Bioethics: Ethical Considerations of Ventilator Triage During a Pandemic

JurisdictionUnited States,Federal
Publication year2020
CitationVol. 37 No. 1

BIOETHICS: Ethical Considerations of Ventilator Triage During a Pandemic

Susannah J. Gleason
Georgia State University College of Law, sgleason3@student.gsu.edu

William J. Keegan
Georgia State University College of Law, wkeegan1@student.gsu.edu

BIOETHICS


Ethical Considerations of Ventilator Triage During a Pandemic: Formulation and Implementation of Ventilator Triage and Other Scarce Resource Allocation Guidelines for Use During COVID-19

Code Sections: 29 U.S.C. § 794; 42 U.S.C. §§ 6101, 6102, 6103, 12132, 18116

Summary: In the midst of the COVID-19 pandemic, hospitals across the country faced unprecedented volumes of patients seeking treatment related to the respiratory complications of the virus. As a result, states were forced to reassess existing scarce resource allocation guidelines to appropriately accommodate the high demand. This Peach Sheet analyzes the ethical considerations implicated in enacting and following these guidelines when treating patients, specifically in the context of ventilator triage in response to the COVID-19 pandemic.

Introduction

In early 2020, COVID-19 swept across the world, affecting every corner of the globe from New Zealand to the United States on a scale not seen since at least the Hong Kong flu of the late 1960s, and likely the infamous Spanish flu of the 1920s.1 The U.S. federal government declared a public health emergency in response to the growing threat posed by COVID-19 in late January.2 The United States recorded its first COVID-19-related death a month later in late February, and the

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situation rapidly deteriorated from there.3 Per data available from the Centers for Disease Control and Prevention (CDC), as of October 10, 2020, the United States had reported over 7.5 million cases of COVID-19 and over 200,000 COVID-19-related deaths.4 At that time, the United States ranked ninth in the world, with 653.98 deaths per million inhabitants, according to German statistics from Statista.5 Throughout the 2020 summer, many states, including Texas, Arizona, Alabama, and both Carolinas, reported increased rates of COVID-19 transmissions and hospitalizations, casting some doubt that the rise in cases was solely due to increased testing availability.6 The American response faced heavy scrutiny due to several factors, including the severity and prolonged nature of the pandemic in the United States, as well as the seemingly inconsistent and conflicting nature of expert recommendations and guidelines.7 Chief among these concerns was the revival of ethical concerns surrounding scarce resource allocation guidelines, more colloquially referred to as ventilator triage policies.8

To prevent the hospital overcrowding seen in other COVID-19 hotbeds, most American states and municipalities instituted fairly

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strict lockdown measures.9 Additionally, many states and healthcare organizations proactively published scarce resource allocation guidelines for the COVID-19 pandemic.10 Typically, these guidelines were not legally binding and were meant to be used as a tool for hospitals when formulating their own guidelines.11 However, critics claimed these guidelines "neglect[ed] human values in favor of unconscionable ranking by economic and identifiable considerations."12 These concerns and others were echoed by bioethicists and legal scholars for at least a decade and raised a myriad of questions around the state's role in the current healthcare system, the legal implications of following state-recommended guidelines, and the formulation of legitimate and accepted guidelines based on well-recognized bioethical principles.13

Background

The history of United States bioethics reaches back to the Anglo-Saxon common law notion of necessity, showcased by the mid-nineteenth century landmark case United States v. Holmes.14 The reasoning articulated in Holmes had a profound impact on bioethics in both the United States and Western Europe, and is still taught in bioethics classes around the country.15

