Ethical Issues in Disaster Medicine

Figure 7.1.

Front page of the Boston Globe describing the attack at the Boston Marathon.

The bombs were designed to inflict the most damage to the runners’ legs. Because the bombing took place near the end of the marathon, the medical aid station (designed to help dehydrated runners with intravenous fluids among other things) was available to receive casualties, and ambulances were already on scene. Nonetheless, as with virtually all disasters, the first responders were the bystanders. It was somewhat unusual that at least several responders were also physicians. One such individual, a pediatric resident who was participating in the race, heard the explosions and ran toward those injured to provide assistance. She administered CPR to a severely injured woman and helped others apply pressure to the victim’s bleeding leg wounds. In addition, she treated two others who had severely injured lower extremities. In the meantime, a radiologist was tending to other runners.⁸ Also on scene, and only 10 yards from the blast, was an emergency physician from Georgia. He immediately began applying tourniquets to the victims to prevent massive blood loss, and eventually transported them to the medical aid tent (which had at least eight physician volunteers and as many as two dozen nurses) where he continued to assist others. Victims arriving at the tent were triaged, primarily to decide who should be treated immediately and who could wait. Despite the surrounding chaos, one of those present described the medical tent as “a pretty controlled environment.”⁹

The scene quickly shifted from the finish line to Boston’s level l trauma centers as ambulances and other vehicles delivered victims to the hospitals. The medical personnel also changed roles from volunteers to physicians working in their natural environments. These individuals included emergency physicians, trauma surgeons, and other specialists commonly found in hospitals.¹⁰ The results were remarkable. Of the 267 injured victims, only three died and all before reaching the hospital. Every patient who reached a hospital alive survived, including the twenty who sustained critical injuries. Medical skill is widely credited for this outcome, but luck also played a part. Several of these fortuitous factors included: 1) the bomb’s location – it detonated near the end of the race and thus near the medical aid station and waiting ambulances: 2) the time of day the explosion occurred – the area hospitals’ day shift personnel were leaving and the evening shift staff were arriving so that double staffing was present; and 3) the marathon occurred on a holiday when few surgeries were scheduled so operating rooms were mostly unoccupied and immediately available.¹⁰^,¹¹^,¹²

The planning and training of Boston EMS personnel also played a significant role. They initiated triage, rapid treatment, and the loading of patients onto ambulances. Paramedics applied tourniquets to victims based on data obtained from the military’s experiences in Iraq and Afghanistan showing that early tourniquet use dramatically reduces deaths from limb exsanguination associated with blast injuries.¹⁰^,¹¹ At the Boston EMS dispatch center, a physician assisted the loading officer with the distribution of the most critically ill patients triaged as immediate (red-tagged). The initial thirty red-tagged patients were triaged, treated, and transported within 18 minutes after the explosions.¹⁰

Attacks similar to the marathon bombing are weekly, if not daily, occurrences in Syria, Afghanistan, Iraq, and Pakistan. While not as frequent in the United States, the impact of such bombings on all populations is the same. Pakistani artist Imran Qureshi created an art installation on the roof garden at the Metropolitan Museum of Art reflecting the effects of violence. His work, titled “And How Many Rains Must Fall Before the Stains are Washed Clean,” suggests a blood-soaked street after the bodies of a bombing have been removed, but also includes images depicting the possibility of hope and new life.¹³ The work also suggests not only our common humanity, which is often emphasized in mass tragedies, but also that there are patterns in disasters that can help us prepare to better deal with them. These patterns include not just the types of injuries inflicted, but also the necessity for quick and coordinated action in response.

The context in which medical decisions are made can vary radically, but the principles of medical ethics do not vary with the situation. Religious beliefs vary from country to country, but principles of medical ethics do not. That is why such organizations as the World Medical Association can set ethical standards for physicians, and why the United Nations Educational, Scientific, and Cultural Organization could promulgate an international declaration on medical ethics and human rights. No respected authority argues for the existence of special ethics or special standards of care for hospital emergency departments, intensive care units, or operating rooms. In the same context, how can one propose that evidence exists for “special ethics” or even a special “crisis standard of care” for disasters with limited medical resources? Physicians, for example, always have an ethical obligation to their patients – to act in the patients’ best interests and with their consent. How individual patients actually define “best interests” may vary depending on the nature of their condition, especially whether their malady is likely to be fatal or cause permanent and severe disability. Ethical decisions regarding amputations call for informed consent protocols whether the decision is being made in a major Boston hospital after a terrorist attack, or with a patient trapped in the rubble left after an earthquake in Haiti.¹⁴ However, consent is sometimes impossible to obtain, as when the patient is unconscious and next of kin or prior directive are not available to help guide the physician. Such practical issues can be difficult enough in day-to-day practice, but extreme situations can make them appear overwhelming. Unless decision-making criteria are considered before a disaster strikes, ethics is unlikely to play the role it should when physicians respond.⁴

