San Diego Law Review

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The COVID-19 pandemic has overwhelmed many U.S. systems—including the already-strained medical system—intended to protect and care for its citizens. In the United States, New York became the first epicenter of the pandemic, accounting for approximately five percent of global COVID-19 cases by March 2020. Hospitals, health care providers, and policymakers soon recognized that, in New York and beyond, they faced a bleak reality that—if the spread of the virus could not be controlled—there would soon not be enough ventilators for all patients who needed them, despite hospitals practicing “surge capacity” to reduce the need for ventilators by canceling or postponing elective procedures that require ventilators. Across the country, alarms continue to be raised about the potential for insufficient equipment and staff, including ventilators or dialysis machines, personal protective equipment, necessary drugs or vaccines, and trained individuals to operate the equipment and treat patients.

In response to the very real possibility that there will be insufficient resources to properly respond to the COVID-19 pandemic, states have been developing crisis standard of care plans. These plans often authorize the prioritization of patients for scarce resources based on changing circumstances and increased demands. They provide a mechanism for reallocating staff, facilities, and supplies to meet needs during a public health emergency.

Although scarce resource allocation protocols vary tremendously from state to state, they often are based on the principle of saving the most lives possible. As a general rule, they focus on allocating resources solely on clinical medical criteria, in an effort to avoid making decisions based on race, gender, age, or other social criteria. Overall, these plans should be made ethically, fairly, and transparently, in order to ensure public trust. In most instances, these triage protocols are not binding law; rather, they are state-level guidance that the governor can “trigger” at the time of, or after, a declaration of emergency.

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