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Ethical Resource Allocation 8 A doctor calling for patients in a hospital waiting room. Cultura Limited/SuperStock Learning Objectives After reading this chapter, you should be able to Understand the need to make ethically defensible rationing decisions in health care. Analyze different methods of allocating health care resources. Describe the steps decision makers must take to achieve moral authority through procedural justice. Identify the ethical basis for setting utilization limits. Understand the concept of medical futility. Introduction "How can a society or health plan meet population health care needs fairly under resource limitations?" (Daniels, 2008, p. vii). This compelling and controversial question gives rise both to health policy discussions and political debates. As enactment and implementation of the Affordable Care Act (ACA) has proceeded, public and political discourse has become heated whenever allocating scarce resources—negatively labeled health care rationing— is discussed. One common allegation early in the debates over the ACA was that it would severely impede Americans' freedom of choice in health care by empowering expert panels (rather than treating clinicians) to make decisions about the care individuals could receive. A prominent political candidate went so far as to suggest that "death panels" would be set up by the government to determine "whether [the elderly and disabled] are worthy of healthcare" (Viebek, 2012, para. 9), a sentiment that severely influenced the public's view of the ACA. Much has changed since these early debates, including the repeal of the ACA's Independent Payment Advisory Board—the aforementioned "panel of experts"—as well as Americans' public opinion of the law (see Figure 8.1). Figure 8.1: The public's view on the ACA "Given what you know about the health reform law, do you have a generally favorable or generally unfavorable opinion of it?" This was the question asked during an April 2018 health tracking poll collected by the Kaiser Family Foundation. Although the law has been a divisive issue since its enactment, its approval rating has increased since January 2017. Based on a Kaiser Family Foundation Health Tracking poll, this line graph shows that reviews of the ACA reached roughly 50% in 2017. Source: The Kaiser Family Foundation. (2018). The public's views on the ACA. Licensed under CC BY-NC-ND 4.0. Retrieved from https://www.kff.org/interactive/kaiser-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable--Unfavorable--Don't%2520Know&total. The United States' health system under the ACA does, in fact, ration health care. However, this phenomenon is not new or the result of a political agenda. Health care rationing, or the allocation of scarce resources, is an inevitable feature of modern health care systems all over the world. Whenever the need or demand for any product or service outstrips its availability or supply, some form of rationing will occur. In recent decades, the most common rationing mechanism in U.S. health care has been economic: Those with the means or the third-party coverage to afford care went to the front of the queue, while poor and uninsured Americans were less likely to receive needed care. In areas other than health care, this aspect of modern civilization is not usually morally troubling or tragic. Consider the difference between someone wanting a unique work of art and someone who is an organ transplant candidate. Both are seeking scarce and valuable "products" for which demand is greater than supply. Yet one is a luxury, while the other may save someone's life. The ethical allocation of health care resources is likely to become even more important in the near future because two phenomena will increase demand for health care services. First, the baby boomer generation, those born between 1946 and 1964, will turn 65 at the rate of 10,000 per day for the next 11 years (Pew Research Center, 2010). This enormous cohort, which now constitutes about one fourth of the entire population, will suffer from age-related health issues in growing numbers. Because baby boomers will be eligible for Medicare at age 65, they will place additional stress on a health care–funding mechanism that is often characterized by fiscal distress. (Figure 8.2 shows the projected population growth of persons 65 and older.) Figure 8.2: Elderly population growth in the United States, 1960 versus 2060 Baby boomers are aging, which means the population of senior citizens in the United States is growing exponentially. This means the health care needs for the elderly will also increase significantly. Is the United States prepared to handle a shift in resources? A chart showing the trend in population growth of the elderly in the United States. Source: United States Census Bureau. (2018). From pyramid to pillar: A century of change, population of the U.S. Retrieved from https://www.census.gov/library/visualizations/2018/comm/century-of-change.html. The second increase in demand for health care services stems from changes introduced by the ACA, which, from 2010 to 2016, increased third-party coverage through Medicaid and commercial health