Health Law Update

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Providers and health professionals face many challenges in the shifting sands of the Ebola response, including the extent of their duties to each other and their patients and their obligations under a myriad of laws, including OSHA, ADA, FMLA, EMTALA, Title VII and similar state laws. For example, can a hospital require a nurse or physician to provide services to an Ebola-infected patient or a patient suspected of being infected with Ebola? Can a hospital refuse to treat an Ebola patient? Should a facility quarantine its staff caring for a suspected Ebola patient from other patients, staff members and perhaps even from the professional’s own family? How should a facility treat members of its staff who have been in West Africa to help care for Ebola patients or on vacation and want to return to work before the 21st day? How do you handle staff members who allege that the facility is not providing sufficient personal protective equipment or training? Should a hospital withhold certain care because of the risks to staff?  As Governor Andrew Cuomo stated on October 26, a month after the first Ebola patient was admitted to a Dallas hospital, “we’re learning. . . .None of us have been here. It’s an iterative process [and] there is no written Ebola policy [manual]. So you learn; you adjust.”

Ebola is forcing some to consider whether the typical response of the healthcare system to apply medical interventions needs to be weighed against the danger the procedure poses to doctors and nurses, especially where the benefit to a patient appears to be limited. Hospitals must develop guidelines to build a paradigm to define the services to be provided and those to be withheld from a highly contagious patient. Dr. Joseph Fins, M.D., a bioethicist, has asked whether unilateral do-not-resuscitate orders are justified in the case of Ebola-infected patients. Dr. Fins contends, in a recent article, that given the “grave health threat for well-intentioned and heroic staff who might rush in without protective gear, or more likely improperly attired” to perform CPR when balanced against the utility and proportionality of the CPR that “the line should be drawn at CPR [and that] unilateral do-not-resuscitate orders would seem justifiable under these circumstances, if surrogates do not otherwise agree to a DNR order.” However, the law in this area is not nearly as clear. For example, EMTALA provides that if an “individual . . . comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide . . . such treatment as may be required to stabilize the medical condition, or” transfer the patient. 42 U.S.C. 1395dd. The EMTALA law has no explicit exception to the treatment obligation permitting a facility to balance the risks to its staff. A refusal to provide care also can be deemed to be a violation of the Americans with Disability Act if the hospital is equipped to treat persons with Ebola. 42 U.S.C. § 12101.

May a licensed healthcare provider refuse to treat a patient? Are physicians, nurses or other healthcare workers obliged to risk their lives to provide care to an Ebola-infected patient? Physicians and nurses typically are viewed as having a duty of care or obligation of beneficence for patients, including those afflicted during a communicable disease outbreak. However, this duty cannot be used as moral justification by providers to require service without fulfilling their concomitant duty to protect them from harm and support their services. There are, of course, limits to a healthcare worker’s duty. The exact parameters of the reciprocal duties are at best unclear and often dependent upon the efficacy of the treatment, the nature of the provider’s services, and the level of risk to the provider. However, the Centers for Disease Control and Prevention (CDC) has stated that the risk of transmission of Ebola—in and of itself—does not provide a basis for the relaxation of a <a href="http://e.bakerlaw.com/collect/click.aspx?u=LnIciUXVFcWQUtXbZmPYfxuc6thwr93yTVpioqdEzNtbUQQUIfORKNibM8UPPsvIFRDCJXTFxVRXJmM1Pm89DeCU3k2mImhVrf643DACUqNfYZwnMWtBo74GYAbGevx6sQWJkWO0MygSLZ0PdEw0h75AO0gbwK8B&amp;rh=ff001b262651b576da5bae5fa54f98bca7515727" target="_blank" rel="noopener">health professional’s duty</a> to help a patient as the risk of disease transmission is understood and can be readily mitigated. Indeed, some state health regulators have asserted that “professional licenses . . . impose obligations and responsibilities on license holders in active practice . . . to treat and/or care for Ebola patients, while minimizing the risk of Ebola transmission to self and others.” Id. For example, the failure to provide such care “is a potential breach of [the] licensing laws for healthcare professionals,” according to Rhode Island regulators. Id. Further, many hospital medical staff bylaws and contractual arrangements require physicians to comply with American Medical Association ethics guidelines. These ethics guidelines may well require a physician to provide care to an Ebola patient. For example, AMA Opinion 9.131, dealing with HIV patients, stated that a “physician may not ethically refuse to treat a patient whose condition is within the physician’s current realm of competence solely because the patient is seropositive for HIV. Persons who are seropositive should not be subjected to discrimination based on fear or prejudice.”

The ethical and legal issues are complex and in some cases defy simple solutions. However, with the application of common sense, practical solutions to many of the issues can be found. For example, as was the case at Emory, volunteers can be recruited to care for Ebola patients. Some providers are offering additional compensation to those providing care to Ebola patients. Communication between facilities and healthcare professionals is the key to avoiding conflicts and misunderstandings regarding each party’s duties and perceived obligations for Ebola-afflicted patients.

Obligations During the Ebola Crisis: Ethical and Practical Considerations