Along those lines was a question to President Trump yesterday on whether he could guarantee that everyone who needed a ventilator would have one. The unasked, but an obvious related question is that if the requests of one place, experiencing peak demand and anticipating that the peak has not yet been reached, are met so the requesting state can put ventilators and other emergency medical supplies and equipment into storage for use should the peak continue to climb, but, for that reason, a state which starts to see a growth in infections and hospitalizations so that it is heading toward a peak which will overwhelm its resources and so requests emergency medical supplies and equipment but those are now available because of satisfying the earlier request, can there be liability because such supplies and equipment are not available?

Ventilators is a good example to use. Previously, the average annual demand for them in the US was around 39,000. A few years ago, New York had to opportunity to purchase around 16,000 (or around 40% of the average annual demand), but decided not to, and used the money for other purposes. At the time, that looked to be a prudent decision. With hind sight, not so much. Production is being rapidly ramped up, and alternatives are being proposed. It is expected that the production this year will exceed 100,000. Plus, stores of old ventilators are being refurbished. CPAP machines are being repurposed for people needing oxygen but not intubation. And, MIT has received FDA approval of its design for a manually operated ventilator (which could be used in EMS units and to replace ventilators used in teaching, freeing those machines, and, as an emergency standby in event of power failure). Under these types of facts, establishing a standard of care will be a complex exercise.