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.