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In Holmes, a passenger ship hit an iceberg and left thirty-odd crew members and passengers in a longboat waiting for rescue.16 The longboat encountered rough seas, sprung multiple leaks, and began taking on water and sinking.17 On the order of the highest-ranking officer aboard the ship, the crew members aboard the longboat tossed fourteen passengers, including two women, into the sea.18 Upon arrival in the United States, a surviving passenger filed a complaint.19 The only member of the crew who could be located, Alexander Holmes, was initially charged with murder, though the charge was downgraded to manslaughter after a grand jury failed to indict Holmes on the murder charge.20 The Holmes court articulated that there may be times when it is necessary to sacrifice the life of the passengers to ensure there are "a sufficient number of seamen to navigate the boat" because without those navigators, the ship would not survive its journey.21 The court carefully avoided condoning the actions of Holmes and his fellow crewman, noting that only the absolute minimum number of men needed to pilot the ship should have been given preference: "But if there be more seamen than are necessary to manage the boat, the supernumerary sailors have no right . . . to sacrifice the passengers."22 Further, the court went on to say that in situations where someone's skill set does not help avoid the current situation, such as when marooned with no food, the individuals must resort to "the fairest mode" of selection: "selection . . . by lots."23

These principles remained primarily theoretical for bioethicists in the United States until the early 1960s when the first kidney dialysis machines were put into practice in a Seattle hospital.24 In 1962, the nonprofit Seattle Artificial Kidney Center located at the University

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Hospital developed three kidney dialysis machines, which were capable of treating nine patients per year at the cost of $20,000 per patient.25 After a year of providing dialysis treatments, the University Hospital forced the center to relocate to the Swedish Hospital in Seattle due to a lack of funding.26 The Swedish Hospital then offered to fund the center's research and operation of the dialysis machines.27 However, it quickly became apparent that the need for dialysis treatment far exceeded the availability of machines, forcing the Swedish Hospital to determine how to adequately allocate the use of such machines.28 What happened next drew little attention at the time but has been judged much more harshly in hindsight. With the help of the local medical society, the hospital formed a committee, made up of local citizens, to address the issue of appropriately allocating the available dialysis machines to those patients in need.29 The committee, which became known as the "God Committee," individually processed each potential patient's eligibility for dialysis treatment and granted access to the machines based on recommendations from kidney doctors—the committee chose who received treatment and who did not.30 First, the committee categorically barred all children and those over the age of forty-five from receiving access to the machines.31 Next, the committee drew up a list of factors that should be weighed for the remaining applicant pool.32 The factors included "sex, marital status, number of dependents, income, net worth, emotional stability, educational background, occupation, past performance, future potential, and references."33 Rather than weigh these factors and recommendations free from biases, the committee ultimately made arbitrary decisions

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based on their own personal values of worth to the community—a result that gave the embryonic American bioethics community a case study still examined today.34 Shana Alexander from LIFE Magazine observed the committee's work for six months and published a particularly shocking conversation in her article that brought to light the ethical issues with such committees:

HOUSEWIFE: If we are still looking for the men with the highest potential of service to society, I think we must consider that the chemist and the accountant have the finest educational backgrounds of all five candidates.
SURGEON: How do the rest of you feel about Number Three—the small businessman with three children? I am impressed that his doctor took special pains to mention this man is active in church work. This is an indication to me of character and moral strength.
HOUSEWIFE: Which certainly would help him conform to the demands of the treatment . . . .
LAWYER: It would also help him to endure a lingering death . . . .
STATE OFFICIAL: But that would seem to be placing a penalty on the very people who perhaps have the most provident . . . .
MINISTER: And both these families have three children too.
LABOR LEADER: For the children's sake, we've got to reckon with the surviving parents [sic] opportunity to remarry, and a woman with three children has a better chance to find a new husband than a very young widow with six children.
SURGEON: How can we possibly be sure of that?35

Thankfully, this ethical dilemma was quickly solved as Congress made dialysis publicly funded through a Medicare supplement after

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more machines became available.36 However, the takeaway from the "God Committee" for the American bioethics community was clear: The principles of Holmes' were no longer merely theoretical topics of discussions on ethical allocation of healthcare. It was imperative to give hospitals the tools they needed to avoid another situation where the "bourgeoisie spared the bourgeoisie" through "prejudices and mindless cliches."37

At the turn of the century, the need for resource allocation guidelines shifted from medical equipment for diseases such as kidney failure to medical equipment for infectious diseases.38 As several foreign diseases affecting the respiratory system spread across the United States during the 2000s, it became easy to...

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