Medical Ethics and Response to Haiti Earthquake

The basic mission of the military relates to armed conflict. However, it is not unusual for governments to request that their military forces respond to natural disasters. In extreme circumstances, governments may send troops to other countries to provide assistance in disaster situations. This happened not only in response to the Asian tsunami but also to the massive Haitian earthquake in January 2010. For example, within 48 hours after the earthquake, the Israeli government dispatched a military task force of 230 people to run a field hospital. The Israelis maintain two such mobile field hospitals on constant alert to respond to attacks on Israel. However, they also will deploy one of them to other countries if the need arises. The mobile hospital contains sixty inpatient beds, four intensive care unit beds, and two operating rooms. Once established, the field hospital in Haiti treated more than 1,100 patients.¹⁵

The situation they encountered was extremely challenging. Many said they were practicing medicine in a manner more reminiscent of the 1930s or the 1950s.¹⁴ At some hospitals, conditions were primitive, with vodka being used to sterilize instruments and hacksaws to perform amputations. A Boston Globe reporter commenting on conditions about a week after the earthquake stated, “This is catastrophe medicine, where resources are scarce, time short, options few. It is a world apart from the exacting standards of the high temples of modern medicine in Boston.”¹⁴ Five physicians reflected on the ethics of their actions after returning home.¹⁵ They worried most about their triage decisions involving which patients they elected to treat and which ones were denied care at the field hospital. Their triage protocol evaluated three criteria: 1) How urgent was the patient’s condition? 2) Did they have adequate resources to meet the patient’s needs? 3) Assuming the patient was admitted and provided appropriate care, could the patient’s life be saved? The physicians acknowledged that the more time that passed since a patient’s open fracture occurred, the more likely infection and death would follow. Therefore, they considered implementing a time limit for treatment eligibility. However, they ultimately decided that “each case had to be evaluated individually.”¹⁵ Other considerations also played a role:

The potential for rehabilitation was an additional consideration in the triage process. Patients who arrived with brain injuries, paraplegia secondary to spinal injuries, or a low score on the Glasgow Coma Scale were referred to other facilities. Since we had neither a neurosurgical service nor computed tomography, we believed it would be incorrect to use our limited resources to treat patients with such a minimal chance of ultimate rehabilitation at the expense of others whom we could help.¹⁵

Those decisions were difficult, but ethically justifiable under the circumstances. More difficult to objectively evaluate, but equally understandable, was the dilemma of dealing with patients trapped for a week or more under the rubble who were finally being rescued. Even though their chances of survival were remote, the physicians “believed it would be [ethically] inappropriate to deny treatment to a patient who had survived days under the rubble before a heroic rescue, even though this policy meant potentially diverting resources from other patients with a better chance of a positive outcome.”¹⁵ This action cannot be ethically justified on the basis of a strict utilitarian principle, “the greatest good for the greatest number,” or even a more focused ethical interpretation of “save the most lives possible.” It must instead be justified by an ethics that requires individual patient evaluation, and considers the mechanism of injury and the method of rescue in deciding whether it is appropriate to deny the patient treatment.¹⁶

Such decisions could appear arbitrary. To avoid this, and to share the ethical responsibility of these judgments, the group created a system of ad hoc ethics committees. The treating physicians would present cases to a panel of three senior physicians who would then decide how to proceed. This system relieved individual doctors of the burden of determining a given person’s outcome.¹⁵ The concept of diffusing responsibility for life and death decisions has been previously described as one of the positive attributes of an ethics committee.¹⁷ Nonetheless, it should be emphasized that there is nothing “ethical” about such a committee. The Israeli committee was composed entirely of physicians and was not required to either construct an ethical algorithm or use ethical principles to make decisions. Instead, they acted much more like a prognosis committee, making decisions about appropriate medical intervention based on the likely prognosis of the patient, and the resources required to continue patient treatment.¹⁸

The Standard of Care

It is in the context of medical decision making that many commentators have become confused regarding how the standard of care applies to disasters. As both the Israeli field hospital physicians and the Boston Globe reporter make clear, the standard of care as practiced in major hospitals of developed countries cannot be directly transported and applied in the wake of a massive earthquake. Beds and medical equipment are severely limited, and some resources that are routinely available in modern hospitals, such as CT scanners and dialysis machines, simply do not exist. This has raised the question, should the law be changed to protect volunteer physicians from potential legal liability for injuries to patients that would have been prevented had they followed the standard of care under typical conditions? This question is evidence of confusion, rather than a reflection of reality. This is because all proposals to change the medical standard of care for disasters are based on a misunderstanding of the “standard of care,” both in the field and in the courtroom.¹⁹

