As the surge of the coronavirus outbreak in Pennsylvania looms, so does the risk that there will not be enough lifesaving resources to treat every patient. All over the country, states are rushing to develop and adopt guidelines to help hospitals and health workers with the extremely difficult decision of medical rationing — Who gets the last ventilator? ICU bed? Medication? Scarce staff time? These questions raise a series of ethical dilemmas — and impossible choices.
Pennsylvania does not have statewide rationing guidelines, yet. Last week, the New York Times published a draft of Pennsylvania’s rationing guidelines, which, according to the Department of Health, was meant for hospitals and not for wide distribution. The draft guidelines are based on the University of Pittsburgh Medical Center’s scoring system that prioritizes patients who are more likely to survive the current illness with treatment (for example, surviving COVID-19 with ventilation) and who don’t have another condition (like cancer or heart failure) so advanced that near term survival is unlikely.
Under any guidelines, in times of severe scarcity, someone will not get the care that they deserve — but that is not an invitation for discrimination against any group, particularly people with disabilities.
On Friday, Disability Rights Pennsylvania and other advocacy groups filed a complaint with the U.S. Department of Health & Human Services’ Office for Civil Rights, arguing that Pennsylvania’s draft guidelines are discriminatory. According to DRP, the guidelines allow for bias and myths about the impact of disabilities on prognosis, which could improperly leak into rationing considerations.
With the apex of the coronavirus approaching, it is critical that Pennsylvania finalize the guidelines quickly to give health workers time to study them. The Department of Health says they are working with stakeholders on a final version, a process that needs to include the disability community — a group that does not deserve to bear the brunt of the inability of the richest country in the world to prepare for a pandemic.
In addition to the guidelines, Pennsylvania should follow the lead of states like Maryland and enact civil and criminal immunity to health workers during health crises. Following Hurricane Katrina, health workers in New Orleans faced civil and criminal lawsuits for efforts to provide care in unimaginable scenarios — often risking their own health.
Health workers who are asked to make impossible decisions should not fear litigation. Providing civil and criminal immunity at times of health crises doesn’t eliminate ways to hold bad actors accountable. According to Diane Hoffmann, a professor at the University of Maryland School of Law, for a physician to get immunity under Maryland’s law, they would have to comply with guidelines in good faith. In addition, state-level immunity does not protect from lawsuits under federal law — like the Americans with Disabilities Act — in cases of discrimination.