Sam Bagenstos: These are really hard questions, right. I mean, these are tragic choices. This is a health system where people want to save everybody and they’re likely to be in a position very soon where they can’t save everyone.

Dan Gorenstein: Bioethicists, doctors, lawyers and state officials are all busy developing triage guidelines in response to the coronavirus to figure out who should get care before someone else.

It’s April 14.

Today, from the Annenberg Studio at the University of Pennsylvania, the ethical choices, the evidence, and the dangers that come when you design plans to ration care.

I’m Dan Gorenstein. This is Tradeoffs.

DG: In 2014, a group of physicians published “Triage: care of the critically ill and injured during pandemics and disasters.” 

The paper drew inspiration from the hard lessons of 9/11.

News clip: A level one trauma center, the closest to the World Trade Center

DG: Hurricane Katrina, SARS

News clip: The number of victims expected to triple within weeks.

DG: And the H1N1 pandemic.

Few people paid much attention.

But for the larger medical emergency planning community, this work represented global experts scouring the literature and reaching consensus on 11 principles for rationing access to ICU beds and ventilators.

Doug White: My name is Doug White. I’m at the University of Pittsburgh School of Medicine. Basically, I’m a physician who works in intensive care units focused on ethical issues in intensive care units.

DG: Doug was one of 96 experts consulted by the authors who undertook the project on behalf of the pulmonary and critical care society called “The American College of Chest Physicians” or Chest.

This framework is considered the gold standard by many in emergency medicine and has influenced policies adopted by states and hospitals.

One big idea: each hospital should put decision-making in the hands of a small group of senior doctors and nurses with emergency and critical care expertise to implement the guidelines, something called a triage team.

DW: There’s pretty broad agreement across every single triage document that I’ve seen that it should not be the bedside doctors making the decisions. The reason for this is both to increase the objectivity of the decisions and make sure that the guidelines are followed, but also, frankly, to minimize the distress that treating physicians may feel understandably when they’re trying to advocate for the well-being of their individual patient.

DG: Have we seen these sorts of triage teams be deployed in the field or elsewhere around the world? Is there evidence that they work?

DW: I’m not aware that this model has actually been head-to-head compared with having bedside doctors make these decisions. But there is a relatively rich and chilling body of evidence about what happens when you leave allocation decisions to bedside doctors. For example, there have been a few studies about what happens in hospitals when an ICU has to close for staffing reasons and the hospital is suddenly left with, you know, 20% of the ICU beds that they normally have. It becomes fairly tribal very quickly in the sense that individual doctors who are powerful are able to get their patients into ICU use in ways that other doctors in that hospital who are not quite as powerful can’t.

DG: The paper endorsed another common provision in triage frameworks: when confronted with the reality that you can’t save everyone, you shift to trying to save as many as you can.

DW: If we somehow tried to, for example, just treat patients as they came in on a first come, first served basis, the sort of sobering reality is that many more lives would be lost than if we took up considered thoughtful way for how to allocate the scarce resources.

DG: Explain explain that why would many more lives be lost if you took a first come first serve approach?

DW: For example, let’s say there were lots of patients coming into the emergency department with respiratory failure, and the first two people that you happen to see just happened to have a pretty poor prognosis. But what if the next three had a much better prognosis? Then we’d be in a situation where by not incorporating some considerations of likelihood of benefit, those later three would not get access.

DG: The whole point of switching away from first come, first served is to make sure scarce resources are not used on people who will likely die in short order.

To accomplish that, the 2014 Chest guidelines suggest weeding out certain classes of patients.

The policy excludes people doctors estimate have less than a year to live, like patients with chronic heart disease and cancer that has spread.

Doug says these exclusions are so broad that triage teams run the risk of making blanket judgements and treating people unfairly.

DW: There are many people who look at those exclusion criteria and say not only are they ethically problematic, but they almost certainly run afoul of US discrimination laws.