The legal standard of care for physicians represents a formal description of a physician’s duty to provide care. It states they are required to act as a “reasonably prudent physician [with the same medical qualifications] would act in the same or similar circumstances” taking into account the resources available.²⁰ By its own terms, the standard varies with the conditions under which the physician is providing treatment, including emergency and disaster conditions.¹⁴^,²⁰^,²¹ Given this language, there is no difference between the medical standard of care and the legal standard (or duty) of care. As previously summarized, “The [legal] standard of care is flexible and fact-dependent.”²² Nor can the standard of care in any situation be seen as encompassing only one rigid method, as is illustrated by the Israeli field hospital experience. As observed by others, “at any given moment, doctors employing a wide variety of treatments and skills for identical conditions may be practicing non-negligently in the eyes of the law.”²³ Although wide variations exist in everyday medical practice patterns, no one suggests that physicians who practice in cities or regions at the extremes of these variations are guilty of medical malpractice. As such, there is no legal necessity to change or alter the standard of care in emergencies, as it changes on its own to reflect reality. The American Bar Association officially endorsed this position in a resolution adopted in August 2011 by its House of Delegates (which includes members representing both physician groups and preparedness organizations).²⁴ A report accompanying the resolution states:

It is unnecessary and unwise to remove or alter the legal duty of care owed to disaster victims by relief organizations and health care professionals. That duty is the duty to exercise the same degree of knowledge and skill that a competent practitioner would exercise in the same or similar circumstances, a time-honored principle that should not be altered, especially on the basis of confusion and speculation. Disaster victims are entitled to expect that their health care practitioners will provide them with reasonable care as the circumstances permit.²⁴

Two other issues are involved in the altered standards of care discussion: diffusing fear of liability that might inhibit physician volunteers, and resource allocation. The first is a belief that physicians will not volunteer to offer medical assistance in disasters unless they are guaranteed virtually absolute legal immunity from malpractice claims. There is some suggestion from physician surveys in the United States that they would prefer such immunity. However, examining the actual experiences of physician volunteers in disasters, “There is no evidence that immunity is needed to encourage altruistic physicians to volunteer in an emergency, nor any evidence that granting malpractice immunity would be sufficient to get unwilling physicians to volunteer.”²¹ Every new disaster simply provides additional support for this conclusion. In addition, no evidence exists that immunity was a major concern for physicians responding either to out-of-country catastrophes, like the Haiti earthquake, or to U.S. emergencies, such as the marathon bombings.⁸^,⁹^,¹⁶

Resource Allocation

What the Israeli physicians in Haiti were actually dealing with was not a modified standard of care. Rather, they were struggling with the second issue, the distinct question of resource allocation; specifically, who gets access to the limited available resources and who does not.¹⁵ Put more succinctly, how are decisions made to offer treatment to some and withhold it from others (often life and death decisions), and on what basis, when the resources are insufficient to treat everyone?

The answer offered to this question is often based on utilitarian ethics (i.e. do the greatest good for the greatest number). This proposition seems simple, but in reality, it raises as many questions as it answers. For example, what is meant by “good,” and are these short-term or long-term considerations? Does it matter if the lives saved are children or the elderly? Although many assume triage involves the application of utilitarian ethics only, in fact the history of triage also highlights its emphasis on equality and fairness.¹⁶ Born in the military of Napoleon and the French Revolution, the concept was to abandon the previous practice of treating officers first and ordinary soldiers second, by adopting new sorting or “triage” ethics that treated all wounded the same without regard to rank.²⁵

Likewise, utilitarianism was not used to resolve the primary rationing problem impacting medicine in developed countries: Who gets the next organ for transplant? When kidney dialysis machines were first used in Seattle, Washington, an anonymous screening committee was established to select who among competing candidates would receive the life-saving technology. One lay member of the committee is quoted as saying:

The choices were hard…. I remember voting against a young woman who was a known prostitute. I found I couldn’t vote for her, rather than another candidate, a young wife and mother. I also voted against a young man who, until he learned he had renal failure, had been a ne’er do well, a real playboy. He promised he would reform his character, go back to school, and so on, if only he were selected for treatment. But I felt I’d lived long enough to know that a person like that won’t really do what he was promising at the time.²⁶

