Ventilator Rationing Guidelines Are Discriminatory

(Bloomberg Opinion) -- As the rise in Covid-19 infections stresses hospital resources, a legal and ethical fight is brewing over the distribution of ventilators. Activists are warning that rationing plans currently on the books, by favoring patients likely to live longest, discriminate against the elderly and the disabled. And whatever the outcome of any lawsuits, the debate tests our lofty national commitment to equality.

Let’s start with the main legal issue, the applicability of the Americans with Disabilities Act, known as the ADA. Everyone agrees that the ADA forbids hospitals to discriminate in the delivery of medical care on the basis of disability. But although scholars have puzzled over how this rule applies when resources are scarce, the question remains largely untested in the courts.

A 2008 report from the Congressional Research Service, without resolving the question, warned that the transfer of a ventilator from a disabled individual to “an individual with a stronger likelihood of survival” would raise significant questions under the ADA. On the other hand, the 2006 pandemic response plan from the Homeland Security Council, an office within the White House, presupposes that during an emergency, scarce medical resources — explicitly including ventilators — “will be given to those whose medical condition suggests that they will obtain greatest benefit from them.” This recommendation is mirrored in current plans for the distribution of ventilators by overwhelmed acute care facilities.

In New York City, the epicenter of the infection in the U.S., an overwhelmed hospital would turn to the guidelines on ventilator allocation issued in 2015 by the state health department. The guidelines run to 266 often impenetrable pages, but they mostly revolve around a simple point: In times of scarcity, “a patient’s likelihood of survival (i.e., assessment of mortality risk) is the most important consideration when evaluating a patient.” The losers in this process should instead be offered “alternative forms of medical intervention and/or palliative care.” In other words, just as advocates for the disabled fear, the plan is to allocate ventilators to the healthiest patients.

To justify this approach, the report undertakes some clever ethical gymnastics. For example, the guidelines suggest that a patient who already uses a ventilator, upon arriving at a hospital facing a shortage, might find the device taken away and given to another patient. How is this possible? Get ready for some medical ethics Newspeak:

“While a policy to triage upon arrival may deter chronic care patients from going to an acute care facility for fear of losing access to their ventilator, it is unfair and in violation of the principles upon which this allocation scheme is based to allow them to remain on a ventilator without assessing their eligibility.”

The implication is that any incentive the rule creates to avoid the hospital if you’re on a ventilator is a feature, not a bug. Because according to the guidelines, if we let patients already on ventilators keep them, we’re discriminating against everyone else:

“Distributive justice requires that all patients in need of a certain resource be treated equally; if chronic care patients were permitted to keep their ventilators rather than be triaged, the policy could be viewed as favoring this group over the general public.”

This is the sort of chilling logic that only a classroom or a committee could come up with.

An approach that penalizes the disabled might well be illegal. Yet the drafters of the New York guidelines  view legal protections as obstacles to what they seek to accomplish, dismissing the Americans with Disabilities Act in a derisive footnote that concludes: “As a general rule, patients and their attorneys are apt to involve several federal civil rights laws — not just the U.S. Constitution — to oppose ventilator allocation decisions.” Notice the nice clean language — “ventilator allocation decisions” — when what is really being described is choices about who lives and who dies.

It’s easy to see why some would consider those choices discriminatory. But credit the New York health department with covering its backside. Early on, the report explains that the guidelines are “non-binding” and the legal issues are “complex.”

I quite understand that no allocation scheme will ever be perfect. And to be sure, when resources are scarce, we need some basis on which to choose. As legions of ethicists have pointed out, however, distributing scarce medical resources to those likely to survive the longest is only one of many possibilities.

Some argue that a proper allocation should consider the views of the public — views often at variance with the preferences of experts. In surveys, for example, respondents will sometimes opt for saving the older patient rather than the younger; or will choose to favor the poor patient over the rich one. Another response to scarcity — a lottery — never commands a plurality, although a 2016 study found it to be rated most highly by those who lean left.

The ethical questions, in short, are as complex as the legal ones. No one can predict how a potential lawsuit will be resolved. Still, we should bear in mind that by their mere existence, the Americans with Disabilities Act and similar statutes represent an ethical judgment already made by our democracy — a judgment that even in an emergency, we shouldn’t count some lives as more valuable than others.

It is worth nothing that no one on the committee that drafted the guidelines is identified in the report as an advocate for the disabled.

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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