insurance by nearly 22 million individuals (DeNavas-Walt, Proctor, & Smith, 2011; Barnett & Berchick, 2017). This expansion of coverage in turn increases demand and competition for services. Health care resource allocation must meet ethical standards and be perceived as equitable in order to have both moral authority and public legitimacy. Health care administrators, who are increasingly called upon to justify their decisions, will benefit from pausing to consider the factors that meet both of these criteria as demand exceeds both supply and the nation's willingness to dedicate additional resources to health care. In this chapter we will take a close look at ethical questions in resource management and allocation. We will analyze some of the difficult decisions health care administrators face, and we will consider what tools or strategies are ethically and legally required when setting priorities. We will also look at lessons from history that might help prevent some of the problems that befall this aspect of health care management. 8.1 The Moral Challenge of Resource Allocation A medical professional transporting a human organ in a cooler. Aphp-St Antoine-Garo/Phanie/SuperStock Organ transplants can pose serious ethical dilemmas for health care workers. Resource allocation in health care has been the subject of extensive research and expertise. Resource allocation policy analysis frequently investigates organ transplants (Beauchamp & Childress, 2009). Although organ allocation decisions and policies are logical and reasonable and are not intended to discriminate against any individuals in need of this precious resource, American organ transplantation guidelines have ethically problematic effects. For example, a patient who lives within the allowable travel time for two transplant centers may be waitlisted at both as long as the individual fulfills the other requirements. A patient who lives elsewhere, however, may only have access to one waitlist (Beauchamp & Childress, 2009). Conversely, someone who has access to a private jet that is available at a moment's notice may qualify for the organ lists of numerous transplant centers, as did billionaire Steve Jobs when he received a liver transplant in Memphis, Tennessee, despite living more than 2,000 miles away in Palo Alto, California (Grady & Meier, 2009). Apart from the potential consequences of not receiving scarce health care resources, what makes the prudent and equitable allocation of such resources a moral imperative? The objectives of medicine, along with the special moral and human importance of health and health care, make the health care leader's attention to ethical stewardship of resources a fundamental priority, both for the good of patients and health care employees (see Case Study: A Difficult Choice). Case Study: A Difficult Choice In 2004, South Florida was hit with four major hurricanes in five weeks. One particular area was ground zero for two of those hurricanes, happening only three weeks apart, and one of its local hospitals suffered such major damage that it had to be closed for two and a half months. Unfortunately, this shutdown occurred during the end of the hospital organization's fiscal year in September and the beginning of the next fiscal year in October. Many times when an organization creates departmental budgets, they must make changes to accommodate unforeseeable circumstances. In July of 2005, the hospital had to deal with the financial consequences of the unforeseen two-month shutdown from the previous year; every manager of every department was asked to make budget cuts in order to ensure that the overall budget did not suffer at the end of the fiscal year. Although the cuts themselves would not directly affect the hospital's patients, if the hospital was unable to meet its overall budget for the year, the hospital might have to halt operations, leaving many patients without access to care. In most hospitals, there are departments that make money for the hospital (called "revenue- producing") and departments that do not make money for the hospital (called "nonrevenue- producing"). When budgets need adjusting, the revenue-producing departments are often able to apply more creative methods to increase revenue, such as providing more screenings to patients or negotiating vendor discounts for products and services. However, non-revenue-producing departments do not have this flexibility, so it can be a more difficult process to decide how to cut their budgets. At this particular South Florida hospital, the manager of a non-revenue-producing department had a budget of $500,000 for the year. The manager was asked to cut this budget by $50,000 as part of the overall budget cuts. The problem was that 75% of the budget went to paying the salaries of the manager and four other employees. This left only $125,000 to pay for any of the department's other needs. Since it was nearing the end of the fiscal year, much of the budget had already been paid out, so the manager tried cutting out supply purchases for the year, equipment maintenance, and several of the smaller items on the budget. However, the cuts did not meet the $50,000 requirement. It was becoming painfully