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Not Dead Yet v. Cuomo

Challenge to Ventilator Guidelines Fail to Allege 'Certainly Impending' Risk of Injury

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MEMORANDUM DECISION & ORDER In this creative, if peculiar, case, several plaintiffs who depend on ventilators1 based upon various medical conditions seek to challenge voluntary guidelines for ventilator allocation in times of public health crisis published by a state health care task force in 2015. Of particular concern to plaintiffs is a disturbing provision that recommends that, under certain circumstances, “hospitals take chronic ventilator users’ personal ventilators upon their arrival into a hospital and place them into the general ventilator allocation pool” for reassignment to an individual with a higher likelihood of survival. Docket Entry (“DE”) 1 45. Recognizing the unpalatability of this recommendation, the challenged Ventilator Allocution Guidelines (“Guidelines”) note that this recommendation “may place ventilator dependent individuals in a difficult position of choosing between life-sustaining ventilation and urgent medical care.” Id. 46 (quoting State Department of Health, Ventilator Allocation Guidelines at 41). This troubling concept, which forms the core of this action, is mitigated by several factors specifically set forth in the allegations. The complaint expressly acknowledges that the Guidelines are “voluntary” and “non-binding.” Id.

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