By Martin A. Strosberg, PhD – Professor Emeritus, the Clarkson – Mount Sinai Bioethics Program
In March and April of 2020, all eyes were on New York City, as they were for the cholera epidemics of the 19th century and the polio epidemic of 1916. At the beginning of the pandemic, cases were doubling every three days and the healthcare system was overwhelmed. In terms of death rate in New York City, the Covid-19 and Spanish Flu epidemics were not too far apart.
With the hospital situation, particularly in regard to ICU capacity and mechanical ventilators, in New York City spiraling out of control, Ellis Hospital in Schenectady, N.Y. and other area hospitals were left to wonder: could the tsunami move upstate? In fact, Governor Cuomo announced that the state need¬ed thousands more ventilators to overcome an acute shortage.
In 2015, the New York State Department of Health/ New York State Task Force on Life and the Law (2015) developed a plan, Ventilator Allocation Guidelines, for allocating (i.e., rationing) ventilators in an influenza pandemic. The Plan emphasized the use of an ethical framework to allocate scarce resources. The guiding principles of the framework included: duty to care for patients, duty to steward scarce resources, duty to plan, distributive justice (e.g., equitable distribution of resources among varying socio-economic groups), and transparency. Of particular interest is the “duty to plan,” explained in the 2015 Guidelines:
“A motivating force in designing an allocation system is the knowledge that planning is an obligation. An absence of a plan leaves allocation decisions to exhausted, over-taxed, front-line health care providers, who already bear a disproportionate burden in an emergency. A failure to produce an acceptable plan for a foreseeable crisis amounts to a failure of responsibility toward both patients and providers. Guidelines are essential to uphold health care staff’s commitment to patients, ethics, and to professionalism during a time of crisis.”1
By all accounts, Ellis Hospital took the duty to plan very seriously.2 By mid-March, Ellis Hospital, assembled a planning team to quickly develop guidelines for ventilators, based on the 2015 New York State Ventilator Allocation Guidelines. The team members came from the ethics committee, critical care, palliative care, nursing service, emergency medicine, and other stakeholders. They coordinated with area hospitals to make sure that the core principle of their policies was similar: among patients who would die without access to a ventilator, give priority to the ventilator to those who, based on physiological condition, have the best chance of surviving. Age, race, socio-economic status, and occupation were all excluded from consideration. To what end? To save the greatest number of lives possible, at least in the short run.
Other policies around the country, or even the state, might have different priorities. For example: give priority to persons who will survive and go on to live the longest number of quality years (e.g., younger persons); or give priority to doctors and nurses and other healthcare workers who became infected while treating Covid-19 patients. These are, of course, reasonable ends, but they were rejected by the Ellis planning committee. Instead, they chose to follow the 2015 New York State Guidelines.
In contrast to other hospitals that refused to reveal their prioritization methods, Ellis Hospital was quite transparent. The main contours of the plan were discussed at Grand Rounds (an audience of healthcare professionals assembled to take part in an educational program) on April 2, 2020. After going through the review process by relevant committees, the plan to follow the New York State Guidelines was adopted as official policy by the hospital. The New York State Guidelines outlined a process: rather than have a patient’s physician or a critical care physician make the decision, an independent triage committee would. They were expected to prioritize patients based an agreed-upon numerical scoring system informed by the physiological conditions of all patients needing a ventilator and those already on a ventilator.
Alas, the hospital policy could only be put into operation after an action by New York State, and the State never acted. Governor Cuomo and his Health Commissioner, Dr. Howard Zucker, failed to update and implement the New York State Ventilator Allocation Guidelines of 2015 either through an executive order or statute, leaving the hospitals in legal limbo.
Fortunately, Ellis Hospital never ran out of ventilators, beds, or staff. Unfortunately, it is likely that in the hardest hit hospitals of New York City, care was being delayed, diluted, or denied due to overstretched staff and equipment.3,4,5 Essentially, it was rationed, but sub-optimally, in an ad-hoc and non-transparent way.
In subsequent waves, the pandemic overwhelmed many more areas of the country. Regrettably, many states duplicated New York’s failure to establish a robust public policy supporting crisis standards of care in a public health emergency. In effect, the politicians punted. Ethicist Matthew Wynia explains. “No one would want to be accountable for making these decisions. They’re tragic decisions, which is why they roll downhill. Right? From powerful person to less powerful person to the person who can’t say I refuse to make that decision. That’s how they end up in the lap of the bedside doctor.”6
In such situations, I.C.U. and E.R. doctors and nurses become what the political scientist Michael Lipsky calls “street-level bureaucrats.” They face limited time and resources, contradictory performance expectations, and yet are asked to exercise enormous discretion over life-or-death services.7 The result can only be an exhausted, demoralized, and morally distressed hospital staff.
Although there will always be a place for individual professional discretion, it is up to hospitals and ultimately state governments to provide clear, transparent, and legally supportable guidelines for making the tough choices involved in patient triage. Unfortunately, far too many have failed to accept their responsibilities.
References
1.New York State Department of Health, New York State Task Force on Life and the Law. 2015. Ventilator Allocation Guidelines. Novem¬ber 2015, p. 36. https://www.health.ny.gov/regulations/task_force/re-ports_publications/docs/ventilator_guidelines.
2.Strosberg, Martin A. and James M. Strosberg. 2020. Schenectady’s Battle Against Contagious Disease: From Smallpox to Covid-19. Schenectady County Historical Society, Schenectady, New York, 2020.
3.Ouyang, Helen. “I’m and E.R. Doctor in New York. None of Us Will Ever Be the Same.” New York Times, April 14, 2020, updat¬ed May 27, 2020. https://www.nytimes.com/2020/04/14/magazine/coronavirus-er-doctor-diary-new-york-city.html
4.Powell, Tia and Elizabeth Chuang. 2020. “COVID in NYC: What We Could Do Better,” The American Journal of Bioethics 20, (7): 62-66. DOI: 10.1080/15265161.2020.1764146.
5.Fins, Joseph J. “Sunshine is the Best Disinfectant, Especially During a Pandemic.” Latest News, New York State Bar Association, June 1. 2020. https://nysba.org/sunshine-is-the-best-disinfectant-especially-during-a-pandemic/
6.Matthew Wynia in Kisner, Jordan, “What the Chaos in Hospitals Is Doing to Doctors, The Atlantic, January/February, 2021, https://www.theatlantic.com/magazine/archive/2021/01/covid-ethics-committee/617261/
7.Lipsky, Michael. Street Level Bureaucracy: Dilemmas of the Individual in Public Services, New York, Russel Sage Foundation, 1983.