As coronavirus cases soar across our region, hospitals taxed to capacity may soon face the unthinkable — deciding who lives and who dies. The prospect that we or our loved ones might be denied needed care during the pandemic is distressing for anyone. But those who are older, disabled or have terminal conditions like Lou Gehrig’s disease have good reason to fear being put at the bottom of the priority list. That is because experience has taught us that many people, including health care professionals, often see people who are aged, disabled and terminally ill as “damaged goods” or “short-timers.”
Now some might defend giving lower priority to patients who are older, disabled or have serious underlying health conditions. After all, providers have an obligation to responsibly steward scarce resources during a public health crisis, and isn’t this the group of people who are most likely to die when they contract COVID-19? While it is true that patients with certain health conditions or advanced age often have poorer prognoses than other patients, this is not always the case. Yet studies show that even well-meaning providers sometimes make medical decisions based on stereotypes or assumptions that devalue the lives of older or disabled patients. Consequently, hospitals might give lower priority to some patients who in fact would respond well to treatment.
Several federal anti-discrimination laws protect aged and disabled people from this scenario. According to recent guidance from the U.S. Department of Health and Human Services, providers cannot simply assume that patients of advanced age or with certain underlying conditions are less likely to survive COVID-19. While providers can take into account factors like age, physical and mental impairments and other diagnoses to evaluate a patient’s prognosis, this assessment must be done on a case-by-case basis. This means hospitals cannot implement triage protocols that categorically deny care based on age cut-offs or certain diagnoses, or functional impairments. For example, hospitals cannot automatically withhold care from all patients over the age of 70 or patients with significant intellectual disabilities or metastatic cancer. Nor can hospitals prioritize patients with longer life expectancies or those judged to have a higher quality of life, as doing so implies that the lives of younger, nondisabled adults are more valuable than those of older adults and people with disabilities.
How are hospitals implementing these federal guidelines? We don’t know. Hospitals are not required to publicize their triage protocols, and we were unable to find any hospitals in Houston that have voluntarily done so. This lack of transparency leaves the public in the dark as to whether hospitals will ration care in ways that illegally deny people with disabilities and older adults a fair opportunity to receive life-saving treatment.
And there is good reason to fear that some hospitals will not comply with federal anti-discrimination laws. In a letter to Gov. Greg Abbott in late March, the Texas Medical Association urged the governor to order hospitals to follow triage guidelines developed by the North Texas Mass Critical Care Task Force. These guidelines, however, illegally deny care to all patients with certain conditions such as advanced dementia and untreatable neuromuscular disease without any determination of whether these conditions actually impact an individual patient’s COVID-19 prognosis. Moreover, because Texas has not issued any guidance to hospitals on how to ethically ration scarce resources, some Texas hospitals may forgo adopting formal triage policies and leave it up to beleaguered frontline doctors to decide who gets care and who does not. Unfortunately, history tells us that some of these doctors’ triage decisions may unwittingly be shaped by impermissible criteria or implicit bias against people who are older and those who have disabilities.
As COVID-19 cases continue to surge, decisions about who does and does not get lifesaving treatment should not be cloaked in secrecy, especially when these decisions may unlawfully discriminate against older adults and people with disabilities. We therefore urge all hospitals to adopt triage protocols that comply with federal guidelines and to publicize their protocols on their websites. Finally, we implore triage teams to judge our ability to benefit from treatment on a case-by-case basis and to not invoke generalized, arbitrary judgments about age or disability.
Mantel is an associate professor at the University of Houston Law Center, where she is the co-director of the Health Law & Policy Institute.
Frieden is a professor of biomedical informatics at the University of Texas Health Science Center at Houston (UTHealth). He is one of the architects of the Americans with Disabilities Act of 1990.
This op-ed originally ran in the Houston Chronicle. It is republished here with the permission of the authors.