As the toll of the coronavirus pandemic rises, Americans confront with increasing distress the idea of rationing health care. Choosing to deny care to people in desperate need is anathema; it feels unAmerican, even. But in fact it happens all the time: when Congress allocates money for Medicare and Medicaid; when insurance companies reject claims; when the Trump administration decides to shut down the Federal marketplace for the Affordable Care Act.
Rationing is also what happens when governments whittle down their budgets for preparing for deadly pandemics, as they did over the last decade. That goes some way to explaining why the U.S. now has the steepest trajectory of COVID-19 cases of any nation so far, including China and Italy, and is experiencing a critical-care crisis in hospitals across the land. As the first wave of the SARS-CoV-2 outbreak begins to crest over the nation during April and early May, it will send patients in respiratory distress to hospitals en masse, where many of them may die for lack of treatment.
The problem is how to keep these patients alive long enough for their immune systems to ward off the disease. That too-often requires intubating them with a breathing tube attached to a ventilator, which pumps oxygen into the lungs in rhythm with a patient’s natural breathing, for as long as two weeks. As intensive care wards fill up with patients needing ventilators, hospitals expect to see a shortfall. U.S. hospitals have about 160,000 ventilators, according to an analysis in the New England Journal of Medicine, plus another 8,900 in the Strategic National Stockpile. COVID-19 will hospitalize 2.4 million to 21 million people in the U.S., 10 to 25 percent of whom will need to be put on ventilators, the Centers for Disease Control and Prevention estimates. For each ventilator, as many as 31 patients would be waiting in line. In the best case scenario, 10 ventilators will be available for every 14 patients. Since those are averages, hard-hit areas may be worse off.
How will doctors decide at the moment of crisis who lives and who dies?
Bioethicists are hammering out procedures and protocols as the crisis develops in an effort to help doctors make fair and compassionate decisions. Everyone agrees that race, religion and wealth should not matter when it comes to doling out care. But what factors should matter? Should youth take priority over old age? Parents over grandparents? Single mothers over deadbeat dads?
“The reality is, we already have a very unfair allocation of health care resources,” says Dr. Robert Truog, a critical-care pediatrician and bioethicist at Harvard. “If you’re poor and uninsured, you already don’t get the kind of health care you need. But that happens under the radar. The striking thing about ventilators is that it can be an immediate life and death decision. If someone can’t breathe, you have a limited window to save their life. If you need it and you don’t get it, you’re going to die.”
The doctors trying to bring some order to these life-and-death decisions have got a lot working against them. State guidelines vary widely and aren’t always followed. The health care system is fragmented and largely run on a just-in-time, highly-competitive basis that maximizes efficiency but leaves little wiggle room for a crisis. Will the haves get better emergency care than the have-nots? Will big donors to hospitals, and patients with the best lawyers, jump to the head of the line, while the uninsured are left to die?
This is the burden that falls on the shoulders of the nation’s doctors and health care workers as they try to save lives.
Rationing in a new guise
Americans have some direct experience with rationing. When it comes to replacement organs, states defer to the United Network for Organ Sharing (UNOS), a non-profit, which conducts the affair in a more or less fair and orderly way. UNOS stipulates that recipients must be good medical candidates for a replacement organ and in a position to receive an organ as soon as one becomes available. Wealthy people like Apple founder Steve Jobs, who can hop on a private plane and show up anywhere in the nation in short order, may have some advantage over candidates who have to take the bus, but this particular kind of inequity generally stays out of the headlines.
Unlike organ donation, rationing during COVID-19 affects potentially the entire population in particularly dramatic fashion. It is unprecedented in the lifetimes of today’s doctors and hospitals—not since World War II and the 1918 influenza pandemic, when hospitals were overwhelmed with patients in respiratory distress, have doctors faced crisis rationing of this magnitude. Like most aspects of the U.S. health care system, protocols for how to handle this emergency are inconsistent or non-existent.
State guidelines for “crisis standards of care,” which are meant to help when ERs are inundated and resources are short, vary widely from one state to another. Some states have policies that exclude certain types of patients from receiving critical care in a crisis, which some bioethicists believe are discriminatory. “Many states have policies that exclude whole groups of patients,” says Dr. Douglas White, director of the Program on Ethics and Decision Making in Critical Illness at the University of Pittsburgh Medical Center. For instance, Alabama was recently criticized for guidelines that call for excluding patients with severe mental retardation. “Tennessee, Kansas, South Carolina, Indiana—they all have laws containing exclusion criteria,” he says.