obvious to the manager that she was going to have to consider terminating one of her four employees. The manager did not feel it was morally right to terminate one the employees, though, especially after they had all struggled financially making house repairs after the storms. Therefore, the manager recommended that her own salary be removed from the budget, effectively declaring her resignation, and suggested that one of the four employees become a supervisor so the department could remain intact in order to perform its necessary duties. Before reading on, consider the following questions: Can you think of anything else the manager could have done instead of offering to resign? Should the hospital accept the manager's recommendation? Why or why not? Is it ethical for the revenue-producing departments to recommend patients for additional services in order to meet their budget? Continue reading to find out what the hospital decided in this case. The manager's proposal was considered unprecedented budget reasoning, and the hospital's CEO and the manager's direct supervisor refused to accept her resignation. Instead, they made adjustments in other areas to ensure that this department would stay intact for the good of the organization. Fundamental Moral Questions in Resource Allocation How can leaders make ethically defensible resource allocation decisions while honoring moral obligations to patients, organizations, and communities? To determine the underlying obligations for just resource allocation, two ethical questions must be considered when deciding how to distribute services and benefits in health care organizations: Procedural justice: What do ethics require of the processes and policies that help determine resource allocation? Distributive justice: When are health and health care inequalities unjust and in need of correction? Both questions address the issue of setting priorities: How do we align priorities with the ultimate ends of medicine as well as democratic deliberation about values? We will examine each of these questions in the sections that follow. Stop and Clarify: Rationing The term rationing is often used to describe rules that unfairly or unjustly limit access to a resource that potential recipients deserve and to which they would otherwise be entitled. Technically, however, rationing will occur whenever there is a product, benefit, or service that is limited and for which demand outstrips supply. Even simple methods for allocating a scarce resource among those who want it—such as a first-come, first-served policy—are rationing processes, since they determine who will receive the resource and who will not. Ideally, system-wide rationing, also called macroallocation, should be transparent and explicit in order to avoid allegations of injustice or capriciousness. Historically, however, Americans have been reluctant to have explicit discussions of "rationing," particularly in health care (Beauchamp & Childress, 2009). Health care rationing typically occurs case by case, based on the judgment of the treating physician; this type of rationing is also called microallocation. 8.2 Procedural Justice in Resource Allocation Decisions Doctors treating a patient in an emergency room. Blend Images/SuperStock Procedures must be in place to ensure the most ethical distribution of limited health care resources. While there is a clear moral obligation for the leaders of health care organizations to meet the health care needs of patients and communities, this moral duty cannot, in many instances, be met perfectly. It is often impossible to meet all of a population's genuine health needs, because resources are too scarce or too expensive. The moral question then becomes "How can we meet the health care needs of our patients and communities fairly and justly when we cannot meet them all?" (Daniels, 2008, p. 13). Stop and Clarify: Triage In clinical settings, triage refers to "a process of developing and using criteria for prioritization" (Beauchamp & Childress, 2009, p. 279). Medical triage weighs clinical considerations, in contrast with rationing, which addresses social issues. For example, hospital emergency departments do not treat patients on a firstcome, first-served basis, but rather give priority to those in greatest need of immediate care. Another example of triage occurs in battlefield medicine, where resources are traditionally focused on those who are likely to survive if they receive timely care, rather than those with the most serious wounds (Beauchamp & Childress, 2009). Chapter 1 explained that for the justice principle's requirements to be met, any formal procedures or mechanisms by which a person attempts to resolve dilemmas must themselves be fair and equitable. Thus, health care administrators have a duty to craft resource allocation policies and procedures that maximize the chances of fair and equitable treatment. It is important to note, however, that neither procedural nor distributive justice necessarily means that everyone must be treated the same. Modern conceptions of justice require people in similar situations to be treated similarly and people in different situations to be treated differently. This means inequality