Maryland Attorney General Opinion 100OAG160

160 [100 Op. Att’y

HEALTH

PUBLIC HEALTH EMERGENCY PREPAREDNESS – STATE’S

AUTHORITY TO RATION VENTILATORS DURING PANDEMIC –

PHYSICIAN IMMUNITY

December 28, 2015

The Honorable Terri L. Hill, M.D.

The House of Delegates of Maryland

There is growing concern among health experts across the

globe that a large-scale influenza pandemic, like the “Spanish Flu”

that last century killed tens of millions of people worldwide, may

occur in the coming years. If such a pandemic occurs, there may

not be sufficient resources to care for all of the patients who arrive

at the hospital in respiratory distress. For example, mechanical

ventilators are typically used to help patients breathe under these

circumstances, but experts predict that there will not be enough

ventilators to meet demand. See, e.g., All Hazards Medical

Preparedness and Response: Hearing Before the Senate Subcomm.

on Bioterrorism and Public Health Preparedness, 109th Cong. 22

(2006) (testimony of Thomas Inglesby, Center for Biosecurity,

Univ. of Pittsburgh Med. Ctr.). You have asked two questions

related to the allocation of ventilators during an influenza

pandemic:

In planning for an influenza pandemic or

similar outbreak that causes widespread and

severe respiratory distress, what is the extent

of the State’s legal authority to adopt criteria

for allocating ventilators?

If the State adopted criteria for allocating

ventilators that might require a hospital or

clinician to remove a patient from a ventilator

in order to make the ventilator available to

another individual, would the hospital or

clinician risk liability for doing so?1

1

We understand you to be asking about criteria that would be

mandatory for hospital physicians and staff. Our survey of other states’

efforts at pandemic preparedness, however, indicates that most, if not all,

contemplate non-binding criteria. See infra note 2. We will base our

analysis on the assumption that the criteria adopted would be mandatory

Gen. 160] 161

You do not ask, and we do not discuss, what criteria should

be used to decide who will have access to a ventilator or whether it

is morally or ethically appropriate to remove a struggling patient

from a ventilator to make room for another patient with a better

chance of survival. These issues are not for us to decide. Instead,

we will predict as best as we can what the courts might decide about

the State’s legal authority in this context.

In our view, a court would likely find that the Governor has

authority to adopt criteria for the allocation of ventilators pursuant

to his power to order public health officials to ration scarce medical

resources during a declared emergency under the Catastrophic

Health Emergencies Act. See Md. Code Ann., Public Safety (“PS”)

§ 14-3A-03(b)(2)(i). The Governor could enlist the Department of

Health and Mental Hygiene (“DHMH” or the “Department”) to

assist in formulating those criteria in advance, but we doubt the

Department would be able to implement the criteria absent an

executive order from the Governor under the Act. If the State

adopts allocation criteria under this statute, a hospital or clinician

would have immunity from liability for actions taken in accordance

with those criteria.

In drafting the criteria, care must be taken to ensure that the

criteria do not run afoul of constitutional limitations. Although we

doubt that a court would conclude that the State is constitutionally

prohibited from adopting allocation criteria if there is a dire

shortage of ventilators during a health emergency, substantive and

procedural due process may well limit the State’s policy choices in

this area. To reduce the risk that the criteria would violate due

process, the criteria should (a) be implemented only when there is

no other choice, (b) reduce the likelihood that individuals with a

significant chance of survival will be removed from a ventilator

without consent, and (c) afford procedural protections to patients

who are removed from a ventilator or denied ventilator use.

I

Background

Mechanical ventilators are machines that help patients breathe

when they are not able to do so on their own. They are critical tools

for the treatment of individuals with respiratory illnesses, including

but will identify those places where the analysis might diverge if the

criteria are voluntary.

162 [100 Op. Att’y

severe influenza. Typically, “all patients who have a medical need

for and can benefit from mechanical ventilation and who consent

to treatment (or have the concurrence of a surrogate) are provided

this type of care.” Ventilator Document Workgroup, Centers for

Disease Control and Prevention, Ethical Considerations for

Decision Making Regarding Allocation of Mechanical Ventilators

during a Severe Influenza Pandemic or Other Public Health

Emergency, at 8 (2011), www.cdc.gov/about/advisory/pdf/

ventdocument_release.pdf. In “routine clinical circumstances,”

ventilators are typically allocated on a “first come, first served”

basis. Id. at 9.

As long as a patient continues to need the ventilator, the

normal rule is that the patient will not be withdrawn from the

ventilator without consent. In everyday clinical

practice, “[p]hysicians do not unilaterally withdraw mechanical

ventilation against a patient’s wishes in order to provide it to

someone else.” Douglas B. White et al., Who Should Receive Life

Support During a Public Health Emergency? Using Ethical

Principles to Improve Allocation Decisions, 150 Annals of

Internal Med. 132, 132 (2009). This practice is consistent with

the traditional standard of care in the medical profession. See

Katsetos v. Nolan, 170 Conn. 637, 654 (1976) (“[A] physician is

under the duty to give his patient all necessary and continued

attention as long as the case requires it . . . .” (internal

quotation marks omitted)). Thus, under normal circumstances,

“[i]f a provider removes a ventilator from a patient against the

patient’s or the patient’s family’s wishes and with foreseeable

harm or death likely to result, the provider may be vulnerable

to charges of negligent homicide, manslaughter, or criminal

negligence” as well as to civil liability. Darren Mareiniss et al.,

ICU Triage: The Potential Legal Liability of Withdrawing ICU

Care During a Catastrophic Event, 6:6 Am. J. of Disaster

Med. 329, 333, 334 (2011).

The normal practice, however, assumes an adequate supply

of ventilators, when decisions about one patient’s treatment

do not affect other patients’ chances of survival. During an

influenza pandemic, hospitals may instead be faced with an

unprecedented shortage. The United States maintains a

stockpile of ventilators far short of those needed to respond to a

pandemic-scale public health emergency. See Lewis Rubinson

et al., Mechanical Ventilators in U.S. Acute Care Hospitals,

4 Disaster Med. and Pub. Health Preparedness 199 (2010).

As the United States Centers for Disease Control and

Prevention (“CDC”) has estimated, “[i]n a typical city [during]

a pandemic of moderate duration,” influenza patients

“would be predicted to require . . . 198% of all available

Gen. 160] 163

ventilators.” Inglesby, supra, at 1. In addition, hospital staff

capable of operating ventilators may be in short supply during a

health emergency, further exacerbating the shortage of the

ventilators themselves. See John L. Hick et al., Allocating Scarce

Resources in Disasters: Emergency Department Principles, 59

Annals of Emergency Medicine 177, 179 (2012). Hospitals would

thus be forced to decide which patients are to receive a ventilator

and which are not. Under those conditions, whether to continue the

ventilation of one patient may well be a life-or-death decision, both

for the patient and for others awaiting access to a ventilator.

This suggests that during a pandemic it might be “necessary

to re-evaluate the ethical considerations that govern the usual

provision of care.” CDC Ventilator Document Workgroup, supra,

at 8. If ventilators are allocated according to the principle of

“sickest first,” or based on the principle of “first come, first

served,” then limited resources might be given to patients “who

ultimately are too sick to survive,” while other patients, “who may

have a much better prognosis if they receive intensive care, will not

have access to it.” Id. at 9. Similarly, because some patients who

are on ventilators will not respond to treatment, medical

professionals might be forced to make decisions “regarding

whether patients should be removed from ventilators if this is

needed to free up ventilators for others who may have a much better

chance of recovery.” Id.

Many States, health care professionals, and federal agencies

are considering how to respond to the potential shortage of

ventilators during an influenza pandemic. One possibility is to

continue to apply the principle of “first come, first served” in

disaster situations; that would seem to be an easily-administered,

value-neutral way of allocating scarce resources. Other scholars

and policy experts suggest that health care providers and the State

should instead try to save as many lives as possible by allocating

scarce resources to the patients who are most likely to benefit. Id.

at 12. Finally, some scholars assert that the distribution of scarce

resources during a pandemic should be governed by the “life cycle”

or “fair innings” principle, which in practice “gives relative priority

to younger individuals over older individuals.” Id. at 15. This is

based on the premise that “it is a valuable goal to give individuals

equal opportunity to pass through the stages of life.” White, supra,

at 135.