Even states that don’t have exclusion policies use standards that many bioethicists consider unfair. The main goal in New York state’s policy guidelines, for instance, is to maximize the number of lives saved. That means a 90-year-old patient would get the same priority as a 20-year-old patient, assuming they both have an equal chance of survival. “This runs against the moral intuitions of many people,” says White.
White and some colleagues have worked out a set of critical-care protocols intended to ensure that resources in a crisis are allocated in a fair and non-discriminatory way. Rather than using exclusion criteria, it combines four principles to generate a score.
The two primary principles are saving the most lives and saving the most “life years,” which tips the scales to the benefit of younger patients. A secondary principle, used in the event of a tie, gives priority to health care workers, broadly construed to be individuals who are essential to the disaster response and who put themselves at risk. Another secondary principle is “life cycle” status, another tip to youth. Pennsylvania recently adopted the protocol for its 300 hospitals, and White says Kaiser, Med Star and other large health care providers are considering them as well.
These Pittsburgh protocols, as they’re called, embody an idea that most bioethicists agree on: that bedside doctors should not make the life-or-death decisions about who gets a scarce ventilator and who does not. It’s hard enough for clinicians to save their patients’ lives under trying circumstances; they should be free to advocate for the patients without the burden of having to weigh whether they’re worthy of care. That job should go to an independent group of clinicians who are blind to the patient’s race or religious background and whether they’re disabled, homeless or a major hospital donor. “The people making the triage decisions should not even have access to that information,” says Dr. Matthew Wynia, director of the Center for Bioethics and Humanities at the University of Colorado.
Having independent teams make the tough calls is not only fairer, it’s good medicine, says Wynia. The teams have better “situational awareness” of the resources available in nearby hospitals, which can affect decisions about what to do with individual patients. “God forbid someone makes a tragic choice to allocate a resource to one person and the other ends up dying, and then three days later you realize there was another hospital six miles away where we could have transferred them,” he says.
Crisis in practice
Bioethicists are hammering out these protocols, and trying to persuade states and hospitals to adopt them, in the midst of the crisis. But much of the thinking has been done over decades of academic study and debate, punctuated by the occasional infectious-disease outbreak—the 2009 pandemic flu, the SARS outbreak of 2002, and so forth. Each new outbreak gives public-health officials a shudder of fear that a catastrophe, on the order of the 1918 flu, which killed tens of millions of people, is at hand. Now that the catastrophe has arrived, we will find out what actually transpires in emergency rooms.
It’s difficult to know at this early stage. For all the anticipation by experts, the current crisis is unprecedented in living memory. “Never in my lifetime have we had anything like this,” says Wynia. “You have to go back to World War II to see the kinds of decisions that are being made right now.”
The lack of preparation is palpable. Many hospitals do not seem to have established clear protocols for ER doctors to follow. Instead, they seem to be leaving these decisions to the discretion of the bedside doctor. New York, where most hospitals have canceled elective surgery and are devoting their resources to the influx of COVID-19 patients, is expected to fall more than 9,000 ventilators short of demand, according to data compiled by the Institute for Health Metrics and Evaluation, a non-profit. Several hospitals in New York City have given their blessing to doctors who elect not to resuscitate COVID-19 patients, the Washington Post reports. NYU Langone Medical Center reminded doctors in an email to “think more critically” about allocating ventilators and told them it supports doctors’ decisions to “withhold futile intubation,” as reported in the Wall Street Journal. In a statement, NYU Langone said the policy had been put in place before the COVID-19 outbreak and that its policies are in line with New York state guidelines.
At the moment, hospitals are scurrying to avoid having to make military-style triage decisions. Ventilators aren’t the only resource that’s short. The blood supply is low because people aren’t going out to donate. Staffing is not up to the levels that would be needed in a full-scale crisis, especially for workers qualified to operate ventilators and other equipment in intensive-care units. “These are not machines that you just plug someone into and walk away,” says Wynia. “They need to be managed all day long by ICU-level staff. Even if we had another 50,000 ventilators to send around the country, we don’t have people to run them, and 50,000 may not be nearly enough.”
As of the beginning of April, Mt. Sinai Hospital Health System, which operates eight hospitals in the New York City area, was rushing to assemble a response to a rapid influx of patients. New York state, according to IHME projections, was expected to hit peak demand for hospital beds over the first two weeks of April, ahead of most of the rest of the nation. Dr. Brendon Carr, chair of emergency medicine at Mt. Sinai, says the hospital was adapting BiPAP machines, used for treating sleep apnea, to work as substitute ventilators in a pinch. (BiPAP stands for Bilevel Positive Airway Pressure.) Like ventilators, BiPAP machines force air down a patient’s throat, but rather than deliver the oxygen in a tube, they use a mask that fits over the patient’s mouth. “It’s not crazy to think that those can be converted into something that can work through a different mechanism, through a different tube,” says Carr. In addition, he said, anesthesia machines now sitting idle in operating rooms, due to the postponement of elective surgery, could also be repurposed.
