Long-term ventilator users lose bid to revive suit over N.Y. emergency guidelines

A ventilator is seen at the intensive care unit (ICU) at the university hospital in Aachen, Germany, December 21, 2020. REUTERS/Leon Kuegeler
  • Disability rights groups fail to revive proposed class action
  • N.Y. guidelines could lead to reallocation of personal equipment, say the groups

(Reuters) - Long-term ventilator users and disability rights groups have lost a bid to revive a proposed class action over New York guidelines that they say could lead to their ventilators being taken away in a health emergency.

A unanimous panel of the 2nd U.S. Circuit Court of Appeals found Wednesday that the plaintiffs did not have standing to sue because they did not face an imminent threat from the guidelines.

A lawyer for the plaintiffs and a spokesperson for the New York Attorney General's Office did not immediately respond to requests for comment.

The lawsuit was filed in October 2020 in Central Islip, New York federal court by three individuals and disability advocacy groups Not Dead Yet, NMD United and Disability Rights New York.

The case focused on 2015 state-issued guidance for hospitals on the use of ventilators, devices that help patients breathe when they are unable to do so on their own. The guidance was originally developed for use in a potential influenza pandemic, but attracted renewed attention because of COVID-19.

The guidance, which is voluntary, called for hospitals to establish triage committees to allocate ventilators to patients most likely to survive. The plaintiffs said that the guidance could lead to their personal ventilators being taken from them if they sought care in a hospital.

They said that the guidance violated the Americans with Disabilities Act, and sought a court order directing the state to issue new guidance that specifically prohibited hospitals from taking long-term ventilator users' personal ventilators during an emergency.

U.S. District Judge Gary Brown dismissed the case in August 2021, finding that the plaintiffs had not shown an imminent threat of harm. Circuit Judges Dennis Jacobs, Richard Wesley and Raymond Lohier, in an unsigned order, agreed.

"We are of course sensitive to the concern that people who rely on ventilators for their survival should not be discriminated against by any emergency preparedness plan," the 2nd Circuit panel said. "But Plaintiffs-Appellants have alleged only 'possible future injury' rather than any 'certainly impending' injury."

The case is Not Dead Yet v. Hochul, 2nd U.S. Circuit Court of Appeals, No. 21-2212.

For plaintiffs: Jessica Richwalder of Disability Rights New York

For the state: Assistant Solicitor General Cleland Welton

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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at [email protected]