This paper examines several decision-making models that have been proposed to limit the use of CPR for COVID-19 patients. My main concern will be to assess proposals for the implementation of unilateral DNRs — i.e., orders to withhold CPR without the agreement of patients or their surrogates.

As the coronavirus pandemic intensified, many communities in the United States experienced shortages of ventilators, intensive care beds, and other medical supplies and treatments. Currently, there is no single national response to provide guidance on allocation of scarce health care resources. Accordingly, states have formulated various “triage protocols” to prioritize those who will receive care and those who may not have the same access to health care services when the population demand exceeds the supply. Triage protocols address general concepts of “fairness” under accepted medical ethics rules and the consensus is that limited medical resources “should be allocated to do the greatest good for the greatest number of people.”1 The actual utility of this utilitarian ethics approach is questionable, however, leaving many questions about what is “fair” unanswered. Saving as many people as possible during a health care crisis is a laudable goal but not at the expense of ignoring patients’s legal rights, which are not suspended during the crisis. This Article examines the triage protocols from six states to determine whose rights are being recognized and whose rights are being denied, answering the pivotal question: If there is potential for disparate impact of facially neutral state triage protocols against Black Americans and other ethnic groups, is this legally actionable discrimination? This may be a case of first impression for the courts to resolve.

“[B]lack Americans are 3.5 times more likely to die of COVID-19 than [W]hite Americans … . Latinx people are almost twice as likely to die of the disease, compared with [W]hite people.” 2

“Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism … . HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal.” — Roger Severino, Office of Civil Rights Director, U.S. Department of Health and Human Services. 3

State governments and hospital facilities are often unprepared to handle a complex medical crisis, despite a moral and ethical obligation to be prepared for disaster. The 2019 novel coronavirus disease (COVID-19) has drawn attention to the lack of state guidance on how hospitals should provide care in a crisis. When the resources available are insufficient to treat the current patient load, crisis standards of care (CSC) are implemented to provide care to the population in an ethical manner, while maintaining an ability to handle the surge. This Editorial aims to raise awareness concerning a lack of preparedness that calls for immediate correction at the state and local level.

Analysis of state guidelines for implementation of CSC demonstrates a lack of preparedness, as only five states in the US have appropriately completed necessary plans, despite a clear understanding of the danger. States have a legal responsibility to regulate the medical care within their borders. Failure of hospital facilities to properly prepare for disasters is not a new issue; Hurricane Katrina (2005) demonstrated a lack of planning and coordination. Improving disaster health care readiness in the United States requires states to create new policy and legislative directives for the health care facilities within their respective jurisdictions. Hospitals should have clear directives to prepare for disasters as part of a “duty to care” and to ensure that the necessary planning and supplies are available to their employees.

Based on background information in this special issue of the journal, possible triage recommendations for the first 4 days following a nuclear detonation, when response resources will be limited, are provided. The series includes: modeling for physical infrastructure damage; severity and number of injuries; expected outcome of triage to immediate, delayed, or expectant management; resources required for treating injuries of varying severity; and how resource scarcity (particularly medical personnel) worsens outcome. Four key underlying considerations are: 1.) resource adequacy will vary greatly across the response areas by time and location; 2.) to achieve fairness in resource allocation, a common triage approach is important; 3.) at some times and locations, it will be necessary to change from “conventional” to “contingency” or “crisis” standards of medical care (with a resulting change in triage approach from treating the “sickest first” to treating those “most likely to survive” first); and 4.) clinical reassessment and repeat triage are critical, as resource scarcity worsens or improves. Changing triage order and conserving and allocating resources for both lifesaving and palliative care can maintain fairness, support symptomatic care, and save more lives. Included in this article are printable triage cards that reflect our recommendations. These are not formal guidelines. With new research, data, and discussion, these recommendations will undoubtedly evolve.

(Disaster Med Public Health Preparedness. 2011;5:S111-S121)