is sometimes the fair and just outcome of ethical resource allocation. For example, the egalitarian moral philosopher John Rawls (1971) argued that it would be fair to construct a system that unequally distributes goods, but only if by doing so the least well-off (the poor, for example) would benefit disproportionately. Ethics of Transplants Issues arise when several patients seek transplants for their failing organs. Hospital committees discuss whether these patients are suitable for transplants and go over the ethical issues behind their decisions. Critical Thinking Questions Who decides which patients should receive organ transplants? Who do you think should make these decisions What issues arise when the number of patients who need an organ transplant exceeds the number of organs avaialble? Another reason just processes are fundamental to health care rationing is that those who make such rules and impose them on others are held accountable by their community and patient population. Next, we will examine methods for establishing fair processes and determining who holds the moral authority. Crafting Fair Processes The especially difficult health care resource allocation decisions arise when we can meet one person's health care needs only if we do not meet the needs of another person (Daniels, 2008). Some will argue that health care resource rationing decisions are best left to the expertise of health care practitioners, policy experts, and economists. Questions of medical necessity, futility, and cost–benefit analysis are empirical and the province of experts. However, while enlisting health experts is necessary for a just and equitable resource allocation policy, it may not be sufficient. Relying solely on health care professionals can lead to the development of rules that are unresponsive to the needs and values of communities that will be most directly affected. For these reasons, many commentators have agreed that any health care rationing scheme will need to earn its moral legitimacy from a democratic and deliberative process in which those affected by the limiting rules will have their voices heard along with the experts. Four approaches to resource allocation, including allocation by expert panels, community consensus, lottery, and court order, are presented in the feature box Case Studies in Resource Allocation. This list does not exhaust all the possibilities, but it illustrates the wide variation in approaches to procedural justice found in contemporary U.S. health care. Case Studies in Resource Allocation A. Allocation by expert panels versus community consensus Allocation by expert panels In the 1980s, Oregon was among the many states where tax revenue lagged behind expenses. Increasing numbers of Oregonians sought the health coverage provided by the state through its Medicaid program, and there was a growing public debate about how to make the best use of limited state resources for health care (Crawshaw, Garland, Hines, & Lobitz, 1985). As in most states, Medicaid was the second most expensive line item in Oregon's state budget (Zoloth, 1999). In early 1987, faced with a large budget shortfall, Oregon's state legislature chose to reduce or eliminate coverage for services that, in the findings of an expert panel, were either too costly for the amount of benefit received or had very little benefit regardless of the cost. One of the first benefits to be cut by the new plan was organ and tissue transplants. Coby Howard, the 7-year-old son of an unemployed Oregon woman, was receiving the standard treatment for his lymphocytic leukemia in 1987 when his illness worsened. The only treatment with any prospect of prolonging Coby's life was a bone marrow transplant. Since Coby was enrolled in Medicaid, the new allocation policies meant that the transplant was no longer covered, and his family could not afford the $100,000 cost. Media coverage brought the nation images of the adorable 7-year-old asking for money on a street corner to cover the operation, causing a public outcry against what was characterized as a callous bureaucratic policy. The media attention helped raise money for Coby's bone marrow transplant, but contributions only amounted to $85,000 by the time Coby died (Zoloth, 1999). Press reports of other Medicaid patients who were denied benefits raised more political rancor. Although the state legislature attempted more expert and professionally led Medicaid reforms to address the furor that the Coby Howard case had stirred, there remained enormous public distrust for policy makers' apparent "elitism, provider subjectivity, and political exclusion," and their "closed door decision-making" (Zoloth, 1999, p. 34). Allocation by community consensus Oregon's legislature decided to pay more attention to grassroots public discourse in order to articulate Oregonians' health care values and benefit priorities. The resulting democratic deliberation articulated principles for resource allocation (Oberlander, Marmot, & Jacobs, 2001). Purpose of Health Services: The responsibility of government in providing health care resources is to improve the overall quality of life of people by acting within the limits of available financial and