Commentary: Who gets a ventilator in a pandemic?

By Dr. James F. Lally

COVID-19 came stealthily out of China and later Europe with an uncommon ferocity that crippled modern health care systems and upset the usual order of highly regimented economies and nation states. The pandemic has exposed glaring inefficiencies in the U.S. health care system. It also brought to the forefront questions uncommonly asked: Can medical resources be allocated fairly, and can our moral codes and ethical values withstand the onslaught of proposed questionable medical practices?

James Lally

While the intention to save the most lives during a pandemic is noble and morally uplifting, most health care workers would be alarmed if they had read a headline April 1 in England’s popular Daily Mail newspaper: “Older coronavirus patients could be taken off ventilators so they can be given to younger and healthier patients under (British Medical Association) guidelines.” The article refers to the then-released guidelines by the BMA just as England was confronting a large number of COVID-19 patients that was overwhelming the scarce resources of the National Health Service. A phrase from the Eighth Amendment to the U.S. Constitution comes to mind that aptly describes such a proposal: a most “cruel and unusual” process.

Such ethical guidelines are not unique to England, as Emanuel et al. proclaim in several astounding statements: “Because maximizing benefits is paramount in a pandemic, we believe that removing a patient from a ventilator or an (intensive care unit) bed to provide it to others in need is also justifiable” and “reallocating ventilators from patients who are unlikely to benefit to those who are is consistent with human rights.”

To restate that assertion: Someone else may have a right to a ventilator that may be saving a patient’s life. That seems like a very slippery legal and moral slope that is ungrounded in the precepts of common law and the canons of Judeo-Christian ethics. For those thoughtful caregivers who question sui generis ethics, Emanuel et al. provide cover and absolution from blame (and anticipate criticism) by stating that what they are doing is “not an act of killing and does not require the patient’s consent.” However, the British lawyer Kathleen Liddell strongly disagrees and believes that removing a ventilator from a patient without their consent “is a criminal offense” and “it could also be a breach of Article 3 of the European Convention on Human Rights.” Article 3 prohibits “inhuman or degrading treatment or punishment.”

Programs to ease the psychological burden on health care providers who are faced with the excruciating dilemma of whether to make morally questionable clinical judgments can seek refuge in shared responsibility or in decisions deflected to a triage committee. But that may merely lead to charges of “death panels.”

In keeping with the generally agreed-upon triage principle to “save the most lives,” it is understandable if bioethicists sanction the rationing of scarce medical resources a priori on a need basis or on a first-come, first-served basis; however, it is not a morally indifferent act if a ventilator is committed to one patient and then withdrawn to serve the needs of another patient. Such an action in the setting of an ICU is coldblooded, methodical, brutal and usually a death sentence.

A death with dignity is an afterthought and becomes an unfulfilled wish as the body bags pile up in hospitals overwhelmed by COVID-19.

Simplistic philosophical thought experiments such as the trolley problem (pull the lever to divert the trolley so that it kills one person rather than five) may give comfort to armchair bioethicists, but when many desperately ill COVID-19 patients are competing for a limited number of ventilators (as in ICUs in Bergamo, Italy), moral considerations often give way to very difficult and unpleasant practical decisions. But who can fault those who are caught in untenable, uncharted moral and legal minefields without maps or guidelines that are generally agreed upon?

As spring gives way to summer in this annus horribilis, those on the front lines of treating coronavirus patients desperately need moral benchmarks to shield them from violating their duty not to harm.

Short of that, the same medico-legal issues will perforce be revisited in a possible second wave of the coronavirus or in what the writer Laurie Garrett calls the next “coming plague.”

Dr. James F. Lally is a retired radiologist and a member of the Medical Society of Delaware’s Editorial Board. Originally published in the July/August 2020 Delaware Medical Journal. Copyright 2020 by the Medical Society of Delaware.