly, is it realistic to conclude that the reasonable person of ordinary prudence would conclude that reasonable risks never change during crises? If we cannot be sure of that conclusion, how can we be sure that the standard of care remains the same? Although these points cannot be addressed adequately here, they serve to demonstrate why explicit and unambiguous standards of care for crisis situations are as important as they are complicated. Surgeons who care for patients in times of crisis may be subject to increased liability risks. It is at least conceivable that hospitals and their staff might be named in public torts actions. Finally, and despite the most heroic of efforts, no universally acceptable policy-making processes for delivering or prioritizing healthcare in times of crisis has been developed.18-22 PROPOSALS We would offer the following proposals to protect the surgeon from liability claims in times of crisis: With respect to healthcare, the declaration of the commencement and the end of a crisis situation must be made officially. Triage policies must be established a priori. Surgeons and physicians complying with published and accepted triage policies must be shielded from liability arising from such policies. Surgeons complying with public rules must be explicitly shielded when those rules result in harm to patients. Responsible, scientifically based debate must be protected. Surgeons overriding public triage rules for the benefit of individual patients who, in the opinion of the surgeon, reasonably require immediate care must also be protected. Tort reform explicitly addressing liability during crisis conditions and allowing surgeons and physicians a measure of protection under good Samaritan provisions for actions undertaken in support of public health initiatives.23-29 Surgeons caring for individual patients must not be directed to abandon them for the good of the collective. Similar provisions must be put in place for hospitals. For example, hospitals functioning at capacity must not be subject to public tort actions for refusing or transferring patients who would otherwise be protected. Neither must individual physicians who, in good faith, make the decision to refuse them. CONCLUSION Caruso, Taylor, and Sartwelle find that a traditional definition of standard of care “appropriately encompasses the actions of physicians during crises,” vacating the need for a distinct “crisis standard of care.” Their finding is rooted in a particular understanding of the obligations that emerge during a crisis scenario, namely, what might be termed the resource-centric model. Although health care crises are not singularly about resource availability, the resource-centric crisis model has been relied upon, in effect, by prominent medical authorities including the Department of Health and Human Services after the September 11 attacks in New York City, the Institute of Medicine, and several state executive bodies during the COVID-19 pandemic. The resource-centric crisis model agrees that the professional obligations of physicians and surgeons change during a time of crisis in accordance with new responsibilities that might be imposed to manage limited resources so as to “save as many lives as possible” rather than prioritize the life of any single patient. According to the authors, this idea conflates the duty (and liability) of resource stratification with the duties (and liabilities) of clinical care. Without necessarily endorsing that precise configuration of changes in professional duty, we agree that changes may and almost certainly will take place during a crisis. Resource-stratification is rarely the only, or even arguably the primary, dispositive feature defining a medical crisis although it may, in theory, serve as a basis for a form of public tort action. Under crisis conditions, there are alternative considerations which the medical profession must take into account and that extend beyond the resource-centric model. For this reason, and others that have been noted, the usual articulation of the standard of care during crisis conditions may not adequately protect even the most reasonable and responsible surgeon and ought to be revisited.