At the state level, New York has taken the lead in developing

criteria for the allocation of ventilators during a pandemic by

164 [100 Op. Att’y

issuing draft guidelines in 2007 and publishing its final report in

2015. See New York State Dep’t of Health and Task Force on Life

and the Law, Ventilator Allocation Guidelines (Nov. 2015) (“New

York Guidelines”). New York’s report recommends “voluntary,

non-binding guidelines” for health care facilities to follow when a

flu pandemic outstrips the available supply of ventilators. Id. at 8.

These guidelines prioritize “sav[ing] the most lives” and advise that

hospitals should provide ventilators to patients who have the best

chance of survival with the support of a ventilator based on certain

objective clinical criteria for assessing patient prognoses. Id. at 12.

By contrast, “[p]atients with the highest likelihood of survival

without medical intervention, along with patients with the smallest

likelihood of survival with medical intervention, have the lowest

[priority for] access to ventilator therapy.” Id. (emphasis in

original).

New York’s guidelines also recommend that hospitals

reevaluate all patients on ventilators every 48 and 120 hours to

determine whether those patients are benefitting from the

treatment. Id. at 14-15, 61-67. A patient who is not improving will

be withdrawn from the ventilator if there is another patient waiting

with a significantly greater chance of survival. Id. at 14-15, 68-69.

The guidelines, however, expressly rejected an approach under

which a patient would be removed from a ventilator, even if that

patient were improving, whenever a new patient arrived with a

better chance of survival. Id. at 48-49. The Task Force concluded

that such an approach would not give patients “a sufficient trial on

the ventilator to determine whether the patient was benefitting from

the treatment” and would “evoke[] an ICU war of all against all.”

Id.

A number of other states have followed New York’s example

by creating their own ventilator allocation criteria.2 Maryland has

also recently begun considering the issue. See Elizabeth L.

Daugherty Biddison et al., The Community Speaks: Understanding

Ethical Values in Allocation of Scarce Lifesaving Resources

During Disasters, 11 Annals of the Am. Thoracic Soc’y 777

(2014). In 2013, the Johns Hopkins Medicine Office of Emergency

2

New York’s final report includes a comprehensive list of other

states’ ventilator allocation guidelines, including Alabama, Alaska,

Colorado, Florida, Indiana, Iowa, Kansas, Minnesota, New Mexico,

South Carolina, Texas, Utah, and Wisconsin. See New York Guidelines

at 51 n.99. As best as we can tell, these other state plans also seem to

contemplate voluntary, non-binding guidance rather than mandatory

criteria.

Gen. 160] 165

Management, the Johns Hopkins Berman Institute for Bioethics,

and the Center for Health Security at the University of Pittsburgh

Medical Center collaborated on a pilot study aimed at developing

“specific deliberative democratic procedures that could ultimately

be used in a statewide process to inform a Maryland framework for

allocating scarce healthcare resources during disasters.” Id. at 777.

These groups hope to encourage a large-scale public engagement

process that will result in “a common framework in Maryland for

the allocation of scarce healthcare resources during disasters.” Id.

at 783. It is our understanding that this ongoing effort prompted

your opinion request to resolve some of the legal uncertainty

surrounding emergency preparedness in Maryland.

II

Analysis

A. The State’s Power to Set Ventilator Allocation Criteria

Under the Maryland Catastrophic Health Emergencies Act

Your first question is whether the State has statutory authority

to adopt binding criteria for the allocation of mechanical ventilators

during a flu pandemic. We believe that it does, and that the power

to do so is vested primarily in the Governor, with the Department

of Health and Mental Hygiene holding certain complementary

powers.

1. The Governor’s Power Under Title 14 of the Public

Safety Article

In general, the Governor has significant authority to respond

to a declared emergency. See PS § 14-107(d). For example, if

“necessary in order to protect the public health, welfare, or safety,”

the Governor may “suspend the effect of any statute or rule or

regulation of an agency of the State or a political subdivision” or

order the “evacuation of all or part of the population from a stricken

or threatened area” of the State. PS § 14-107(d)(1)(i), (ii). This

general power applies to a wide range of different types of

emergencies, including “a public health catastrophe.” PS § 14-

101(c)(2).

More importantly for our purposes, the Governor also has

broad authority to respond to certain health emergencies under

Maryland’s Catastrophic Health Emergencies Act. This statute

applies when the Governor declares a “catastrophic health

emergency,” defined as “a situation in which extensive loss of life

166 [100 Op. Att’y

or serious disability is threatened imminently because of exposure to

a deadly agent.” PS § 14-3A-01(b). “[D]eadly agent,” in turn,

means “anthrax, ebola, plague, smallpox, tularemia, or other

bacterial, fungal, rickettsial, or viral agent, biological toxin, or

other biological agent capable of causing extensive loss of life or

serious disability.” PS § 14-3A-01(c)(1) (emphasis added). The

Act thus encompasses the type of flu pandemic that you have

posited. The law was passed in 2002 as part of an “overall anti-

terrorism package” following the terrorist attacks of September 11,

2001. Floor Report on H.B. 296, 2002 Leg., Reg. Sess., at 8 (2002);

see also 2002 Md. Laws, ch. 1. It was based in part off the Model

State Emergency Powers Act (“Model Act”), which was drafted by

the Center for Law and the Public’s Health as a template for States

considering legislation on the topic. See The Model State

Emergency Health Powers Act (Ctr. for Law & the Public’s Health,

Georgetown and Johns Hopkins Universities 2001), available at

www.publichealthlaw.net/MSEHPA/MSEHPA.pdf (last visited

Dec. 10, 2015).

Under the statute, the Governor may issue a proclamation that

declares a catastrophic health emergency and authorizes him to

exercise a broad array of governmental powers targeted to

problems related to the emergency. PS § 14-3A-02. The Governor,

for instance, may “require individuals to submit to vaccination or

medical treatment” and “require individuals to go to and remain in

places of isolation or quarantine.” PS § 14-3A-03(b)(3)(ii), (iv).

The Governor may also order the Secretary of Health and Mental

Hygiene or other designated official to:

control, restrict, or regulate the use, sale,

dispensing, distribution, or transportation of

anything needed to respond to the medical

consequences of the catastrophic health

emergency by:

(i) rationing or using quotas;

(ii) creating and distributing stockpiles;

(iii) prohibiting shipments;

(iv) setting prices; or

(v) taking other appropriate actions.

PS § 14-3A-03(b)(2) (emphasis added). The question is whether

this statutory language grants the Governor authority to set criteria

for the allocation of ventilators.

Gen. 160] 167

When interpreting statutes, we “begin[] with the plain

language of the statute, and ordinary, popular understanding of the

English language dictates interpretation of its terminology.”

Maryland Econ. Dev. Corp. v. Montgomery County, 431 Md. 189,

199 (2013) (citation and quotation marks omitted). But “the plain

language must be viewed within the context of the statutory scheme

to which it belongs, considering the purpose, aim, or policy of the

Legislature in enacting the statute.” Employees’ Ret. Sys. of

Baltimore v. Dorsey, 430 Md. 100, 113 (2013) (citations and

internal quotation marks omitted). After all, the goal of statutory

interpretation “is always to discern the legislative purpose, the ends

to be accomplished, or the evils to be remedied by a particular

provision.” People’s Ins. Counsel Div. v. Allstate Ins. Co., 408 Md.

336, 351 (2009) (internal quotation marks omitted).

In our opinion, the Governor’s broad powers during a

catastrophic health emergency include allocating access to

ventilators. Following the proclamation of a catastrophic health

emergency, “[t]he Governor may order the Secretary or other

designated official to control, restrict, or regulate the use” and

“distribution” of “anything needed to respond to the medical

consequences of the catastrophic health emergency” by “rationing

or using quotas” or “taking other appropriate actions.” PS § 14-

3A-03(b)(2). During a pandemic, ventilators will likely be “needed

to respond to the medical consequences of the catastrophic health

emergency” and thus subject to § 14-3A-03(b)(2).

