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A group of New York state residents living with disabilities who rely on ventilators are suing the governor and the state health commissioner in an effort to force the officials to change state guidelines regarding the distribution of ventilators during a health crisis, including the current COVID-19 pandemic.
In the class action lawsuit filed in a Brooklyn court Oct. 7, lawyers representing the residents allege that the state’s current Ventilator Allocation Guidelines — which were published in 2015 — allow hospitals to reallocate personal ventilators used by individuals such as the plaintiffs if they were to seek acute medical care in a hospital during a health crisis or triage situation.
Plaintiffs are Michelle Brose, Mike Volkman, Jessica Tambor, Peri Finkelstein and the disability rights advocacy organizations Not Dead Yet, NMD United, and Disability Rights New York. They range in age from 20 to 55 and live with a variety of disabilities.
Defendants are New York Gov. Andrew Cuomo and New York State Commissioner of the Department of Health Howard A. Zucker.
The plaintiffs, some of whom rely on ventilators to breathe for 24 hours a day, say that under the current guidelines, they would not seek potentially lifesaving medical care at a hospital if they contract COVID-19 or have another health issue because they fear they could be “forcibly extubated” in order to redistribute their ventilators to other patients deemed “more likely to survive,” according to the complaint.
Lawyers argue that the state guidelines violate the Americans with Disabilities Act and should be amended “to ensure that chronic ventilator users will not have their personal ventilators reallocated to other individuals, especially without another ventilator readily available for their use.”
Due to the lack of a nondiscriminatory emergency preparedness plan, the plaintiffs and some 40 total state residents in similar situations would “face the impossible choice between foregoing needed medical care or going to the hospital where their personal ventilators could be taken away, resulting in an inability or reduced ability to breathe and leading to respiratory failure and death,” the class action lawsuit contends.
Ventilator shortages have been a serious problem in New York and other states since the coronavirus outbreak began in the U.S. this winter. During a two-week period in April, at the peak of the outbreak in New York, more than 700 residents died per day from COVID-19, according to the complaint.
As ventilators became key to treating the virus, which can cause severe respiratory distress, the state took steps to address anticipated shortages such as borrowing ventilators from other states and from nursing and rehabilitation facilities, according to the complaint.
As part of the state’s emergency response at the time, Cuomo even signed an executive order allowing the state to seize ventilators and protective gear from private hospitals and companies that weren’t using them, The Orange County Register reported. He added that he will eventually return the equipment or compensate the owners.
“If they want to sue me for borrowing their excess ventilators to save lives, let them sue me,” Cuomo said, according to the newspaper.
The class action lawsuit contends that under the current state guidelines, a patient’s physician does not determine whether the patient receives or continues to receive a ventilator. Instead, a triage officer or triage committee makes that decision.
In addition, the guidelines lay out a multi-step process with a Sequential Organ Failure Assessment (SOFA) score to determine which patients will have access to a ventilator during a time of triage. A SOFA score is a number used to track a person’s status during an intensive care stay that adds points based on clinical measures of the function of six key organs and systems: lungs, liver, brain, kidneys, blood clotting, and blood pressure, according to the complaint.
This could put chronic ventilator users such as the plaintiffs in a dire situation since they automatically have reduced SOFA scores; their disabilities significantly impair the functioning of key organ systems such as the lungs, according to the class action lawsuit.
In addition to seeking injunctive relief directing the state health department to issue new Ventilator Allocation Guidelines that “explicitly prohibit the reallocation of personal ventilators from chronic ventilator users to other individuals,” lawyers are seeking a declaratory judgment establishing that discrimination has occurred. They are also seeking an award of reasonable attorneys’ fees and costs.
Not Dead Yet, NMD United and other individually named plaintiffs are represented by Britney Wilson, Greg Bass, Claudia Wilner of the National Center for Law and Economic Justice.
Disability Rights New York and other individually named plaintiffs are represented by Jessica Barlow and Marc Fliedner of Disability Rights New York.
The New York State Ventilator Discrimination Class Action Lawsuit is Not Dead Yet, et al. v. Andrew Cuomo, et al., Case No. 1:20-cv-04819, in the U.S. District Court for the Eastern District of New York.
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