Ruthless Utilitarianism? COVID-19 State Triage Protocols May Subject Patients to Racial Discrimination and Providers to Legal Liability

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 \u27fairness 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.\u27 The actual utility of this utilitarian ethics approach is questionable, however, leaving many questions about what is \u27fair unanswered. Saving as many people as possible during a health care crisis is a laudable goal but not at the expense of ignoring patients\u27s 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