Moreover, the power to “control, restrict, or regulate the use”

of such an item “by rationing” encompasses the power to allocate

scarce medical resources. The verb “to ration” has been defined as

“to distribute or divide (as commodities in short supply) in an

equitable manner or so as to achieve a particular object (as

maximum production of particular items).” Webster’s Third New

International Dictionary 1885 (1993). That definition would seem

to fit comfortably the ventilator allocation criteria we are

discussing here. The definition is also fairly similar to the

definition of “allocate,” which includes “to distribute or to divide

and distribute according to relative contribution to an objective

whether on an equal, proportional, or judiciously calculated basis.”

Id. at 57; see also Medstar Health v. Maryland Health Care

Comm’n, 391 Md. 427, 431 (2006) (using “allocation” and

“rationing” synonymously); Gallagher’s Steak House v. Bowles,

142 F.2d 530, 534 (2d Cir. 1944) (holding that presidential power

to “allocate” items during wartime included power to “ration”);

Michael D. Reagan, Health Care Rationing and Cost Containment

168 [100 Op. Att’y

Are Not Synonymous, 9 Policy Studies Review 219, 220-23 (Winter

1990) (concluding that rationing in the health care context means

the distribution of a scarce resource, such as a single dialysis

machine in a rural town, among individual claimants based on

principles of equity). Indeed, an informational chart from the bill

file confirms that the rationale for this provision was, among other

things, to “permit[] emergency allocation procedures to be

implemented.”3 H.B. 296, 2002 Leg., Reg. Sess., Comparison

Between Proposed Catastrophic Public Health Emergency

Legislation and Current Maryland Law. The Governor thus has

statutory authority to adopt allocation criteria.

It is less clear, however, whether the General Assembly

intended merely to authorize the use of allocation criteria that

would govern which patients receive ventilators in the first instance

or whether it also intended to authorize criteria, like New York’s,

for reassessing and withdrawing patients from ventilators to make

room for others. Although the language in § 14-3A-03(b)(2)(i)

seems to apply equally to both situations, it would be far more

controversial to remove a patient from a ventilator than to withhold

treatment in the first instance. See Phillip Levin & Charles Sprung,

Withdrawing and Withholding Life-Sustaining Therapies are not

the Same, 9 Critical Care 230 (2005). Moreover, the General

Assembly provided procedural protections for individuals subject

to isolation and quarantine orders issued by the Governor under the

Act, see PS § 14-3A-05(c)(1), and yet did not provide the same for

patients facing the withdrawal of potentially life-saving treatment.

If the Legislature had intended to authorize criteria providing for

the removal of ventilators, one might have expected it to enact

corresponding procedural protections.

Although these considerations give us pause, it is not clear

that there is any legal distinction between withholding and

withdrawing medical treatment. We concluded in a prior opinion

3

The Model Act, which served as the template for this provision of

the Maryland statute, also explicitly refers to the “allocation” of scarce

resources during an emergency. We recognize that the Model Act uses

the terms “rationing” and “allocation” separately in describing the ways

in which a public health authority might regulate access to medical

products, see Model Act, supra, at 24, which could imply that the terms

have different meanings. But it is more likely that the General Assembly

omitted “allocation” from the statute because the term “rationing”

already included both concepts, not because of any intent to exclude one

and include the other. A contrary reading would “obscure the substance”

of the law by putting an “overemphasis upon the label attached” to the

Governor’s power. Gallagher’s Steak House, 142 F.2d at 534.

Gen. 160] 169

that terminally ill or permanently comatose patients have a right to

refuse life-sustaining treatment both by withholding consent in the

first place and also by later revoking that consent. 73 Opinions of

the Attorney General 162, 171-78 (1988). We reasoned that the

“distinction” between withholding and withdrawing treatment “is

more psychologically compelling than logically sound” and that

“the line between active and passive conduct in the context of

medical decisions is far too nebulous to constitute a principled

basis for decisionmaking.” Id. at 171 (quoting In re Conroy, 98

N.J. 321, 370 (1985)). After all, “[w]hether necessary treatment is

withheld at the outset or withdrawn later on, the consequence—the

patient’s death—is the same.” Id. (quoting In re Conroy, 98 N.J.

at 370); see also American Medical Association Code of Medical

Ethics, Opinion 2.20 – Withholding or Withdrawing Life-

Sustaining Medical Treatment (1996) (“There is no ethical

distinction between withdrawing and withholding life-sustaining

treatment.”); but see Mareiniss et al., ICU Triage, supra, at 334

(noting that there is usually no difference between withdrawing and

withholding treatment when the decision is made by a patient, but

when the decision is made against the patient’s wishes there may

be a greater risk of liability if a patient is removed from treatment

than if treatment is merely withheld).

The Court of Appeals too has stated that patients have a right

to “refuse treatment and to withdraw consent to treatment once

begun,” without drawing any distinction between the two concepts.

See Mack v. Mack, 329 Md. 188, 210 (1993). But the Court has

also questioned in dicta whether the withholding and withdrawal of

treatment are legally the same. See In re Riddlemoser, 317 Md.

496, 504 n.5 (1989). Riddlemoser involved whether a circuit court

had the power under a statute permitting courts to “authorize”

medical treatment for disabled persons to withhold or withdraw

life-sustaining treatment from a permanently comatose patient. Id.

at 504. Although the Court dismissed the appeal as moot and did

not reach the merits, it observed in a footnote that “the power to

withhold treatment and the power to withdraw treatment are

separate and distinct.” Id. at 504 n.5.

In any event, neither the Court of Appeals opinion in

Riddlemoser nor our own prior opinion directly answers the

relevant question here, namely, whether the General Assembly

intended to authorize emergency allocation criteria that cover both

the withholding and withdrawal of ventilators. For that, we return

to the text of the statute, which does not draw any distinction

between the concepts; both withholding and withdrawing

170 [100 Op. Att’y

ventilators constitute “rationing.” See PS § 14-3A-03(b)(2)(i).

Moreover, the primary purpose of the Catastrophic Health

Emergencies Act is to help save lives, and granting the Governor

the authority to set allocation guidelines for the initial provision of

ventilators while prohibiting their withdrawal and reallocation

would not fully effectuate that purpose. Such a plan would bind

health care providers to a state of affairs where patients with

hopeful prognoses are dying while those unlikely to survive even

with ventilator treatment exhaust all of the available resources. See

CDC Ventilator Document Workgroup, supra, at 21. Thus,

although the Legislature could enact legislation clarifying the issue,

we think a court is more likely to conclude that the current statute

grants the Governor authority to set allocation criteria both for

access to, and withdrawal from, ventilators during a flu pandemic.

It is important to emphasize, though, that the Governor’s

power to ration supplies is not unlimited. The Governor’s authority

is triggered only when he has properly declared a catastrophic

health emergency, PS § 14-3A-03(a), and he may impose the

allocation criteria only as to something “needed to respond to the

medical consequences of the catastrophic health emergency.” PS

§ 14-3A-03(b)(2). And, as discussed further below, there are also

constitutional limits on his authority. But we conclude that, as a

matter of law, the General Assembly has granted the Governor the

authority to establish criteria governing both access to, and

reallocation of, ventilators.4

2. DHMH’s Power to Establish Treatment Protocols

Under Title 18 of the Health-General Article

We next consider whether DHMH has separate authority to

implement allocation criteria without an order from the Governor

under § 14-3A-03. To some extent, this is an academic question;

the Department is subject to the Governor’s control and the two

would presumably coordinate with each other on any emergency

response. But there is nonetheless an argument that the Department

has authority of its own. Among the Department’s emergency

powers is the power to “require health care facilities to develop and

implement contingency plans addressing . . . [t]reatment and

decontamination protocols” as well as “any other area that the

Secretary determines is necessary to assist in the early detection

4

In addition, if any State laws conflict with the allocation criteria,

the Governor has the power to “suspend the effect of any statute or rule

or regulation of an agency of the State or a political subdivision.” PS

§ 14-107(d)(1)(i).

Gen. 160] 171

and treatment of an individual exposed to a deadly agent.” Md.

Code Ann., Health-Gen. (“HG”) § 18-903(a)(1). DHMH is also

charged with “publishing protocols to assist health care

practitioners in developing plans to respond to a catastrophic health

emergency” and “[m]ay, if necessary, require health care

practitioners to implement” those protocols. HG § 18-903(b).

