FAIRNESS : Clinician, Katherine Fischkoff

Katherine Fischkoff, MD, MPA (USA)  is an Acute Care Surgeon and intensivist at Columbia University and is the Medical Director of the Surgical Step Down Unit. She is an active member of the Columbia Ethics Committee, the SCCM Ethics Committee and an ethics consultant.
Fairness has been a driving principle of the treatment of COVID patients throughout the pandemic response. However, given the overwhelming number of patients in New York City, the challenges to fairness evolved as the COVID crisis unfolded.
To begin with, on March 16, 2020, all elective and semi-elective surgeries and other procedures were cancelled in New York City to allow hospitals to free up resources in anticipation of the surge of patients (25)(26). This presented the first questions of fairness. Patients who were scheduled for often time-sensitive treatments were postponed in order to be able to care for the thousands of COVID + patients. This was, of course, not just a question of fairness, but also of patient safety, reallocation of resources and preservation of PPE. However, any time one group of patients is prioritized over another, we must ask ourselves whether the outcomes were proportional. In this case, the overwhelming answer is yes. Shutting down normal hospital operations was essential in being able to safely take care of the enormous crush of patients that presented. However, should there be another wave, the proportionate harm to those patients who would be postponed needs to be considered and alternative options proposed in order to avoid interrupting their care again.
The second question of fairness came when questions of triage arose. In the United States, there is a strong cultural and legal emphasis on patient and family autonomy. This American phenomenon persists in part because the health care system is so resource rich. As an example, New York State law in the form of the Family Health Care Decision Act (27) does not permit physicians to withhold or withdraw life-sustaining therapy over the objection of patients and their families. In this cultural and legal context, when the COVID surge began and there were serious concerns about scarcity of resources, the governor of New York decided that rather than approve a triage system to decide which patients would get a ventilator and which would not, he would work to provide ventilators for everyone and New York hospitals committed to rapidly expanding their ICU capacity (28). My hospital typically has 117 ICU beds but over the course of two weeks, we expanded to nearly 300 ICU beds and pop up tents provided extra inpatient beds. This was done without a compensatory increase in staffing. But because of this, no patient was turned away.
In 2008 after the H1N1 flu outbreak, many states put together a resource allocation plan that could be used in the case of crisis when resources were overwhelmed. The New York State Ventilator Allocation Guidelines (29) were built on the ethical principle of fairness- that all patients would be given equal access to ventilators regardless of socioeconomic factors. It begins with a set of immediate exclusion criteria that are applied to a patient when he or she is determined to need a ventilator, such as unwitnessed or recurrent cardiac arrest, severe traumatic brain injury or irreversible hypotension refractory to fluids and pressors. If a patient meets any of those criteria, he or she is not given a ventilator but is offered either best medical management or palliative care. If a patient needs a ventilator but does not meet any of the immediate exclusion criteria, he or she goes on to evaluation by a “Triage Committee” which follows a very specific pre-determined algorithm to decide whether a patient would be given access to a ventilator.
The goal of the Allocation Guidelines is to determine a patient’s access to a ventilator based on prediction of likelihood of survival and not based on value judgements. In fact, to uphold the fairness of the process and to ensure there would not be any decisions based on social or economic factors, the triage committee is a third party whose representatives are not directly involved in the care of the patient and does not receive any demographic information.
As noted above, the Allocation Guidelines were not activated during the COVID crisis. With an incredible show of collaboration, creativity and immense hard work, hospitals in New York City were able to care for all patients who had COVID. The question must now be asked, is itever fair to activate a triage process and deny access to critical care resources if there is the option to stretch resources further? The Institute of Medicine describes the spectrum of hospital expansion in response to a public health emergency (30). Conventional capacity is the normal operating capacity of a hospital. Contingency capacity is defined as operating significantly above a hospital’s usual capacity but is a state in which normal standards of care can be delivered. Crisis capacity is the final stage in which hospital resources are stretched so thin that normal standards of care cannot be provided. It is often recommended that triage systems be activated before a hospital enters crisis capacity as a mechanism to help avoid providing crisis standards of care.
New York made a decision to enter crisis capacity rather than activate a triage system. This necessarily meant that hospitals were providing crisis standards of care to all patients rather than normal standards of care to fewer patients. Nursing and physician ratios were tripled, non-ICU trained physicians were caring for ICU patients and all manner of hospital spaces were repurposed to create rooms for ICU level patients. One particular example was the provision of dialysis. So many critically ill patients required dialysis that hospitals quickly ran out of machines and supplies (31). This meant that in some cases, in a manner not consistent with typical standards of care, patients received fewer hours of dialysis than normal or had peritoneal dialysis as a manner of stretching the supply of dialysis to meet the demand.
As an acknowledgment of crisis standards of care and in order to support clinicians’ ability to continue to care for so many patients, the governor of New York passed the Emergency Disaster Treatment Protection Act (32). The Act’s stated purpose is to broadly protect health care facilities and professionals from liability for the treatment of patients during the COVID-19 pandemic. The Act shields health care professionals from civil and criminal liability in connection with services provided to any patient as a result of and during the COVID-19 crisis, so long as decisions are made in good faith. For decisions that are alleged to be unlawful, the Act also provides immunity if they result “from a resource or staffing shortage.” Such legal protections were imperative to allow healthcare workers to continue to practice in the crisis environment but also are a recognition that the provision of crisis standards of care may contribute to adverse events.
While there are many ongoing conversations about whether New York should have activated triage systems, I have never been prouder of my city and my colleagues for their response to the COVID crisis. Taking care of nearly 120,000 New York City patients required perseverance, courage, resourcefulness and a willingness to accept personal risk. It will be months before we have outcomes data on the COVID patients and even longer before we will fully understand the consequences of our decision to treat all New Yorkers. But until then, we can stand tall in the knowledge that while our healthcare system was under unprecedented stress, we performed heroically and fairly.