other resources. Overall quality of life is a result of many factors, health being only one of these. Others include economic, political, cultural, environmental, aesthetic, and spiritual aspects of a person's existence. Health-related quality of life includes physical, mental, social, cognitive, and self-care functions, as well as a perception of pain and sense of well-being. Allocations for health care have a claim on government resources only to the extent that no alternative use of these resources would produce a greater increase in the overall quality of life of people. Health care activities should be undertaken to increase the length of life, the healthrelated quality of life, or both, during a lifespan. Quality of life should be one of the ethical standards when allocating health care resources involving insurance or government funds. Why Priorities Need to be Set Every person is entitled to receive adequate health care. It is necessary to set priorities in health care, so long as health care demands and needs exceed society's capacity, or willingness, to pay for them. Thus, an "adequate" level of care may be something less than "optimal" care. How to Set Health Priorities Setting priorities and allocating resources in health care should be done explicitly and openly, taking careful account of the values of a broad spectrum of the Oregon populace. Value judgments should be obtained in such a way that the needs and concerns of minority populations are not undervalued. Both efficiency and equity should be considered in allocating health care resources. Efficiency means that the greatest amount of appropriate and effective health benefits for the greatest amount of persons are provided with a given amount of money. Equity means that all persons have an equal opportunity to receive available health services. Allocation of health resources should be based, in part, on a scale of public attitudes that quantifies the tradeoff between length of life and quality of life. In general, a high priority for health care activity is one where the personal and social health benefits:costs ratio is high. The values of the general public should guide planning decisions that affect the allocation of health care resources. As a rule, choices among available alternative treatments should be made by the patient, in consultation with health care providers. Planning or policy decisions in health care should rest on value judgments made by the general public and those who represent the public and on factual judgments made by appropriate experts. Private decision makers, including third-party payers and health care providers, have a responsibility to oversee the allocation of health care resources to assure their use is consistent with the values of the general public. (Quinn, 2000, p. 361–362) After broad discussions that included detailed cost-benefit analyses, a final list prioritizing Medicaid benefits was given to the Oregon legislature in 1991. The democratically derived list included 709 different health care benefits ranked in order of perceived value. The process after that was relatively simple: Starting with number one on the list, the projected cost of each benefit was deducted from the state's Medicaid budget until funding ran out. The first 567 priorities on the citizens' list became the new Oregon Medicaid benefit package, and the cut-off point in the list of services was adjusted to fit the Medicaid budget in each budget cycle (Oberlander et al., 2001). This unusual combination of community consensus and technical expertise stabilized the political environment for Oregon's health system but did not achieve cost savings and proved difficult to enforce. Discussion Questions What lessons does the Oregon Medicaid benefit struggle of the 1980s and 1990s provide health care organization leaders today? What ethical protections are provided by a public, transparent, deliberative process for health policy making? On a spectrum between strictly utilitarian cost-benefit analyses on the one hand and population surveys of what people value and desire on the other, where do you think health administrators should make policy (See Figure 8.3)? Elderly population growth in the United States, 1960 versus 2060 A double-sided arrow illustrating the continuum between utilitarian, economic analysis and democratic, value preference. B. Two other approaches: Allocation by lottery and by court order Allocation by lottery Oregon continues to be an exception among U.S. states in its willingness to make health care allocation decisions explicit. In 2008, funds became available to make Medicaid coverage available to an additional 10,000 Oregonians, but 90,000 were potentially eligible, so the state again faced a wrenching decision (Baicker et al., 2013). The Oregon Health Authority decided to make Medicaid coverage available through a random drawing that determined who was eligible. The resulting natural experiment has garnered great interest in the health policy community (Baicker et al., 2013), but the extent to which Oregonians feel that it represents a fair approach to the allocation of scarce resources is far from clear. Allocation by court order A recent example