In our view, however, a court would more likely hold that the

Department lacks authority to establish binding allocation criteria

on its own. The relevant provisions of the Health-General Article

were enacted as part of the same legislation that set forth the

Governor’s powers in the event of a catastrophic health emergency,

see 2002 Md. Laws, ch. 1, and the General Assembly in that

legislation specifically reserved for the Governor the sensitive

power to ration scarce resources during a catastrophic health

emergency. See PS § 14-3A-03. We doubt a court would read into

the Department’s general power to publish emergency protocols

the more specific rationing power that the General Assembly

granted to the Governor. The Governor could certainly request that

the Department help develop the allocation criteria in advance and

order the Secretary to implement the criteria during a declared

emergency, but we do not believe the Department has the authority

to issue mandatory criteria on its own.5

B. Constitutional Limits on the Governor’s Authority to Set

Allocation Criteria

Although we conclude that the Governor has statutory

authority to set allocation criteria for ventilators during a pandemic,

he must exercise that authority within constitutional boundaries.

For example, the Equal Protection Clause would prohibit the use of

criteria that draw arbitrary lines among different groups of people

or discriminate against protected classes of individuals. See Necia

B. Hobbes, Note, Out of the Frying Pan Into the Fire: Heightened

Discrimination & Reduced Legal Safeguards When Pandemic

Strikes, 72 U. Pitt. L. Rev. 779 (2011).6 The Fourth Amendment

5

The Department likely could, however, issue non-binding

ventilator criteria as an exercise of its authority under HG § 18-903(b) to

publish “protocols.” It might also be able to make those criteria binding

for hospitals, so long as it does not intrude upon those powers that the

General Assembly has already conferred upon the Governor.

6

There are also federal statutes prohibiting certain types of

discrimination on the basis of age and disability. See, e.g., 42 U.S.C.

172 [100 Op. Att’y

restrictions on unreasonable searches and seizures might also apply

if the criteria require doctors to conduct invasive tests that they

otherwise would not perform in the course of treatment. See New

York Guidelines at 211.7

The constitutional limitation most relevant here is the

Fourteenth Amendment of the U.S. Constitution, which provides

that “[n]o state shall . . . deprive any person of life, liberty, or

property, without due process of law.”8 U.S. Const., amend. XIV,

§ 1. This constitutional safeguard includes both a procedural and a

substantive component. County of Sacramento v. Lewis, 523 U.S.

833, 845-46 (1998). Procedural due process ensures that the

government will not deprive individuals of life, liberty, or property

without affording them procedures that comport with notions of

“fundamental fairness,” while substantive due process defends

against the arbitrary “exercise of [government] power without any

§§ 12132, 12182 (Americans with Disabilities Act); 42 U.S.C. § 6102

(Age Discrimination Act of 1975). Although we have not considered

how these laws might apply in the context of a flu pandemic, State

officials involved in drafting any criteria should be aware of them.

7

The taking of a blood sample, urine sample, or buccal swab

qualifies as a search or seizure when carried out within the context of

law enforcement or public safety. See Maryland v. King, 133 S. Ct.

1958, 1969 (2013) (buccal swab); Schmerber v. California, 384 U.S.

757, 767-71 (1966) (blood); Skinner v. Railway Labor Executives’ Assn.,

489 U.S. 602, 616-17 (1989) (breathalyzer and urine sample). Although

we are not aware of any cases evaluating medical procedures under the

Fourth Amendment outside of that context, a court would likely evaluate

the reasonableness of the diagnostic tests at issue here under the more

flexible balancing test that applies to administrative searches and the

“community caretaking function.” See 100 Opinions of the Attorney

General 3, 22-27 (2015) (providing an overview of administrative

searches and the “special needs” exception to the warrant and probable

cause requirements); Wilson v. State, 409 Md. 415, 439 (2009)

(evaluating officer’s exercise of community caretaking function by

reasonableness standard). We have not considered the issue in detail,

but we suspect that the State could fashion an allocation regime that is

consistent with the Fourth Amendment.

8

The due process protections in the Maryland Constitution are

“usually read in pari materia with the federal analogue.” In re Ryan W.,

434 Md. 577, 608 (2013). For ease of analysis, we will therefore focus

on federal law, but it is possible that Maryland courts could construe the

Maryland Constitution more broadly than its federal counterpart. See,

e.g., Koshko v. Haining, 398 Md. 404, 444 n.22 (2007) (“We have not

hesitated, where deemed appropriate, to offer a different interpretation

of the Maryland provision.”).

Gen. 160] 173

reasonable justification,” regardless of how many procedural

protections have been afforded. Id. at 845-46. We will consider if

and how these components of due process constrain the Governor’s

power to issue allocation criteria for ventilators in a flu pandemic.

1. State Action

The Fourteenth Amendment, by its terms, only forbids

arbitrary action on the part of the State. The threshold inquiry for

all due process questions is thus whether there is “state action,” that

is, whether the procedural or substantive deprivation at issue is

fairly attributable to the government. See, e.g., Blum v. Yaretsky,

457 U.S. 991, 1002-03 (1982). “The purpose of this requirement

is to assure that constitutional standards are invoked only when it

can be said that the State is responsible for the specific conduct of

which the plaintiff complains.” Id. at 1004 (emphasis in original).

The state action component of the due process inquiry is not

present when a private actor is merely acting in accordance with a

regulatory scheme created by the government. See American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (holding that

plaintiffs could not bypass the state action requirement by

“characteriz[ing] their claim as a ‘facial’ or ‘direct’ challenge” on

government regulations). Instead, the Supreme Court has

emphasized that state action “requires both an alleged

constitutional deprivation caused by the exercise of some right or

privilege created by the State or by a rule of conduct imposed by

the State or by a person for whom the State is responsible, and that

the party charged with the deprivation must be a person who may

fairly be said to be a state actor.” Id. (emphasis in original; internal

quotation marks omitted).

There are some circumstances, however, under which a

private entity is properly characterized as a state actor. State action

exists when “there is a sufficiently close nexus between the State

and the challenged action of the regulated entity so that the action

of the latter may be fairly treated as that of the State itself.”

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974). As

is relevant here, “a State normally can be held responsible for a

private decision only when it has exercised coercive power or has

provided such significant encouragement, either overt or covert,

that the choice must in law be deemed to be that of the State.”

Blum, 457 U.S. at 1004; see also Sullivan, 526 U.S. at 52.

174 [100 Op. Att’y

It is our understanding that the final decision to withhold a

ventilator from a patient or to remove a patient from a ventilator

will typically be made by private doctors in private medical

facilities. The Due Process Clause will thus apply only to the

extent those private medical decisions can be attributed to the

Government. As we understand your question, however, the State

would be issuing mandatory criteria governing the allocation of the

available ventilators. If the State is requiring doctors to make

allocation decisions and the State-issued criteria governing those

decisions are binding, a court might well conclude that the State is

exercising sufficient “coercive power” to qualify as state action.

Blum, 457 U.S. at 1004. This is especially true given that the

Catastrophic Health Emergencies Act imposes criminal penalties

on persons who “knowingly and willfully fail to comply with an

order, requirement, or directive issued under” the Act. PS § 14-

3A-08(a).

The Supreme Court’s decision in Blum is instructive. In that

case, a class of Medicaid patients alleged that their nursing homes

improperly transferred them to a lower level of care without first

providing notice and an opportunity for a hearing. Blum, 457 U.S.

at 993-96. Although the nursing homes were private entities, the

plaintiffs claimed that the State effectively compelled the “transfer

of Medicaid patients” by requiring health care providers to fill out

a particular State-issued assessment form when making transfer

decisions. Id. at 1005. The Supreme Court held that there was no

state action because the State did “not require the nursing homes to

rely on the forms in making discharge or transfer decisions”; rather,

the ultimate decisions about whether to move the patients “turn[ed]

on medical judgments made by private parties according to

professional standards that are not established by the State.” Id. at

1008. In other words, “[t]he rule of decision” was “nothing more

than a medical judgment.” Id. at 1012 (White, J., concurring in the

judgment).

