But the idea makes some uncomfortable. A Maryland panel rejected the priority access, arguing those sick enough to need the life-sustaining machines would be unlikely to return to their jobs anytime soon and that defining who is and who is not a health-care worker in a crisis is too morally fraught.
While President Trump and members of his coronavirus task force dismiss talk of shortages that would lead to rationing care or equipment, state officials and doctors in U.S. hot spots warn it is inevitable in some places — and that it is coming soon. If — or when — that point is reached, many hospitals would activate grim triage plans that would rank patients based on who is most likely to benefit from the intensive care.
“There are a lot of competing visions of good,” said Charles Camosy, an associate professor of theological and social ethics at Fordham University. “The number and the gravity of judgments we have to make are astronomical.”
Pregnant women would get extra priority “points” in most if not all plans, U.S. hospital officials and ethicists say. This is not controversial. There also has been some discussion about whether high-ranking politicians, police and other leaders should be considered critical workers at a time when the country is facing an unprecedented threat.
The elderly, people with terminal cancer and those with chronic conditions, on the other hand, fare poorly in many plans, as do people with disabilities.
U.S. hospital officials, bioethicists and doctors involved in the closed-door discussions for drafting plans at their institutions say many critical details are still being debated even as the number of people on ventilators climbs higher each day.
Catholic groups have called on hospitals to treat pregnant women as two lives instead of one. AARP, formerly the American Association of Retired Persons, has decried age cutoffs for ventilator access in some plans. Last month, the Arc, a disability rights group, filed multiple complaints with the Department of Health and Human Services objecting to plans that disadvantage those with “severe or profound mental retardation” or dementia.
Some bioethicists have called for a national plan for rationing that would resolve disagreements and prevent “hospital shopping” by patients seeking care in a place that might favor their survival. But others believe a single standard is an impossible ask, given the nation’s deep ideological and religious divisions on life-or-death issues.
Bioethicist Brendan Parent, who worked for a New York state task force that developed a highly regarded framework for rationing, sees hospitals and states following two paths.
One group takes a utilitarian view of doing “the greatest good for the greatest number,” giving preference to those with the best chance of surviving the longest. Others are more focused on ensuring social justice and ensuring vulnerable groups have an equal chance.
Parent said there may be acrimony over various plans but that the alternative of treating everyone exactly the same — for instance, by using a lottery system — is not compatible with saving the most lives. Calling the plans “blunt instruments,” he said they cannot imagine every scenario that might arise so judgments will ultimately be left to individual doctors and nurses.
“Their use and utility will butt up against some very real, very difficult human problems with regard to how clinicians who are in the trenches are making real-time decisions,” he said.
Despite pleas from New York Gov. Andrew M. Cuomo for more ventilators, and help from billionaire Elon Musk, Ford and GM, there still may not be enough to go around — with the Johns Hopkins Center for Health Security projecting that as many as 2.9 million people could need ventilators during the course of the pandemic in a severe scenario.
Doctors and nurses also warn of possible shortages of other scarce resources as time goes by, such as some medications and dialysis machines to treat kidney failure.
Two rationing plans reviewed by The Washington Post, a final document from UCLA Health and a draft from Inova Health System, show how point systems can work to prioritize some patients and how small changes can make a big difference in who lives and who dies.
At Ronald Reagan UCLA Medical Center in Los Angeles, patients with a life expectancy of one year or less — such as some with advanced cancer, or severe heart failure combined with other conditions — would be assigned a lower priority than those with a longer life expectancy, according to the documents.
Robert Cherry, chief medical and quality officer for UCLA Health, said that while the plan doesn’t list a specific age as a benchmark, age is “an indirect marker for chronic illness. The older you get, the more you are likely to have heart disease and other things that impact your survival.”
UCLA’s plan goes to great lengths to avoid possible discrimination, stating that medical teams may not consider a long list of criteria for ventilator allocation including gender, disability, race, immigration status, personal relationship with hospital staff or “VIP status” — an important reminder given the medical center’s proximity to Hollywood. Cherry said it would be irresponsible to not have a framework in place for making difficult decisions.
In UCLA’s plan, front-line health-care workers and administrators may be given priority access to lifesaving treatment, when their return to work means more people are likely to survive the crisis. If all the allocation criteria are applied and there’s still a shortage of medical resources, then care should be allocated on the basis of a lottery, the document says. Patients who do not receive required care would be categorized as “Do Not Resuscitate,” with palliative care provided, according to the documents.
In Virginia, Inova Health’s draft plan follows similar criteria, except those with chronic conditions face a more severe penalty in the rankings — which makes it less likely that they would get a ventilator even over someone who is sicker from covid-19, according to the plan. Steve Motew, chief clinical officer for Inova, said discussions are ongoing but that the hospital system wanted to use numerous components to try to capture the likelihood of success of intubation.
“With all candor, these types of question are something none of us want to or have imagined having to think about,” he said.
UCLA, as an extra precaution against bias, calls for decisions to be made by a special triage officer or team, rather than the group that cares for a patient, with demographic information “blinded” when it is passed on to the decision-makers.
Inova takes a different approach by asking the doctor treating a patient to make the decision, with others available for consultation. Motew said that is not only practical for expediency’s sake, but also because bedside physicians have personal relationships with patients and can best advocate for them.