of an allocation mechanism comes from the 2013 case of Sarah Murnaghan, a 10-year-old cystic fibrosis patient awaiting a lung transplant. At the time of her initial eligibility for the list of prospective transplant patients, the national organization responsible for transplant policy did not make children younger than 12 eligible for the much larger pool of potential transplants available to adults (Goodnough, 2013). Her family, along with that of an 11-year-old cystic fibrosis patient, brought a suit against the Department of Health and Human Services and were successful: On June 10, 2013, a federal judge ordered that the two children be placed on the adult waiting list (Ladin & Hanto, 2013). The national policy-making organization then voted to allow expert review of children under 12 who were waiting for lung transplants to determine whether they might be eligible for the adult waiting list. While clinical specialists voiced concern that nonmedical intervention was dictating policy, the expert review found Sarah to be a candidate for the adult waiting list, and she received a double lung transplant (Ladin & Hanto, 2013). Discussion Questions What ethical principles support the use of a lottery to determine access to scarce health care resources? What principles would go against using a lottery? How would you evaluate the use of a court opinion to determine health care resource allocation? When do you think it would be appropriate? 8.3 Distributive Justice in Resource Allocation Decisions The processes for developing resource allocation policies must carry moral authority, but the policies themselves are also assessed to determine whether they follow the ethical principles of distributive justice. The concept behind distributive justice is that individuals receive the appropriate type and quantity of goods and benefits (Beauchamp & Childress, 2009; Rawls, 1971). This topic is among the most controversial in U.S. policy and politics because of the conflict between principles of free market capitalism and social justice. In the 2012 presidential campaign, for example, candidates disagreed openly on whether more affluent Americans should provide financial support for fellow citizens in need (Leonhardt, 2010). Beauchamp and Childress (2009) list six principles that could serve as guidance for meeting the criteria of distributive justice: To each person an equal share; To each person according to need; To each person according to effort; To each person according to contribution; To each person according to merit; To each person according to free-market exchanges. (p. 243) While these principles seem radically incompatible, we can find examples of each in relevant sectors. Social welfare benefits are distributed on the basis of need, employment options on the basis of merit, and public education on an equal basis; many medical goods are exchanged in the free market, hourly wage employees are rewarded for effort, and many retirement benefits reflect employee contributions. Setting Limits To allocate health care resources in keeping with ethical principles of distributive justice, health care leaders must acknowledge the need to set limits. The combination of high costs and escalating demand means that neither government-funded programs nor employersponsored health care benefits can extend to every possible treatment. Americans often resist acknowledging these facts for reasons that include concern that they will be denied essential, lifesaving care. In countries with strong traditions of social solidarity and universal health care coverage, a reasonable level of consensus mitigates the concern that one person will be denied care that another person would receive, for example, because he or she can afford it. In the United States, there is no assurance that if one person agrees to do without a health care service, the savings will accrue to the benefit of someone in greater need. The savings are, in fact, likely to benefit the owners or executives of the health plan, particularly in the case of publicly traded companies. Determining Medical Futility The need to set limits in health care is not just a function of the practical need to choose who will receive access to resources when demand exceeds supply. Limit setting is also complicated by a fundamental tension between two competing ethical values in medicine: "1) the desire to achieve a valuable end, and 2) the desire not to waste time or resources trying to accomplish something that cannot be accomplished" (Trotter, 2007, p. 8). These two values clash in cases of what is sometimes referred to as "medical futility," a term that, as Beauchamp and Childress (2009) note, has been used in such varying circumstances as to become nearly meaningless. They suggest, instead, the term "clinically nonbeneficial treatment" (Beauchamp & Childress, 2009, p. 167), but even that term implies a determination of clinical benefit that may not be clear if the treatment has not been administered. A patient in an MRI machine. Creatas/Jupiterimages/Getty/Thinkstock Setting limits in health care is important to prevent care from extending past the point of effectiveness and to prevent unnecessary testing and