Imagine that someone with heart failure had a drug overdose and came in and needed a ventilator for eight hours as the drug gets out of their system. That patient has an excellent chance of walking out of the hospital the next day. But according to the frameworks that use these exclusion criteria, that patient would not be given an ICU bed or a ventilator.

DG: Ultimately Doug just thought a less blunt tool was needed.

So several years back he teamed up with a few colleagues to design a framework where everybody gets to be in line, no exclusions.

A scoring system still orders people within the line, but it doesn’t bar anyone from being in it. 

DW: What’s important about this approach is that if all of the sudden a bunch of ICU beds or ventilators come online that weren’t there, there are no people who are sitting there excluded and not being considered. Instead, all those resources immediately go to the people who are in the queue, but had a lower priority.

DG: Doug had another problem with the Chest guidelines.

Once you’ve identified everyone that will likely survive more than a year, how do you decide who to put at the front of the line — the 55-year old or the 20-year old?

The 2014 Chest protocol remains silent on that question.

Doug worries that leaves the door open for states or hospitals to rely on criteria prone to error and bias, like projecting out long-term life expectancy or making quality of life judgments.

So he added a guardrail to his guidelines, and capped a triage team’s ability to project life expectancy at just five years.

DW: Imagine you’re a patient with a disability that does to some degree limit your life expectancy. If we’re really, truly pursuing a maximizing approach, we would consider that in the framework and give it to the person without the disability. But that ignores that there are other ethically relevant considerations than simply maximizing life years. So we’ve taken an approach that says it doesn’t consider the long-term life expectancy. It considers the near-term chances of living.

DG: Under Doug’s guidelines people with less than five years to live are given priority to an ICU bed and ventilator over people with less than one year to live.

This kind of rationing of scarce resources already happens in medicine.

Doug, a pulmonologist by training, borrows this idea from lung transplants where candidates deemed unlikely to live very long after receiving a lung go to the back of the line.

DW: My whole professional life has been, at least in part, caught up with what do we do with a sort of inevitability that we won’t always have enough for everyone. We need to do that in ways that are both fair and do not throw such a wedge in society that you end up at the end of the experience with a society that’s far more divided than when it started.

DG: In the middle of the coronavirus crisis, two triage camps have emerged.

Some states and many hospitals incorporate exclusions, and in some cases also use long-term life expectancy projections and even quality of life judgments.

The other camp includes everybody and looks at near-term life expectancy, in an attempt to level the playing field between people with disabilities and those without.

Doug says Pennsylvania, Colorado and Massachusetts have adopted policies based on his guidelines, and he’s spoken with hundreds of interested hospitals in the last few weeks.

DG: As hospitals and states have scrambled to activate their rationing plans, disability rights advocates have raised alarms that guidelines from both camps — the ones modeled after the 2014 Chest paper and Doug White’s violate people’s civil rights.

They point out that many policies around the country are baking in bias — intentional or not — about the quality of someone’s life.

Alabama, with one of the most overt examples, stated that people with “severe mental retardation, may be poor candidates for ventilator support.”

Sam Bagenstos is a law professor at the University of Michigan.

SB: What’s going on in these cases is not a concern that the treatment won’t actually save their lives. But instead, the concern is that they won’t live as long or live as high quality lives in the years following the treatment.

DG: Within the last three weeks, Sam and other advocates have filed complaints against medical rationing plans in six states–Washington, Tennessee, Alabama, Utah, Pennsylvania, and Kansas.

Federal health officials closed the complaint against Alabama last week after the state had removed all exclusions from its crisis guidelines.

I asked Sam what he thought of Doug White’s policy, whether looking at someone’s near term prognosis — five years of life — seemed to be reasonable.

SB: Once we start talking about points based on survivability of five years, the number of disabled people or family members of disabled people who have told the story about how their doctor said they’re disabling condition would kill them within three years, and it turned out they’re still here 20 years later makes me really worried about that as a basis at all for distinguishing among patients when we’re talking about life-saving treatment.