“I believe I’d rather have that person who has that compassion holding my hand and providing that comfort to make the decision,” he said.
Protecting the elderly and disabled
One of the most striking differences among plans is how they address the elderly and those with disabilities. Some have strict age cutoffs, or explicit criteria that disadvantage those with certain conditions. Tennessee’s guidelines, for example, exclude people with amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and end-stage multiple sclerosis, among other conditions. Officials there declined to comment.
Guidelines distributed by Washington state in March recommend that patients with “loss of reserves in energy, physical ability, cognition and general health” be considered for transfer to palliative care — which disability advocacy groups have said amounts to leaving people with disabilities to die.
Kristen Maki, a state spokeswoman, said officials share those concerns: “We are actively updating the guidance language, including applying an equity lens, to ensure the guidance is unequivocally clear in its original intent of nondiscrimination."
Federal nondiscrimination statutes did not exist the last time the world faced a pandemic of this magnitude, in 1918, so it’s unclear how they would be applied to medical triage in an emergency situation, legal experts say. But AARP and disability rights groups say they believe the policies are illegal.
“This virus doesn’t discriminate, and neither should those entrusted with deciding who gets access to health care to treat it,” said Nancy A. LeaMond, AARP executive vice president.
Shira Wakschlag, director of legal advocacy for the Arc, has filed complaints with the HHS Office for Civil Rights against four states that she says have discriminatory provisions in their rationing plans. HHS put out guidance on March 28 stating that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age.”
“We want to make sure doctors are not making decisions on stereotypes and biases about people’s lives and disabilities,” Wakschlag said.
But even without these explicit exclusion criteria, elderly people and those with disabilities remain at a disadvantage. Some plans use age as a “tiebreaker” if there are two patients with similar conditions — with preference going to the younger person.
This isn’t typically done by chronological age, but by life stages — young adulthood (40 years and younger), middle adulthood (41 to 60 years), late adulthood (61 to 74 years) and those ages 75 and up — with priority going to those who have had the least chance to live through these periods.
Some Catholic hospitals, however, draw only one distinction — between an adult and a child, so that a 70-year-old in need of a ventilator would be considered equal to a 20-year-old based on the principle of human dignity that all people have the same claim to health-care resources.
Using life expectancy or remaining life years can also be problematic for those with disabilities, civil rights groups say. The typical life expectancy for a person with Down syndrome, for example, is 60 years, as compared to about 78 years for someone without the condition.
“The key thing as we are in the midst of discussion about allocation of resources is that we do not forget the most vulnerable in the society,” said Brian Kane, senior director of ethics for the Catholic Health Association.
Only a limited number of patients would qualify for bonuses beyond their medical condition. Pregnant women are one such group, and in some plans, they would get one extra “point” in the scoring systems used to rank patients for access. But some stakeholders, especially religious groups that believe life begins at conception, have argued they should jump closer to the front of the queue.
“There are two human lives at stake, and it’s important to remember many states, including California, recognize that killing a pregnant woman is a double homicide,” said Paul Jonna, special counsel for the Thomas More Society and the Freedom of Conscience Defense Fund.
In late March, health-care professionals published a provocative article in two of medicine’s most prestigious journals arguing for favoring health-care professionals.
Ezekiel J. Emanuel, chair of the Department of Medical Ethics and Health Policy at the University of Pennsylvania, and his colleagues argued that ventilators should go first to front-line health-care workers who care for “ill patients and who keep critical infrastructure operating.”
“These workers should be given priority not because they are somehow more worthy, but because of their instrumental value,” they wrote in the New England Journal of Medicine.
Douglas White, a University of Pittsburgh bioethicist and critical-care doctor whose framework was used by Pennsylvania, expressed similar sentiments in JAMA the following week. In his model — co-written with Scott Halpern, a bioethicist at the University of Pennsylvania — he emphasized it would not be appropriate “to prioritize front-line physicians and not prioritize other front-line clinicians (e.g., nurses and respiratory therapists) and other key personnel (e.g., maintenance staff that disinfects hospital rooms).”
“Most of us are sheltering at home while there is this group of people going toward the danger. We have a reciprocal moral obligation if they suffer from their efforts,” White said in an interview.
Workers at two major hospital systems said there had been internal debate about whether high-ranking elected officials should be counted as critical workers. One person, who spoke on the condition of anonymity because he was not authorized to speak by his employer, said discussions were in reference to members of Congress. The other, an Inova employee who spoke on the condition of anonymity for the same reason, said they had discussed what might theoretically happen if Virginia Gov. Ralph Northam (D) needed a ventilator in a shortage.
“People have really strong views,” the employee said. “Some argued that if the governor did not get a ventilator and died, it could be very destabilizing. Others felt that would be the most egregious thing to prioritize him. It could create havoc or undermine public trust.”
Inova’s Motew said ethical principles allow for prioritizing “some individuals who provide more lifesaving opportunities if they could live” — and that this could include “government leaders.” He compared it to military medicine, in which those who are in a position to go back to help win the war are treated first.
“Particularly in a pandemic,” Motew said, “it is one of the factors of the survival of a population.”