On Monday, lawmakers sent Gov. Phil Murphy a contested measure granting legal immunity to medical professionals and health care facilities treating COVID-19, as the administration and health workers grapple with life and death decisions for patients because of increasing ventilator shortage.
State Health Commissioner Judith Persichilli said her department sent out “last resort guidance” last week for hospitals in just that situation, in an effort to provide some direction to hospitals that may be faced with the daunting bioethical dilemma of rationing limited ventilators among direly ill patients.
Senate Bill 2333 grants civil and criminal immunity to health care professionals, so they will not be liable for injury or death of a COVID-19 patient under their care; the bill is retroactive to March 9, when Murphy signed the public health emergency.
The immunity does not extend to fraud, actual criminal activity, malice, “gross negligence, recklessness, or willful misconduct.” And it only extends to patients being treated for COVID-19 during this time frame—medical providers offering any other medical services would not be granted legal immunity.
The bill was approved in a 30-2 vote in the Senate and a 73-1 vote in the Assembly with five abstentions; both sessions were done remotely.
“Here I have a patient who is viable and a patient who is less likely viable, I have two patients and one ventilator. So if I choose to treat the patient that is more viable, I am subject to lawsuit by the family of the patient who is less viable,” Assembly Health Chair Herb Conaway, D-7th District, said on Monday.
The bill would “take away this liability threat when you’re in a situation where there simply are not enough resources to treat all of the people that you may wish to treat,” Conaway added.
New Jersey currently has 1,550 ventilators and needs another 950, Murphy said at a Monday news conference in Trenton. The administration was down to just 61 ventilators over the weekend before receiving a shipment of 200 more, the governor added.
Under last week’s guidance, hospital staff should hold off on triaging ventilators until they’ve exhausted any other alternative equipment that could deliver oxygen and do the job of the ventilator, according to Persichilli.
Once the hospital has burned through any anesthesia machines and continuous positive-air-pressure machines – which are used to treat patients with sleep apnea– and “anything that can be used to support pulmonary function of patients,” then hospitals should activate those policies.
“These triage guidelines are intended to be a last resort,” Persichilli said. “We hope and have planned that they will not be needed.”
Those guidelines would aim to ensure “that no one is denied care based on stereotypes, assessment of quality of life, or judgment about a person’s worth based on the presence or absence of disabilities or other factors.”
Persichilli warned that the department would not tolerate hospitals making decisions based on patient attributes such as race, religion, national origin and nationality, ancestry, marital status, sexual orientation, gender identity or expression, disability, place of residence, socioeconomic status or insurance coverage.
“No exclusion criteria. Period. That’s an absolute statement,” the governor said. “Turns out you can’t buy your way to salvation and that’s the way it should be … and no discrimination of any kind. We can’t say that more strongly.”