I am an emergency medicine doctor in Philadelphia and currently practice on the front line of this pandemic. One of the difficult realities of the COVID-19 crisis is our limited resources. As many have discussed, if we have too many critically ill patients, we may run out of ventilators. As a result, we need to plan for this eventuality, and to determine how we can save the most lives possible with the resources we have. This issue has previously been considered by the Task Force for Mass Critical Care (TFMCC), a group of ICU experts and ethicists. If we run out of ventilators, we will have to give the machines to those patients most likely to live.

COVID-19 is believed to have a 2.3% mortality rate. The great influenza pandemic of 1918 had a similar mortality rate and killed over 100 million worldwide. Prior models have shown that if patient volumes reach 1918 influenza pandemic levels, we will not have enough ventilators. If we run out of ventilators, we will need to allocate them based on prognosis. In other words, we will give ventilators to patients most likely to live, and other patients may have ventilators removed and reallocated.

Pennsylvania is currently scrambling to draft guidelines for ventilator allocation if such a surge event occurs. Other states (e.g., Maryland, New York, Michigan, Louisiana) have had such guidelines in place for several years. I helped write Maryland’s guidelines in 2017. In creating these guidelines, it is vital that the state gives clear guidance and legal protection for these decisions. That is, doctors need legal protection if we are to remove ventilators from patients against their will and their family’s will. Without protection from the state, doctors could be sued or arrested, possibly even charged with murder or manslaughter. Let me be clear — we do not want to make these decisions. However, the situation may demand it. This is a unique time in history that requires extraordinary measures to save the most lives possible.

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On March 20, the state of Pennsylvania created draft guidance for ventilator allocation with clear exclusionary criteria (e.g., severe neurologic event with minimal recovery, persistent coma, incurable metastatic cancer) and with guidance about how to prioritize other patients. Many of the strict exclusions were similar to other states’ and the TFMCC guidelines and denoted very poor likelihood of survival. All patients with excluded disorders would be barred from receiving a ventilator but would receive palliative care. On March 22, the state revised the initial criteria to remove all strict exclusions, creating a different priority system that was much less defined.

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The current guidelines suggest prioritizing all critically ill patients based on a point system determined by the patient’s comorbid conditions, plus their Sequential Organ Failure Assessment (SOFA) scores (a scoring system that predicts prognosis). Based on the resulting score, the patients would be categorized as high priority, intermediate priority, or low priority. The current guidelines also suggest removing ventilators from patients with poor prognosis but give limited guidance about this. The guidelines simply state that “patients who show substantial clinical deterioration as evidence by worsening SOFA or overall clinical judgment, should not receive ongoing critical care/ventilation.” However, worsening SOFA is not defined. Other states specifically define what SOFA scores portend high mortality and require reallocation.

Using the initial guidelines with clear exclusions, nobody could accuse a doctor of bias or misallocation. The exclusions would be the same for everyone. The current draft, specifically the reallocation guidelines, removes clarity and creates confusion. It may create inconsistent application of the guidelines and provide less protection for triage doctors. Although other states, such as Maryland and Virginia, have legal protections preventing criminal or civil liability for triage decisions in a disaster, Pennsylvania has no such immunity. So, it is even more important that doctors have clear and consistent guidance for removing ventilators and reallocating them.

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Believe me, no doctor wants to be in the position of removing or withholding treatment. However, we may not have all the resources we need to battle this pandemic and might need to make difficult choices. The very least the state can do in return is give us clear guidance and legal protection for the decisions that we must make.

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Darren P. Mareiniss has published multiple articles on pandemic response and helped write the Maryland ventilator allocation guidelines. He is currently practicing emergency medicine at Einstein Medical Center and is clinical faculty.