Doctors can also put two patients on one ventilator. During the Las Vegas shooting in 2017, for instance, doctors used this technique to cope with the sudden influx of shooting victims. It requires paralyzing both patients, however, and using the ventilator on a setting that forces air down the breathing tube. For this reason, doctors are loathe to try this on COVID patients, who typically have to stay intubated for a week or two while their immune systems fight off infection. In that time, the muscles around the lungs atrophy, leaving the patients unable to breath on their own.
Eventually, equipment manufacturers and inventors will step into the breach and “close the delta”—the gap between the supply of ventilators and demand. “We look at the delta and, of course, we’re really scared,” he says. “But it’s amazing the way that people are stepping up to try and invent and create ways to change that gap. It might miss the peak in New York City, but it might catch the back-end of the peak.”
To handle the staffing shortage, Mt Sinai has reorganized its critical-care staff to incorporate doctors who don’t typically work in emergency care. It is putting experienced critical care doctors, who under ordinary circumstances would manage a few dozen ICU patients, in charge of supervising doctors and other staff who are being called up to work in the ICU.
How would doctors at Mt. Sinai handle the difficult choice of, say, having to pull a patient off a ventilator to make it available for another patient deemed to have a better chance of survival? Carr says there’s no hospital-wide policy to guide the actions of the doctor in charge. “How will we handle it, if and when it comes? It’s a good question,” he says. “There are lots of folks who in the abstract can talk about it. If you’re a health system right now, are you going to create a protocol around this? How do you think it would be received if you did?”
Instead of using protocols, Carr says, the hospital will rely on patients and their families, in consultation with the bedside doctor, to come to an agreement voluntarily. “If and when we get down to a very low number of ventilators for our health system, would it make sense to just have a protocol in place that makes us the decision-maker?” he says. “Or might it make more sense to say to families of loved ones who’ve been on the ventilator for ten days that are not progressing, ‘Hey, we’re in a critical place right now. I want you to know that we have 300 people ventilated in our hospital system and there are more patients coming in. We would like to have thoughtful ongoing conversations about the direction that your loved one is going.'”
A wild card is how a litigious society will respond when patients are denied care. In the absence of clear protocols, doctors and hospitals run the risk of legal challenges that could gum up the works. “We think the risk to physicians is low, but not zero, and not trivial,” says Glenn Cohen, a law professor and bioethics expert at Harvard Law School.
The act of taking a patient off a ventilator is, legally speaking, fraught. Criminal law generally doesn’t hold doctors responsible for not providing care if they don’t have the resources, but taking a patient off a ventilator without their consent is a different matter. “It looks on paper like homicide,” he says. “It doesn’t matter if the patient would have died anyway. Case law says that shortening a life even by a few hours could lead to charges of manslaughter or murder.”
In a crisis, Cohen doesn’t believe prosecutors would pursue such cases against doctors. But it would be up to the individual prosecutor. On the civil side, doctors could be sued for malpractice, but the risk that a jury would award damages is low, he says. If a doctor wanted to take a patient off a ventilator, there’s also the possibility that a patient’s family could seek an injunction from a judge, which would bring the whole process to a halt.
Although Federal statutes grant some immunities for health care workers, they’re not adequate, and of all the states only Maryland provides adequate protection. Cohen would like to see Congress pass a law that provides temporary protection for doctors for the duration of the COVID crisis. In the interim, he says, state district attorneys and attorneys general should write letters pledging not to prosecute doctors if they abide by protocols such as those developed in Pittsburgh. “If doctor is engaged in good-faith compliance with standards, they should be immune from prosecution,” he says.
The crisis in critical care that U.S. hospitals are now dealing with reminds Truog of his experience in Haiti after the earthquake in 2010. He saw children with severe pneumonia, who needed ventilation. But hospitals didn’t have enough of the devices to go around, so doctors had to make difficult choices. “This was part of daily life for Haitians,” he recalls. “It seemed like a necessity. We felt we were doing the best we could.”
What he finds striking, in retrospect, is how ordinary rationing critical health care seemed in one of the poorest nations on earth. “I think it will be a lot harder for Americans.”