Blum thus holds that state action does not exist when the

government merely asks medical professionals to make decisions

based on their private medical judgment, but it suggests that the

result might be otherwise were the State to “affirmatively

command” doctors to take certain actions under detailed mandatory

criteria established by the State. See id. at 1005. Accordingly,

depending on the specificity of the criteria and the extent to which

they bind doctors in exercising their medical judgment, there might

be state action in this context. If the final criteria are non-binding,

it is less likely that the private physicians who choose to follow the

criteria would be considered state actors for purposes of the

Gen. 160] 175

Fourteenth Amendment.9 See New York Guidelines at 209. We

will assume that the Due Process Clause applies and consider

whether its substantive and procedural components place any limits

on the Governor’s authority.

2. Substantive Due Process

The substantive component of the Due Process Clause

protects individuals against “certain government actions regardless

of the fairness of the procedures used to implement them,” Daniels

v. Williams, 474 U.S. 327, 331 (1986), and “provides heightened

protection against government interference with certain

fundamental rights and liberty interests,” Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). It “forbids the government

to infringe certain ‘fundamental’ liberty interests at all, no matter

what process is provided, unless the infringement is narrowly

tailored to serve a compelling state interest.”10 Reno v. Flores, 507

U.S. 292, 302 (1993) (emphasis in original). In other words, if a

liberty interest is fundamental, a governmental restriction on that

9

A patient might still argue that the conferral of immunity on health

care providers encourages hospitals to follow voluntary guidelines and

hence triggers the state action doctrine. There is some basis in the case

law for questioning whether statutorily-conferred immunity is sufficient

“encouragement” to render private medical decisions “state action”

under the test laid out in Blum. See, e.g., Goss v. Memorial Hosp. Sys.,

789 F.2d 353, 356 (5th Cir. 1986) (conferral of statutory immunity on

private medical peer review committee insufficient to render

committee’s incompetency finding the result of “state action”); White v.

Scrivner Corp., 594 F.2d 140, 143 (5th Cir. 1979) (statute insulating

merchants from liability for detaining suspected shoplifters does not

make merchant’s holding of plaintiff “state action”).

10

A different test applies to so-called “executive” actions. Lewis,

523 U.S. at 846. While legislative acts that implicate fundamental rights

are subject to the normal strict scrutiny test, an executive act only

violates substantive due process if it “shocks the conscience.” Id. at 846-

47. However, the fact that the allocation criteria in question here would

be set through a regulation or executive order does not mean the action

would be executive in character. As one federal court has clarified,

“[l]egislative acts” generally include “laws and broad-ranging executive

regulations” that “apply to a large[] segment of—if not all of—society,”

whereas “[e]xecutive acts . . . characteristically apply to a limited number

of persons (and often to only one person),” and usually “arise from the

ministerial or administrative activities of members of the executive

branch.” McKinney v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994)

(emphasis added).

176 [100 Op. Att’y

interest must pass strict scrutiny. If not, the regulation will be

constitutional as long as it passes the rational basis test, i.e., has a

rational relation to any legitimate state interest.

The Constitution, however, does not specify the fundamental

rights that receive heightened protection under the Due Process

Clause, and the challenge for courts is to identify which rights will

qualify as fundamental. The Supreme Court described that

challenge in Glucksberg:

[W]e have always been reluctant to expand

the concept of substantive due process

because guideposts for responsible

decisionmaking in this unchartered area are

scarce and open-ended. By extending

constitutional protection to an asserted right

or liberty interest, we, to a great extent, place

the matter outside the arena of public debate

and legislative action. We must therefore

exercise the utmost care whenever we are

asked to break new ground in this field, lest

the liberty protected by the Due Process

Clause be subtly transformed into the policy

preferences of the Members of this Court.

521 U.S. at 720 (internal quotations marks and citations omitted).

Despite these difficulties, the Supreme Court in Glucksberg

established at least a general framework for identifying

fundamental rights. Under this framework, rights are fundamental

if “deeply rooted in [our] Nation’s history and tradition” and

“implicit in the concept of ordered liberty, such that neither liberty

nor justice would exist if they were sacrificed.” Id. at 721 (internal

quotation marks and citations omitted). The Glucksberg test also

requires a “careful description” of the right at issue before

considering whether that right is “deeply rooted.” Id. In theory,

this ensures that the Court conducts its inquiry at the correct level

of specificity, without defining the potential right too broadly or

too narrowly. “[T]he description of the right is of crucial

importance—too broad and a right becomes all-encompassing and

impossible to evaluate; too narrow and a right appears trivial.”

Abigail Alliance for Better Access to Developmental Drugs v. von

Eschenbach, 495 F.3d 695, 716 (D.C. Cir. 2007) (en banc) (Rogers,

J., dissenting).

Gen. 160] 177

The Supreme Court’s decision in Glucksberg provides an

example of how this test works in practice. The plaintiffs there

challenged the State of Washington’s statute prohibiting assisted

suicide, claiming that they had a fundamental right “to choose a

humane, dignified death.” Gluckbserg, 521 U.S. at 722. The

Court, however, explained that fundamental rights could not be

“deduced from abstract concepts of personal autonomy.” Id. at

725. The Court instead articulated the question as “whether the

‘liberty’ specially protected by the Due Process Clause includes a

right to commit suicide which itself includes a right to assistance

in doing so.” Id. at 723. After setting forth this “careful

description,” the Court observed that, “for over 700 years, the

Anglo-American common-law tradition has punished or otherwise

disapproved of both suicide and assisting suicide.” Id. at 711.

Accordingly, the Court ultimately concluded that there was no

fundamental right to commit suicide rooted in our Nation’s

traditions. Id. at 728.

In more recent years, however, the Supreme Court appears to

be moving away from the Glucksberg framework. The Court, in

holding that same-sex couples may not be denied the fundamental

right to marry, stated that the identification and protection of

fundamental rights “has not been reduced to any formula,” and

explicitly questioned the usefulness of tradition in identifying such

rights. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)

(internal quotation marks omitted); see also Lawrence v. Texas,

539 U.S. 558, 572 (2003). The Court instead explained that the

Framers “entrusted to future generations a charter protecting the

right of all persons to enjoy liberty as we learn its meaning.”

Obergefell, 135 S. Ct. at 2598. The Court also criticized

Gluckberg’s “careful description” requirement, emphasizing that

to define the liberty interest at issue in such a “circumscribed

manner . . . is inconsistent with the approach this Court has used in

discussing other fundamental rights, including marriage and

intimacy.” Id. at 2602. Chief Justice Roberts even suggested that

the Court’s opinion in Obergefell “effectively overrules

Glucksberg.” 135 S. Ct. at 2621 (Roberts, C.J., dissenting).

a. Defining the Fundamental Right

Given this uncertain legal background, it is difficult to predict

how a court would characterize the potential right at issue here.

The Supreme Court in Cruzan v. Director, Missouri Dep’t of

Health, 497 U.S. 261 (1990), “strongly suggested” that a person in

a persistent vegetative state has a fundamental liberty interest in

178 [100 Op. Att’y

“refus[ing] unwanted lifesaving medical treatment,” Glucksberg,

521 U.S. at 720 (citing Cruzan, 497 U.S. at 278-79), but did not

address or imply any fundamental right to receive particular

medical treatment. The D.C. Circuit’s decision in Abigail Alliance

comes closer to our issue because it involved an asserted right to

receive medical care. Plaintiffs in that case sought access to

potentially life-saving drugs that the U.S. Food and Drug

Administration had not yet approved for medical use. Abigail

Alliance, 495 F.3d at 701. While the dissent argued that the case

involved a right “to preserve one’s life,” id. at 716, the majority

characterized the issue as a “right to assume . . . enormous risks in

pursuit of potentially life-saving drugs,” and found that no such

right existed or was deeply rooted in our Nation’s traditions. Id. at

711 (internal quotations marks and citations omitted; emphasis in

original). This decision provides some helpful guidance, but the

court defined the right at issue with such focus on the particular

regulatory scheme in question that the rationale cannot easily be

imported into other contexts.

Although we cannot provide a definitive answer, it is at least

possible that a court would recognize a fundamental right here.

