David N. Hoffman, healthcare attorney, clinical ethicist, and Lecturer in the Discipline of Bioethics, was invited to give testimony to the New York State Legislature on 8/10 regarding COVID-19 deaths in long-term care facilities. He discusses the seriousness of the issues these facilities faced during the pandemic, and how bioethics professionals should train long-term care administrators to move between the ethics of care for individuals and the public health ethics of pandemic containment.
Tell us about the health care challenges presented by the high number of COVID-19 deaths in New York's long-term care facilities, and how you are involved in advocating for solutions that can prevent a recurrence.
The calamity of over 6,400 COVID-19 deaths at long-term care facilities in New York State was exacerbated by the hasty implementation and equally hasty partial repeal of the Emergency or Disaster Treatment Protection Act, which granted civil and criminal immunity from liability for facilities and professionals who arrange for or provide care to anyone during the COVID state of emergency. The law was desperately needed to enable practitioners to make COVID related triage decisions that may not have conformed to the usual standard of medical care. But the immunity law was only part of what needed to be done legally to ensure that the interests of the community and the interests of individual patients were addressed in a balanced matter. Many of us in the healthcare administration and bioethics professions have been and continue to actively advocate for adoption by the legislature of a crisis standard of care that gives clinicians ethical guidance in how to balance public health and individual patient rights and interests. While the state still has not adopted an emergency standard of care, we continue in our advocacy efforts. On 8/10 I was invited to testify at a joint hearing of the state assembly and senate, where I described the negative consequences of granting legal immunity without also defining the relevant standard of care.
Do you think long-term care will change or adapt after COVID-19?
The loss of life at long-term care facilities will have a lasting impact on the ethical and legal standards under which they operate. We have learned valuable lessons from the initial directive issued by the governor that COVID positive patients had to be transferred back to their LTC facilities, as well as the more recent directive that patients can not be returned to a LTC facility from a hospital until they have received a negative COVID test result. Both requirements have serious ethical implications particularly when the applicable standard of care is not legally defined.
Does the field of bioethics inform how long-term care facilities should respond to the COVID-19 pandemic, or how you approached the work you do at hospitals and long-term care facilities? What ethical considerations should health care executives keep in mind when managing patients in this context?
There is no way to prepare clinicians to manage patient care in a pandemic other than with a bioethical frame. In non-pandemic circumstances, clinicians are expressly barred by law from making patient care decisions other that on the basis of what is in the best interest of the patient in front of them, unless there is a specific legal requirement to do so. For example, reporting gunshot wounds or sexually transmitted diseases. We need to train long-term care administrators to move between the ethics of care for individuals and the public health ethics of pandemic containment. Then we need to get them legally empowered, and ethically enabled, to make the right choices.
Learn more about the M.S. in Bioethics program at Columbia University’s School of Professional Studies.
