Rationing Ventilators: Pandemic Myths That Deserve to Die.

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As New York City’s intensive care beds rapidly fill up with patients severely ill with COVID-19, the rationing of ventilators has become a major topic of conversation. Discussion is all to the good, but discussion should be informed by facts and not myths. Here are some of the myths, many old ones, that have resurfaced and that should be put to rest.

Myth number one: In a pandemic, physicians must decide who lives and who dies.

In his classic history of the 1918 flu pandemic, The Great Influenza, John Barry observes: “The virus itself, more than any treatment provided, determined who lived and who died.” Physicians didn’t cause the pandemic, and they are not expected (or permitted) to pick who will live and who will die based on any but medically relevant criteria. We don’t expect our physicians to be heroes (although some are) or saints (although some are as well), but we rightly expect them to act as healers, doing the best they can under extreme circumstances, with the consent of their patients.

Myth number two: Physicians have to worry about malpractice lawsuits for not giving all of their patients the same access to ventilators because the legal duty of care requires that all patients be treated the same.

Wrong. The legal (and medical) standard of care stays the same in a pandemic as it is in routine practice of medicine: physicians must do what a reasonably prudent physician [in the same specialty] in the same or similar circumstances would do, taking into account the resources available. These resources include not only medical equipment such as ventilators, CAT scans, and ICU beds, but also personal protective equipment such as masks and gowns. While the legal duty of care is always the same, what it requires of physicians in specific cases will evolve as we all learn more about the natural course of COVID-19 and which treatments work better than others. Physicians should not be driven or inhibited by legal concerns.

Myth number three: Informed consent does not matter in a pandemic.

Wrong. Informed consent is the cornerstone of the physician-patient relationship, and patients cannot be legally or ethically treated without their consent (if they are capable of giving it), or the consent of their next of kin or healthcare proxy (if the patient is incapable of giving it). There are some rare emergencies where the patient is unconscious and no surrogate is available when the rule changes to: in an emergency, treat first and ask legal questions later. That is accepted as good medicine and good law. It also means that we should do whatever we can to encourage all potential patients (that includes all of us) to designate a trusted friend or relative to be our “healthcare agent,” with the authority to make healthcare decisions for us when we are not able to make them ourselves. This could even be seen as a new ethical responsibility in the time of pandemic.

Myth number four: We need special legal rules for ventilator removal.

This is an old legal myth. It formed the basis of the famous 1976 Karen Quinlan (a young woman in a permanent coma) case in which her physicians argued that it would be unethical to remove her from the ventilator because that would “kill her.” Ventilators seem different from other medical interventions because removing a ventilator looks like you are killing the patient because the patient needs the ventilator to continue to breathe. In fact, as both courts and ethicists have made clear, there is no ethical or legal difference between not starting a ventilator in the first place and terminating its use. Both actions should be based on medical indications (and contraindications) and the informed consent of the patient or the patient’s surrogate.

In the Quinlan case, for example, the court determined that the next of kin could make the decision to end ventilator support on the basis that this decision would likely be what Karen herself would want. In 1990, in the case of Nancy Cruzan, the United States Supreme Court dispelled any doubt that patients have a right to refuse any lifesaving medical intervention, including ventilators and tube feeding. There are also circumstances in which physicians can discontinue the use of a ventilator consistent with law and medical ethics: when the ventilator is no longer providing any reasonable medical benefit, and even possible harm, it can and should be discontinued. Think, for example, about CPR and why physicians can stop their efforts to restart the heart even though the patient’s heart cannot continue to beat on its own. Analogous to CPR, ventilator use is done as a “trial” to see if it can benefit the patient. It should be explained to the patient and the patient’s family at or before intubation that ventilator support will be discontinued when it is not beneficial to the patient. Of course, the patient and family should be informed of the physician’s plan to discontinue the ventilator so they can dispute it or get a second opinion.

Myth number five: When the choice is between providing the last ventilator to an 80-year-old or a 40-year-old, the 40-year-old should always get it.

No. This is age discrimination and irrelevant to ethical decision-making. While it seems more acceptable than discriminating on the basis of gender, race, religion, national origin, or other clearly unacceptable prejudices, it is just as arbitrary. It would seem fair to flip a coin, but although this promotes equality, it seems too callous and impersonal when an identifiable human life is at stake. The medical status of the patient is the primary determinant of what interventions are indicated.

Myth number six: Hospitals can’t coordinate care with each other.

This is technically a myth in that it is possible for hospitals to work together—but in reality coordination is unusual. One major lesson from the COVID-19 pandemic already is that there is no American healthcare “system” and that many of its flaws only become evident in a crisis. Hospitals should be able to share medical equipment (e.g., when one has more than it needs, and the other has a shortage), and states should allocate medical equipment to hospitals based on equity rather than equality. New York Governor Andrew Cuomo has announced that this is what he will do: move ventilators from hospitals that have more than they need to hospitals with a shortage. This allocation may, itself, prevent explicit rationing.

George J. Annas is William Fairfield Warren Distinguished Professor of health law, ethics, and human rights, and director of the Center for Health Law, Ethics & Human Rights. He is also faculty at the School of Law professor and School of Medicine.