Courts have long recognized a “constitutionally protected liberty

interest in bodily integrity.” Williams v. Wilzack, 319 Md. 485,

494-95 (1990). In fact, the Supreme Court has stated that “[n]o

right is held more sacred, or is more carefully guarded by the

common law, than the right of every individual to the possession

and control of his own person . . . .” Union Pacific Ry. Co. v.

Botsford, 141 U.S. 250, 251 (1891); see also Cruzan, 497 U.S. at

269 (“Every human being of adult years and sound mind has a right

to determine what shall be done with his own body . . . .”) (internal

quotation marks omitted); In re Guardianship of L.W., 167 Wis. 2d

53, 67 (1992) (discussing a “common law right of self-

determination and informed consent”); Fosmire v. Nicoleau, 75

N.Y.2d 218, 221 (1990) (stating that “a competent adult has the

right to determine the course of his or her own medical treatment”);

Conroy, 98 N.J. at 346, 348 (recognizing the “right of a person to

control his own body” and “the common-law right to self-

determination”); Abigail R. Moncrieff, The Freedom of Health,

159 U. Pa. L. Rev. 2209, 2238-39 (2011) (arguing that a

fundamental right to “freedom of health” is emerging from

Supreme Court precdents). In short, we think it possible that courts

might recognize a fundamental right to make health care decisions

free from government interference, or a right not to be withdrawn

from potentially life-saving treatment without consent.

Gen. 160] 179

That said, these cases discussing bodily integrity involved

decisions to refuse treatment; they do not necessarily support a

right to demand treatment. Courts instead have consistently

“rejected arguments that the Constitution provides an affirmative

right of access to particular medical treatments.” Abigail Alliance,

495 F.3d at 710 (collecting cases). Moreover, in the context of a

flu pandemic and a shortage of ventilators, access to medical care

is a zero-sum proposition: One person’s right of access to medical

treatment comes at the expense of another’s. A court thus might

characterize the issue here as whether an individual has a right to a

particular medical treatment over someone else. This way of

posing the question answers itself; it cannot be that everyone has a

constitutional right to receive treatment over everyone else.

Nevertheless, taking all of these considerations into account, we

think it is possible, but by no means certain, that a court would

recognize a fundamental right in this context.11

b. Narrow Tailoring

Even assuming there is a fundamental right infringed by the

State’s allocation criteria, the Government may still restrict that

right if the restriction is “narrowly tailored to serve a compelling

state interest.” Flores, 507 U.S. at 302. The State undoubtedly has

a compelling interest in saving lives. See Cruzan, 497 U.S. at 280

(observing that there “can be no gainsaying” that Missouri had an

“interest in the protection and preservation of human life”).

Moreover, the State also might have a compelling interest in

providing for the fair and orderly allocation of scarce resources

during a flu pandemic. See, e.g., Husain v. Springer, 494 F.3d 108,

125 (2d Cir. 2007) (identifying “the maintenance of public order”

as a “compelling state interest”); Grider v. Abramson, 180 F.3d

739, 749 (6th Cir. 1999) (recognizing “compelling governmental

11

There is also an argument that allocation criteria could implicate

the constitutionally-protected interest in “life,” in that the withholding or

withdrawal of treatment might lead to death. However, the denial of

access to ventilator does not itself infringe that right because there is no

guarantee that an individual would survive if given access to a ventilator

or die if denied such access. As Attorney General Curran previously

observed, “if death were eventually to occur, it would be the result,

primarily, of the underlying disease.” 78 Opinions of the Attorney

General 109, 124 (1993) (quoting Conroy, 98 N.J. at 351). The

withdrawal of life-sustaining treatment essentially “‘allows the disease

to take its natural course,’” and thus the state does not cause the

deprivation. In re Guardianship of L.W., 167 Wis. 2d at 83 (quoting

Conroy, 98 N.J. at 351).

180 [100 Op. Att’y

interest in public safety and order”). The question is whether

allocation criteria are “narrowly tailored” to achieve these goals.

The test for narrow-tailoring is difficult to meet, but, as the

Court has emphasized in recent years, it is “not . . . fatal in fact.”

Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237 (1995)

(internal quotation marks and citation omitted); see also Grutter v.

Bollinger, 539 U.S. 306, 326 (2003) (quoting Adarand). In

general, a court will examine the restriction to gauge whether it is

actually “necessary” to “advance[] the state’s interest,” whether it

regulates more than necessary or significantly less than necessary

to serve that interest, and whether there is another way of advancing

the interest that involves a lesser infringement of the protected

right. Republican Party of Minnesota v. White, 416 F.3d 738, 751

(8th Cir. 2005). “Although absolute necessity might not be

required, the [Court] will require the government to show a close

relationship between the classification and promotion of a

compelling or overriding interest.” 3 Ronald D. Rotunda & John

E. Nowak, Treatise of Constitutional Law Substance and Procedure

§ 18.3(a)(iii) (2012).

Whether the State’s allocation criteria satisfy strict scrutiny

will of course depend on the content of the final executive order.

The more directly that the criteria serve the government’s stated

interests, the more likely the criteria will be upheld. At the very

least, this means that the order should ensure that hospitals

implement the allocation criteria only in the event of a major health

emergency, like a pandemic or biological attack, when the hospital

and the State have exhausted all of their other options and there is

thus no less restrictive alternative to rationing ventilator access.

We also expect that a court conducting a narrow tailoring

analysis would focus in particular on the criteria for withdrawing a

patient from a ventilator. Although we have previously expressed

doubts about whether there is any legal distinction between

withholding and withdrawing medical treatment, see 73 Opinions

of the Attorney General at 171, we have little doubt that the

removal of a patient from a ventilator will seem to many

individuals—and perhaps judges, see Riddlemoser, 317 Md. at 504

n.5—an intrusion that requires greater scrutiny. Therefore, the less

likely that someone with a significant chance of survival would be

removed from a ventilator without consent, the more likely that the

criteria will pass strict scrutiny. The policy is also more likely to

be upheld if, as under New York’s guidelines, patients are only

removed from a ventilator if their condition has not sufficiently

improved and other patients who are waiting have a significantly

Gen. 160] 181

better prognosis. See New York Guidelines at 68-69; see also

American Medical Association Code of Medical Ethics, Opinion

2.03 – Allocation of Limited Medical Resources (1993) (noting that

“only very substantial differences among patients are ethically

relevant” and “the greater the disparities, the more justified the use

of [allocation] criteria becomes”).

Ultimately, though, we doubt a court would rule that a State

is constitutionally powerless to take steps during a pandemic to

ensure the efficient allocation of scarce medical resources in an

effort to save lives. The State’s interest in preserving life would

weigh heavily against that result, see Cruzan, 497 U.S. at 280,

especially where one person’s right of access to medical treatment

comes at the expense of another’s. As the Supreme Court of New

Jersey has observed, “When the patient’s exercise of his free choice

could adversely and directly affect the health, safety, or security of

others, the patient’s right of self-determination must frequently

give way.” Conroy, 98 N.J. at 353; see also Jacobson v.

Massachusetts, 197 U.S. 11 (1905) (holding that state could

constitutionally require smallpox vaccinations). Furthermore,

leaving it to each hospital to develop its own criteria for rationing

access to ventilators might spell chaos, with families racing to find

emergency rooms with the most favorable criteria. See Meir Katz,

Bioterrorism and Public Law: The Ethics of Scarce Medical

Resource Allocation in Mass Casualty Situations, 21. Geo. J. Legal

Ethics 795, 797-99 (2008) (discussing possible public disorder

during a catastrophic health emergency). State-issued allocation

criteria, by contrast, will ensure consistency among medical

providers and prevent a panicked rush for first access to a limited

life-saving resource.

Finally, as the Supreme Court has warned, “extending

constitutional protection to an asserted right or liberty

interest . . . place[s] the matter outside the arena of public debate

and legislative action.” Glucksberg, 521 U.S. at 720. Determining

the fairest, most ethical way to allocate scarce resources during a

catastrophic health emergency seems to be the kind of question that

is best resolved through such public debate; indeed, the Maryland

pilot study has already taken that approach. See supra at 164-65.