DG: Sam and Doug agree you should provide rationed care in a crisis only to those people doctors believe can make it out of the hospital alive.

The disagreement comes in how long is long enough after discharge.

Sam argues the safest standard is six months — the same time frame doctors use to determine hospice eligibility.

SB: But once we get to a longer term than that, we really are in the realm where disability-based biases about life expectancy are going to be an issue. We really want to make sure we’re making individualized decisions and not decisions based on what underlying diagnosis someone has.

DG: A six month survivability standard certainly raises questions, like whether it’s reasonable to treat a person who likely has six months left to live the same as someone with two, three, or 30 years.

But here are two reasons why it may be fair to draw up the most generous guidelines.

One, no triage protocol out there has been tested in a pandemic, so we have little data.

Two, Sam says we need to remember why the United States is facing this crisis in the first place.

SB: We’re here in this situation of scarcity, not because of nature, but because of a bunch of human decisions. Right, a bunch of human decisions not to invest in surge capacity for ventilators, so to say to disabled people today that because of your disability, we’re sorry. You just have to bear the brunt of our scarcity when the scarcity was a result of a decision that they were excluded from largely. We can fully sympathize with the people who are on the front lines making choices about how to allocate their treatments right now. But when we’re thinking about the rules that govern our society, we have to think about that whole picture.

DG: This week Chest updated their 2014 guidelines, and made a major change.

The authors dropped all exclusions.

Marie Baldisseri: We have a bank of knowledge that we did not have back in 2014. Not to say we were ignorant and we didn’t know how to manage our patients, but we’ve just learned so much over six years.

DG: Marie Baldisseri, one of the authors, is an ICU physician at the University of Pittsburgh Medical Center.

Marie says thanks to medical advancements, people who would have died coming to the ICU in the past now are surviving.

That’s just one reason for the new policy.

MB: We are living in a very complicated, difficult time and I think it’s just become more in the forefront now that just excluding patients based on the fact that he has heart failure or kidney failure, he’s an HIV patient, it is unfair.

DG: It’s unclear whether the update will persuade state officials and hospital leaders to abandon exclusions, but at the very least the new guidelines reflect a change in thinking.

On a personal level, Marie is glad Chest has made the change. She’s also just glad that doctors and nurses in the U.S. even have guidelines.

A decade ago in Haiti, she led a medical team there after an earthquake killed and injured hundreds of thousands of people.

News clip: Haiti is battling the aftermath of a devastating natural disaster

MB: For the first time in my life, I had to triage.

News clip: The injured are taken to hospital in a country which simply doesn’t have the infrastructure to cope.

DG: Marie found herself making life and death decisions based on her best clinical judgment.

MB: We didn’t have an electronic medical record. We didn’t have a sophisticated scoring systems. It was sort of based on what did I think their life expectancy was? What was his age or her age?

In Haiti, I had to make those decisions every day — who would get dialysis, who would be put on a ventilator.

We had no other choice but to do it this way because there was such mass chaos.

It is bringing back some painful memories here. Memories that I’ve tried to sort of store away in those little recesses of your mind.

DG: After Marie left Haiti, she felt the weight of the decisions she made. She understood she had more authority than one person ever should.

Having to play that role, having that much responsibility, it sounds like it has haunted you.

MB: I hope it does continue to haunt me. I think that that’s never something I want to throw away. I want to remember that. I want to remember how terrible that experience was because we can do better now.

DG: In “normal times,” it’s easy to say everyone’s life is equally valuable.

As we face the chance hospitals will run out of ICU beds and ventilators, and rationing becomes less theoretical, we are forced to explicitly value one person’s life over another.

There’s no criteria, no guideline that can soften that harsh reality.

And it’s a tough one to grasp.

I’m Dan Gorenstein. This is Tradeoffs.