Devine Millimet | NH Law Firm

The Ethics of Ventilator Rationing and Medical Supply Shortages

Joseph G. Mattson, Esq.
Ashley R. Theodore, Esq.

April 7, 2020

As the COVID-19 pandemic continues, the general public and medical community alike question whether we have sufficient equipment to treat all infected patients.[i]  Of greatest concern is the need for additional ventilators to treat severely ill patients. Since ethics and law guide the practice of medicine, institutions who confront troubling resource allocation issues should look to both ethical and legal concepts when allocating resources during the pandemic.  Although New Hampshire does not expect its patient surge for approximately two weeks[ii], we suggest providers and institutions formulate a resource allocation plan as soon as they are able.

This alert provides general guidance to assist with the allocation process.

In brief, we remind institutions of three guiding principles:

  1. The law obligates medical providers to treat patients in a reasonable manner. The law does not require providers to act identically; medical judgment, as long as it is reasonable, matters.
  2. Medical ethicists struggle with end of life decisions and ethical authorities offer no definitive guidance about care rationing or resource allocation.
  3. Although medical supplies and personnel should be rationed only if necessary, institutions should create a reasoned plan now, before New Hampshire’s expected surge arrives.[iii]

By way of background, New Hampshire’s civil law requires that a doctor treat his patients as a reasonable doctor would under the same or similar circumstances.[iv]  New Hampshire law gives certain rights to patients as well, including the right to “participate in the planning of his or her medical treatment.”[v]  Violating a patient’s rights, or treating a patient in an unreasonable manner that results in injury, subjects a hospital to civil judgments or penalties. 

Medical ethics impose similar requirements on New Hampshire’s doctors.  For example, the American Medical Association reminds its members “[a] physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.”[vi]  Similarly, “[a] physician shall, while caring for a patient, regard responsibility to the patient as paramount.”[vii]

In certain situations, however, medical ethicists acknowledge a doctor’s obligation to his patient must yield to larger societal concerns.  “This [countervailing] obligation requires physicians to be prudent stewards of the shared societal resources with which they are entrusted.”[viii]  Physician stewardship obligations require doctors “to contribute their expertise to developing allocation policies that are fair and safeguard the welfare of patients.”[ix]

The law also recognizes that a doctor’s obligations to his patient are not absolute.  For example, a physician has an affirmative obligation to betray a patient’s confidence if the patient “has communicated to such physician a serious threat of physical violence against a clearly identified…victim.”[x]

In sum, both New Hampshire law and medical ethics leave room for a doctor’s exercise of medical judgment; therefore, we believe rationing of personnel or equipment is permissible, when necessary, if rationing decisions are reasonably made.  “The doctor should not be required to completely suspend medical judgment or conscience, and comply with any request, no matter how unreasonable.”[xi]  Doctors must remember, however, that decisions should still be deliberative and evidence-based to the extent reasonably possible.[xii]  Critically, medical providers cannot base their decision on discriminatory criteria; as the Federal Office of Civil Rights recently reminded hospitals, “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgements about a person’s relative ‘worth’ based on the presence or absence of disabilities.”[xiii]

We suggest that medical staff leaders, from both the intensive care unit and the emergency department, meet now, before New Hampshire’s expected COVID-19 surge, and formulate triage plans.  These plans should establish policies and procedures to address an expected shortage of ventilators and other medical supplies.  We suggest meeting before the surge’s arrival to ensure that individual providers receive institutional guidance and do not make rationing decisions unilaterally. 

When these leaders meet, we suggest remembering that the law requires only that a reasonable basis exist for a healthcare provider to act.[xiv]  Ethical authorities, likewise, allow providers to consider various matters, such as “saving the most lives, saving the most life-years, and the lifecycle principle, which uses stages of life as a criterion.”[xv]  Like most matters of science and law, reason—even in the face of a harrowing pandemic—should continue to guide healthcare providers when making end of life decisions.

If you need assistance with resource allocation, the COVID-19 pandemic generally, or any other healthcare legal assistance, please contact us.


[i] See, e.g., [New York Times Article; one of the Boston Globe Articles, the Wall Street Journal Article]

[ii] See, e.g., Golf, Liquor, schools addressed by Sununu in COVID-19 Twitter Session, Union Leader, April 2, 2020.

[iii] See, e.g., id.

[iv] See N.H. Rev. Stat.  Ann.  507-E:2,; see [common law negligence]

[v] See N.H. Rev. Stat.  Ann.  § 151:21, IV.

[vi] See American Medical Association, Principles of Medical Ethics, I.

[vii] Id., at VII.

[viii] See Physician Stewardship of Healthcare Resources, American Medical Association, Code of Medical Ethics Opinion, 11.1.2.

[ix] See Allocating Resources, American Medical Association, Code of Medical Ethics Opinion, 11.1.3.

[x] See N.H. Rev. Stat.  Ann.  § 329:31, I.

[xi] See, e.g., Mercurio, MD, The Conscientious Practice Policy: admit the allegations in this paragraph. Futlity Policy for Acute Care Hospital, Connecticut Medical Journal, August 2005, pg. 417-419.

[xii] Courts have long recognized a patient’s liberty interest to be involved in his care, but have also recognized that the liberty right is not absolute.  See, e.g., Cruzan v. Dir., Mos. Dep’t of Health, 497 U.S. 261, 278 (U.S. 1990)(a patient’s self-determination rights with regard to medical treatment must be balanced against legitimate state interest); Jacobson v. Massachusetts, 197 U.S. 11, 27 (U.S. 1905)(“There are manifold restraints to which every person is necessarily subject for the common good.”)

[xiii] See, HHS Office for Civil Rights in Action, Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19), March 28, 2020.

[xiv] See, e.g., N.H. Rev. Stat.  Ann. § 507-E:2.

[xv] See, e.g., Biddison, MD, et al, Too Many Patients…a Framework to Guide Statewide Allocation for Scarce Mechanical Ventiliation During Disasters, Contemporary Reviews in Critical Care Medicine, April 2018, pg. 848-854

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