We do not think a court would categorically prohibit the State from

adopting criteria for the allocation of ventilators during a flu

pandemic, even if those criteria provided that patients would be

removed from ventilators under certain circumstances.

182 [100 Op. Att’y

3. Procedural Due Process

The Due Process Clause also prohibits the government from

abridging any constitutionally-protected “liberty” or “property”

interests without affording sufficient procedural safeguards. See

Mathews v. Eldridge, 424 U.S. 319, 332 (1976). This procedural

component of due process is intended to protect persons from the

“mistaken or unjustified deprivation of life, liberty, or property.”

Carey v. Piphus, 435 U.S. 247, 259 (1978). Even if there is no

substantive due process right at stake here, a patient may still be

entitled to procedural protections. “Unlike substantive due process

rights, which are founded upon ‘deeply rooted notions of

fundamental personal interests derived from the Constitution,’ the

liberty rights protected by procedural due process are somewhat

broader . . . .”12 Rees v. Office of Children & Youth, 744 F. Supp.

2d 434, 456 (W.D. Pa. 2010), aff’d, 473 F. App’x 139 (3d Cir.

2012) (internal citations omitted). We suspect that a court would

engage in some sort of procedural due process analysis here,

particularly with respect to the withdrawal of ventilators, if only

because withdrawing a ventilator might lead to the patient’s death.

See Rotunda & Nowak, supra, at § 17.3(b) (noting that a

“procedural due process issue would arise if the government were

to authorize the removal of life support systems where the patient

has not made such a request”).

“The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” Mathews, 424 U.S. at 333 (quoting Armstrong v.

Manzo, 380 U.S. 545, 552 (1965)). Due process is a “flexible

concept that varies with the particular situation,” Zinermon v.

Burch, 494 U.S. 113, 127 (1990), and the adequacy of the

procedures depends on a balancing of three factors: (1) “the

private interest that will be affected by the official

action;” (2) the “risk of an erroneous deprivation of such

interest through the procedures used, and the

12

The Supreme Court is apparently divided on whether a liberty

interest derived from the Constitution must also be a “fundamental

right” for any procedural due process protections to attach. See Kerry

v. Din, 135 S. Ct. 2128, 2142-43 (2015) (Breyer, J., dissenting)

(contrasting, along with three other justices, liberty interests that

warrant procedural due process protections from fundamental rights

under substantive due process); id. at 2137 (opinion of Scalia, J.)

(criticizing, along with two other justices, Justice Breyer’s argument

that “there are two categories of implied rights protected by the

Due Process Clause: really fundamental rights, which cannot be

taken away at all absent a compelling state interest; and not-so-

fundamental rights, which can be taken away so long as procedural

due process is observed”).

Gen. 160] 183

probable value, if any, of additional or substitute procedural

safeguards;” and (3) “the Government’s interest, including the

function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.”

Mathews, 424 U.S. at 335.

Applying this balancing test here, the private interest and the

governmental interest are both strong. It is difficult to imagine a

more important private interest: the removal of a patient from a

ventilator (or the decision not to place the patient on a ventilator in

the first place) may well result in the patient’s death. At the same

time, the Government needs the hospital to make allocation

decisions quickly to achieve its similarly important interest in

saving lives. If the hospital must follow complicated, lengthy

procedural requirements before making allocation decisions, then

patients might die while waiting for a ventilator. Similarly, if the

hospital or the government has to devote staff to help implement

the procedural safeguards, those employees will not be available to

respond to the emergency in other ways. Finally, with respect to

the remaining factor, it is difficult to know the risk of erroneous

deprivation without first knowing what the criteria will be. There

will be relatively little risk of error if the criteria are clear,

objective, and easy-to-administer, but the risk will be much greater

if they are complicated or allow for considerable discretion.

The entities that have already formulated allocation criteria

seem to have arrived at a consensus about some minimum

procedural safeguards. See, e.g., CDC Ventilator Document

Workgroup, supra, at 21. First, the State should employ clear,

objective criteria that provide advance notice about the standards

that will be applied and should also ensure that there will be

transparency in the process for formulating and implementing the

standards. See id. Second, allocation decisions should be made by

a neutral decisionmaker, like an independent triage specialist,

instead of the patient’s attending physician, who may have a

conflict of interest. See New York Guidelines at 37-38; see also

Code of Medical Ethics, Opinion 2.03 – Allocation of Limited

Medical Resources (“The treating physician must remain a patient

advocate and therefore should not make allocation decisions.”).

Third, the hospital should give notice to patients when they are

denied a ventilator or before they are withdrawn from a ventilator

and explain the reasons for that decision, including how the

allocation criteria operate and how they were applied in the

particular patient’s case.

184 [100 Op. Att’y

The more difficult question is whether a hospital will have to

provide some form of appeal before a patient is withdrawn from a

ventilator. “In extraordinary or emergency situations, . . . due

process may only require a hearing after the government action is

taken.” Aminoil, Inc. v. Envtl. Prot. Agency, 599 F. Supp. 69, 74

(C.D. Cal. 1984) (emphasis added). The government interest in

responding quickly to the crisis exceeds usually the private interest

at stake, and the government therefore may typically provide a

post-deprivation hearing. See, e.g., Boddie v. Connecticut, 401

U.S. 371, 379 (1971) (explaining that “extraordinary situations”

may exist “where some valid governmental interest is at stake that

justifies postponing the hearing until after the event”). But it is not

clear that a post-deprivation hearing will suffice for patients being

removed from a ventilator. “[T]he fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in

a meaningful manner.” Mathews, 424 U.S. at 333 (internal

quotation marks omitted; emphasis added). A post-deprivation

hearing will not be very meaningful if the patient is likely to die

soon after the ventilator is withdrawn.

Perhaps for this reason, the United States Department of

Veterans Affairs (“VA”) has decided to offer a “real-time clinical

appeals process” for at least some ventilator allocation decisions in

its own medical facilities. Pandemic Influenza Ethics Initiative

Work Group, Veterans Health Administration, Meeting the

Challenge of Pandemic Influenza: Ethical Guidance for Leaders

and Healthcare Professionals in the Veterans Health

Administration, at 39 (2010), available at www.ethics.va.gov/

activities/pandemic_influenza_preparedness.asp (last visited Dec.

10, 2015). The VA’s guidance provides for “rapid review” of

certain types of claims that the triage officer misapplied the

applicable procedures, which suggests a form of pre-deprivation

review. Id. New York has similarly recommended “real-time

individual case appeals” for a limited category of “procedural” or

“technical” errors, such as “when a withdrawal decision was made

without considering all relevant clinical triage criteria,” noting that

the appeals might be necessary to comply with due process. New

York Guidelines at 234.

If a rapid review system is workable, a court would probably

require some form of pre-deprivation review along the lines

suggested by the VA and New York before a patient is removed

from a ventilator. Due process is a “flexible concept,” Zinermon,

494 U.S. at 127, and if the criteria are based on some sort of

numerical score, it would probably suffice to give patients an

Gen. 160] 185

opportunity to challenge the way that the score was calculated or

other similar procedural errors.

However, there is significant disagreement among experts

about the workability of such an approach. “An on-going appeals

process will require significant time and personnel, both of which

may be in short supply during an influenza pandemic.” New York

Guidelines at 233. It might also “create unreasonable delays in

implementing triage decisions,” thereby undermining the State’s

goal of saving lives. Id. Some commentators have instead

suggested a retrospective review of all triage decisions to “provide

oversight and accountability” for the process and to ensure that the

criteria are being followed. Id. at 233-34. Because the government

has a strong interest in ensuring that allocation decisions can be

made quickly enough so that patients who are likely to benefit from

treatment will not die waiting for a ventilator, a court would

consider those concerns. Thus, if the experts working on draft

criteria in Maryland determine that a pre-deprivation appeals

process would be unworkable, it is at least possible that the State

might satisfy due process even without offering a pre-deprivation

appeal.

