How to sue hospitals over ventilator shortage deaths

breathing machines CPAP Machines Medical Ventilators1662222 / Pixabay

How to Sue Hospitals Over Ventilator Shortage Deaths; And Even Stronger Law Suits Over Failure to Use FDA-Approved Alternatives

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How To Sue Hospitals Over Deaths Related To Ventilator Shortage

WASHINGTON, D.C. (March 30, 2020) - A leading legal website is explaining to lawyers and other visitors how to sue hospitals if their failure to have enough ventilators kills a patient - as is already happening it Italy - but there may be lawsuits with an even higher probability of success if a hospital fails even to try an alternative breathing device recently authorized for use with COVID-19 patients by the federal FDA, and also recommended for the same use by Australia's equivalent medical agency, says public interest law professor John Banzhaf.

The law website explains, with a legal citation, that "courts have at times imposed malpractice liability when a hospital failed to provide a service that might have benefited a patient."

It cites one legal expert who says that "hospitals and other institutional providers have a duty to provide adequate staff and services to deal with UNEXPECTED medical problems. . .  .  The failure of a hospital to maintain adequate services to deal with medical EMERGENCIES can create liability."  [emphasis added]

Another legal expert explains that "both hospitals and hospital management companies have been found negligent for failure to exercise REASONABLE CARE in the maintenance of the hospital's facilities and equipment. The duty to maintain adequate facilities and equipment requires hospitals to have the facilities and equipment necessary to safely carry out the medical treatment it offers." [emphasis added]

Moreover, an analysis by the Washington Post suggests that hospitals might deliberately refuse to stock up on ventilators to deal with the anticipated shortfall, and thereby deliberately cause the death of COVID-19 patients, because ventilators are too expensive (at least $50,000 each, including personnel to operate and maintain them) and, once the cononavirus crisis passes its apex, they would be stuck with very expensive machines for which there is little if any need in the foreseeable future.

Hospitals Trying To Save Money

According to the Washington Post article, "hospitals are holding back from ordering more medical ventilators because of the high cost for what may be only a short-term spike in demand from the cononavirus epidemic."

In a related development, the Washington Post also reports that at least one major U.S. hospital "has been discussing a do-not-resuscitate policy for infected patients, regardless of the wishes of the patient or their family members," because of the anticipated and clearly foreseeable shortage of ventilators, and reports from Italy say that some hospitals there are already refusing to provide ventilators to any patients over 60.

On the website a law professor opined that "a plaintiff's case might be especially strong if a hospital had time between when an emergency loomed and when a patient died to purchase a ventilator that would have saved the patient. Juries, meanwhile, would likely be more sympathetic to hospitals that, early in the emergency, contracted to purchase ventilators (at least simple models) as soon as they were available."

Law professor John Banzhaf provides a slightly different analysis, noting that, to avoid legal liability, a hospital need take only that amount of care which a jury would consider "reasonable" under the circumstances.

Since worst-case-scenarios, or even middle-of-the-road models and other predictions, of the spread of a disease and - in this case - the need for ventilators, can prove to greatly exceed actual need, and that spending over $50,000 per ventilator (especially when personnel and operating costs are included) for devices which may be needed for only a few weeks, and which will then become unnecessary, might not seem "reasonable," a hospital might have a viable legal defense.

Juries May Not Be Sympathetic

But, notes Banzhaf, juries are likely to be unsympathetic to the argument that patients' lives were deliberately sacrificed just to save the hospital money, and the publicity of a trial based upon such a defense could prove devastating to the hospital, regardless of the outcome.

This is especially true since the FDA has just both recommended and approved the use of CPAPs and other far less expensive breathing devices for some COVID-19 patients when hospital ventilators aren't available.

Thus, the agency announced that "the FDA also provides recommendations for other alternatives that should be considered such as devices for treating sleep apnea, continuous positive airway pressure (CPAP), devices."

The agency also said: "Continuous Positive Airway Pressure (CPAP), auto-CPAP, and bilevel positive airway pressure (BiPAP or BPAP) machines typically used for treatment of sleep apnea (either in the home or facility setting) may be used to support patients with respiratory insufficiency provided appropriate monitoring (as available) and patient condition."

So, notes Banzhaf, a much stronger legal case can be made if a hospital did not even try to meet the needs of a COVID-19 patient who needed respiratory assistance to avoid certain death, but who didn't necessarily require - or at least could survive without - the full power and sophistication of a hospital ventilator, by using a simpler medical breathing device such as a CPAP machine, which is largely employed to reduce snoring and other problems of sleep apnea.

The Use Of FDA-Approved Ventilator Alternatives

Banzhaf notes that, in addition to the FDA's validation and legal authorization to use CPAPs and similar breathing devices to treat some COVID-19 patients, there is medical evidence explaining how and why these devices can be valuable in such situations.

There is also an abundance of anecdotal evidence suggesting the same, including the experience of a physician, skilled regarding ventilation issues, who told Banzhaf that he successfully used a CPAP machine, with a simple oxygen concentrator, to help an individual recover from COVID-19.

Since there are literally millions of CPAP and other similar machines already in use around the country to deal with snoring or sleep apnea, many current owners probably could be induced, for a modest financial incentive, to give them up for a few weeks, and some have even indicated on the Internet they they would readily volunteer them, especially if they retained older models, don't use their CPAPs for many reasons, have only mild snoring or other sleep apnea problems, etc.

Moreover, unlike ventilators, which are becoming increasingly difficult to purchase, there are reportedly tens of thousands if not more CPAP and similar breathing machines sitting in medical supply warehouses.

Resue Or Sale Of CPAP Machines After The Crisis Subsides

So hospitals which might decide that it is not "reasonable" to buy X more ventilators - which may be needed only briefly, and then would simply sit in storage - can hardly make the same argument to a jury about refusing to buy X number of CPAP machines for only about $850 each, especially since, after the crisis subsides, they can be sold or leased to people subsequently diagnosed with snoring and/or other sleep apnea issues.

That's why such a legal case for failing to use - much less to even try to use - a CPAP or similar device would be so powerful, suggest the law professor.

Banzhaf, who has been called "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," "Legal Academia's Instigator in Chief," an "Entrepreneur of Litigation," and a "Trial Lawyer's Trial Lawyer," also predicts that juries are not likely to be sympathetic to a hospital which let a patient die simply because they did not want to spend an additional $50,000 - a  small fraction of many bills hospitals typically change an individual patient, or the salaries of doctors and those who operate the hospital - to be prepared to save a life.

Jurors are likely to be even more outraged if a patient was left to die because a hospital did not even attempt to use an FDA-recommended device which costs less that $1000 to try to save his life, he says.

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About the Author

JOHN F. BANZHAF
John F. Banzhaf is an American public interest lawyer, legal activist and law professor at George Washington University Law School. He is the founder of an antismoking advocacy group, Action on Smoking and Health.

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