Unsurprisingly, when the biases and selection criteria used by this group were exposed in a Life Magazine cover story, the committee method for patient selection was abandoned. Shortly thereafter, Congress passed a statute providing federal funding to support dialysis for everyone in renal failure. This measure served simply to postpone the difficult selection decisions among candidates for organ transplantation. The limiting resource was no longer money, but organs available for transplantation. Having abandoned the committee selection process, three other models for identifying organ recipients were examined: the market approach, the lottery approach, and what may be called the customary medical approach.²⁶

In the market approach, the next organ goes to the person who is willing to pay the most for it. While very simple to implement, it utterly fails on the criteria of fairness and equality. The lottery approach, which has been endorsed by courts in extreme cases – such as deciding who should be killed in a lifeboat so that some may live by eating the deceased – assumes fairness is the ultimate and only value. Applying this to transplant recipients, everyone has an equal chance to get the organ. On the other hand, it offends our values of efficiency and fairness. It makes no distinctions among such things as the candidates’ capacity to comply with medical care, their potential for survival with treatment, or their quality of life. Finally, the customary medical approach would permit physicians to choose their patients on the basis of medical criteria or clinical suitability. The major problem with this method is that it hides selection criteria based on social worth. It allows physicians to discriminate against individuals on the basis of poor family support, poverty, low intelligence, mental illness, criminal records, drug and alcohol addiction, age, or even geographical location, by terming these social status contraindications “medical.”²⁶^,²⁷

In organ transplantation, society has ultimately decided to use a combination of approaches to solve its rationing problem. This is because no one approach can meet all the reasonable criteria of being fair, efficient, reflective of societal values of equality, and life-affirming. To promote efficiency, for example, it is important that no one receive a transplant unless they truly desire one and are likely to obtain significant benefits measured in years of life at a reasonable level of functioning. This makes an initial evaluation based exclusively on medical criteria a reasonable screen. It determines the probability of a transplant being successful in extending years of life that are high quality. Once it is determined that the person is a good candidate to benefit from the transplant, the next screen could be a lottery – made more palatable by using a first-come first-served rationing approach.²³ This avoids making arbitrary and capricious decisions about individual social characteristics. On the other hand, there is some flexibility to allow individuals near death to advance on the list, at least as long as they are not so near death that their ability to survive the transplant with a reasonable quality of life is compromised.

Triage strategies, like organ transplant allocations, are not ultimately based solely on utilitarian ethics, but rather are tempered with ideals of equality and fairness.¹⁶ These goals are achieved in a disaster or emergency situation by making treatment priority decisions based primarily on objective medical prognosis criteria. This is why it has been argued that experienced providers are likely to be the best triage officers.²⁸ Several experts have also persuasively argued that no single or even multiple principles can adequately account for ethical allocation decisions in life and death situations. These authors suggest combining four morally relevant principles to assist with decision making: youngest-first, prognosis, lottery, and saving the most lives. The proper ethical strategy, they argue, is to “embrace the challenge of implementing a coherent multi-principle framework rather than relying on simple principles or retreating to the status quo.”²⁹ Other experts have also tried to use a more complex scheme to determine which groups should get priority for the flu vaccine at the outset of a pandemic.³⁰

Triage decisions can be seen from two points of view: deciding who gets treatment first, and deciding who will not receive care. Using a nautical analogy, when a ship is sinking and not everyone can be saved, the customary rule has been to allocate women and children first to the lifeboats, leaving the men and sailors “untreated.”³¹ Although this rule was applied by the captain of the Titanic, recent scholarship has documented that it is more of a guideline than a rule, and that more recently “every man for himself” more accurately describes what happens when a ship sinks.³² For the medical community, abandoning a hospital or nursing home in the middle of a disaster is a more commonly faced problem. In this regard, Hurricane Katrina provides a useful example.

Hurricane Katrina

In the immediate aftermath of Hurricane Katrina in the United States, decisions were made about how to evacuate the patients from one of New Orleans’s impacted hospitals, Memorial Medical Center (see Figure 7.2). This was a privately owned institution that experienced flooding in its lower floors and subsequently lost electrical power. The decision made was thought to be medical, but was based on a profound misunderstanding of a particular medical order, the do not resuscitate (DNR) order. About two dozen physicians and a few nurse managers met to decide how to evacuate the hospital’s 180 patients and an additional 55 patients on the seventh floor. The patients on the seventh floor were actually under the care of a separate company called LifeCare that leased this space. These LifeCare patients required long-term intensive nursing care.³³^,³⁴ The medical team quickly agreed that those who would suffer most from the heat should receive first priority for evacuation on rescue helicopters. These included infants in the neonatal intensive care unit, pregnant women, and critically ill adults in the ICU. Then a leading physician at the hospital suggested that all patients with DNR orders should go last.