C. Health Care Workers’ Immunity from Liability

Your last question is whether a hospital or clinician would

risk liability if, under State-adopted criteria for the allocation of

ventilators, the hospital removed a patient from a ventilator to make

the device available to another patient. The Maryland Catastrophic

Health Emergencies Act specifically addresses this issue: “A

health care provider is immune from civil or criminal liability if the

health care provider acts in good faith and under a catastrophic

health emergency proclamation.” PS § 14-3A-06. “Health care

provider” means “(1) a health care facility as defined in § 19-

114(d)(1) of the Health-General Article; (2) a health care

practitioner as defined in § 19-114(e) of the Health-General

Article; and (3) an individual licensed or certified as an emergency

medical services provider under § 13-516 of the Education

Article.” PS § 14-3A-01(e)(1)-(3).

The purpose of this immunity provision is to ensure that

clinicians can comply with the Governor’s orders and act to save

lives during a public health emergency without fear of liability.

“Evidence shows that some clinicians will not participate fully, or

at all, if they fear liability for their actions that result in

unintentional harm to patients or even from foreseen harms that

186 [100 Op. Att’y

result from following appropriately vetted clinical guidelines for

[mass critical care].” Brooke Courtney et al., Legal Preparedness:

Care of the Critically Ill and Injured During Pandemics and

Disasters: CHEST Consensus Statement, 146:4 Supp. CHEST J.

e134S, at e139S (2014). For this reason, the predecessor of § 14-

3A-06 was added after the Association of Maryland Hospitals &

Health Systems (“MHA”) objected to the failure of the original bill

to include an immunity provision. MHA argued that “providers

need liability protection for carrying out the Governor’s orders so

there is no delay or questions surrounding compliance.” Hearing

on S.B. 234 Before the Educ., Health, & Envtl. Affairs Comm., 2002

Leg., Reg. Sess. (Feb. 6, 2002) (written testimony of MHA).

Taken together, the plain language of § 14-3A-06 and its

broad legislative purpose indicate that health care providers would

be immune from civil or criminal liability if, in keeping with State-

mandated allocation criteria, they removed a patient from a

ventilator. A provider is immune if acting “in good faith and under

a catastrophic health emergency proclamation.” PS § 14-3A-06.

Under Maryland law, “good faith” typically means “‘an intangible

and abstract quality that encompasses, among other things, an

honest belief, the absence of malice and the absence of design to

defraud or to seek an unconscionable advantage.’” Rite Aid Corp.

v. Hagley, 374 Md. 665, 680-81 (2003) (quoting Catterton v.

Coale, 84 Md. App. 337 (1990)); see also Black’s Law Dictionary

808 (10th ed. 2004) (defining “good faith” as, among other things,

“[a] state of mind consisting in (1) honesty in belief or purpose

[and] (2) faithfulness to one’s duty or obligation”). A health care

provider who acts in accordance with State-required allocation

criteria will thus almost by definition be acting in good faith,

regardless of the negative consequences arising from the

withdrawal of a patient’s ventilator.13

13

Hospital physicians and staff would likely also be entitled to

immunity if they act in accordance with State-established criteria that are

voluntary. For immunity to attach under the Public Safety Article, the

health care provider’s actions must be taken “in good faith” and “under

a catastrophic health emergency proclamation,” PS § 14-3A-06, neither

of which depends on the criteria being mandatory. As for actions taken

pursuant to DHMH’s authority to publish protocols for catastrophic

health emergencies under HG § 18-903, a health care provider acting “in

good faith” and “in accordance with a catastrophic health emergency

disease surveillance and response program” is immune from civil or

criminal liability “unless the health care provider acts with willful

misconduct.” HG § 18-907(f). This statute too would likely provide

immunity for actions taken in accordance with non-binding guidelines.

Gen. 160] 187

A number of commentators agree with this reading of the

statute. Scholars have described Maryland as having

“exceptionally good protections that are directly applicable to crisis

standards of care and the allocation of ventilators.” Mareiniss et

al., ICU Triage, supra, at 332; see also Valerie Gutmann Koch,

Unique Proposals for Limiting Legal Liability and Encouraging

Adherence to Ventilator Allocation Guidelines in an Influenza

Pandemic, 14 DePaul J. Health Care L. 467, 488 n.98 (2013) (citing

Maryland as an example of a State with the “most broad immunity-

conferring legislation currently in effect”). As one set of experts

explained, “it is likely that [Maryland] providers would be

protected if they used an ICU allocation protocol issued or

endorsed by the state during such a declared emergency to make

triage decisions as this could be considered acting in good faith.”

Mareiniss et al., ICU Triage, supra, at 335.

For the sake of completeness, we note one complicating

factor. The statute as originally enacted in 2002 stated that “[a]

health care provider acting in good faith and in accordance with a

catastrophic health emergency proclamation is immune from civil

or criminal liability related to those actions, unless the health care

provider acts with willful misconduct.” 2002 Md. Laws, ch. 1

(emphasis added, codified at Ann. Code Md., art. 41 § 2-202(g)

(2003 Repl. Vol. 2)); see also HG § 18-907(d) (enacted as part of

the same legislation and providing identical immunity for actions

taken in accordance with DHMH’s “catastrophic health emergency

disease surveillance and response program”). During the 2004

creation of the Public Safety Article, the General Assembly

amended the provision by, among other things, removing the

phrase referring to “willful misconduct.” 2004 Md. Laws, ch. 26

at 198 (codified at PS § 14-3A-06). The accompanying Revisor’s

Note explains that the new language was “derived without

substantive change,” but does not mention this particular

amendment. Id., § 2 (Revisor’s Note to PS § 14-3A-06).

When statutory language is deleted during code revision

without comment, we ordinarily regard the amendment as non-

substantive and interpret the new language in a manner that is

consistent with its pre-amendment meaning. See, e.g., Allen v.

State, 402 Md. 59, 71-72 (2007). But some public health officials

have suggested that knowingly withdrawing or withholding life

support begins to tread the line of “willful misconduct.” Mareiniss,

Levy & Regan, ICU Triage, supra, at 333. We doubt that is the

case, see New York Guidelines at 225 n.118 (concluding that

removing a patient from a ventilator pursuant to State-issued

188 [100 Op. Att’y

guidelines would not be misconduct of any kind), but if so, the

deletion of the language would seem to be the type of change that

would have merited comment. After all, the Revisor’s Note does

comment on another, seemingly much less substantive change.

See, e.g., 2004 Md. Laws, ch. 26 § 2 (Revisor’s Note to PS § 14-

3A-06) (noting that the phrase “related to those actions,” which

appeared in the prior version of the statute, was “deleted as implicit

in the structure of the revision”).

Nonetheless, we think that the most logical way to interpret

the amendment, given the revision committee’s failure to

comment, is that the General Assembly viewed the “willful

misconduct” exception as surplusage in light of the existing “good

faith” requirement. In other words, the General Assembly

apparently did not think it was possible for a health care provider

to act with willful misconduct if he or she was acting “in good faith

and under a catastrophic health emergency proclamation.” PS

§ 14-3A-06. In fact, in a different section of the Public Safety

Article, the Legislature specifically explained that, for purposes of

liability of officers or emergency responders under the Maryland

Emergency Management Assistance Compact, “[g]ood faith”

already requires an individual to act without “willful misconduct.”

PS § 14-803(4)(d)(3) (“Good faith in this [article 4 of the Compact]

shall not include willful misconduct, gross negligence, or

recklessness.”). “When a statute’s language is clear and

unambiguous,” as it is here, “we need look no further for some

hidden legislative intent.” Abramson v. Montgomery County, 328

Md. 721, 736 (1992). Based on this plain language, it is our view

that health care providers are immune from civil or criminal

liability when withdrawing and reallocating ventilators in

accordance with State-adopted allocation criteria during a

catastrophic health emergency.

III

Conclusion

In our opinion, the Governor has the authority to issue

mandatory criteria governing the allocation of ventilators during a

flu pandemic if he has declared a catastrophic health emergency.

A reviewing court would likely scrutinize those criteria to ensure

that they comport with due process but likely would not strike

down the criteria if the State has crafted them with care. We further

conclude that a medical provider who follows the criteria in good

faith is immune from liability.

Gen. 160] 189

Brian E. Frosh

Attorney General of Maryland

Patrick B. Hughes

Assistant Attorney General

Adam D. Snyder

Chief Counsel, Opinions & Advice

* Andrew Gear, a former intern in this office, assisted in the

preparation of this opinion.