procedures. Some of the most widely discussed ethical and legal cases in health care have revolved around medical futility (the near certainty that an action taken in pursuit of a health care goal will fail)—particularly around how to interpret its basic concept: "These debates generally hinge on one or both of the following: 1) parties in the debate disagree about the goal or goals that should serve as a standard for determinations of futility; or 2) parties in the debate disagree about what counts as 'virtual certainty' that an action will fail to achieve a goal" (Trotter, 1999, p. 528). Orienting the practice of health care leadership to the goals of medicine can help to clarify and resolve practical, ethical issues. Determining the Legitimacy of Treatment Goals Difficult questions regarding the futility of a clinical intervention may be clarified with a consensus regarding the legitimate goals of medicine. For example, a treatment goal that is not aligned with the objectives of health care may be illegitimate. Medical futility cases can garner extensive media coverage and give rise to heated political debate, as in the case of Terri Schiavo. Whether to continue or cease Schiavo's artificial nutrition and hydration following the determination that she was in a persistent vegetative state raised issues regarding principles such as reverence for life, the credibility of medical diagnosis, and patients' wishes regarding life-prolonging treatment (Veatch, 2005). Conflicts about medical futility may also arise in banal cases; for example, those in which a patient is seeking an excuse for a day away from work or a clinician performs an unnecessary diagnostic procedure to help defray the cost of the diagnostic equipment. Apart from the question of futility, some care that is inconsistent with the ethical goals of medical practice can have grave consequences. Several instances of repeated unnecessary heart surgeries, for example, have come to light in recent years, imposing not only illegitimate costs but serious risk of health consequences on the surgeons' unfortunate patients (Abelson & Cresswell, 2012). Other famous cases of health care interventions at odds with the legitimate goals of medicine include the notorious Tuskegee syphilis study, the U.S. experiments on Guatemalans (McNeil, 2010), and the universally condemned actions of Nazi doctors during World War II (Beauchamp & Childress, 2009). Measuring the Likelihood of Treatment Success In other instances, disagreement over a proposed treatment's medical futility is not related to the legitimacy of the goal; rather, the disagreement centers on how to measure virtual certainty that the treatment will fail to achieve its (medically appropriate) goal. If a proposed treatment has a 50% chance of working, should it be implemented? In such a case, many people would feel uncertain about taking the action and would want to know more about the proposed treatment. What if the chances of a proposed treatment's success were 1 in 100? Most would agree that a 99% probability of failure would more than adequately fulfill the certainty that an action will fail at achieving the intended goal criterion for medical futility. In such a case, would ethics require that medical treatment be withheld? The sheer mathematical probability, while helpful in determining whether the medical intervention should be undertaken, will not conclusively determine medical futility. In fact, while a 99% risk of failure in attaining the goal may be determinative in some cases, in others it may be a risk a person is willing to take. Other Factors Affecting Medical Futility In addition to statistical probability, two other factors help medical practitioners make ethically prudent decisions about medical futility. One is the value of the goal to be achieved. Some goals are demonstrably weightier than others. For example, while Coby Howard's medical prospects were bleak whether or not he received the bone marrow transplant, this last chance for survival was widely viewed as medically necessary despite the low chances for its success. There may be instances, however, when a treatment such as Coby's is set aside in favor of other important competing interests, including the health and lives of other patients who might benefit from treatments that Medicaid would be able to cover if it refused a lowchance transplant. Despite the priceless nature of potentially lifesaving treatment, other factors come into play when making difficult health care–rationing decisions. A second factor relevant to decisions of medical futility is the cost, time, and resources necessary to undertake the action. While economics related to a proposed treatment should not determine whether the treatment is medically futile, neither should they be irrelevant. Resources dedicated to one intervention are not available for another, so the effect is the same whether the choice is financial or categorical (Beauchamp & Childress, 2009). Ethics in Focus: Medical Futility According to Griffin Trotter, a physician and ethicist, treatment is medically futile whenever there is certainty that it will fail to achieve its goal for the patient (as cited in Kasman, 2004). Trotter states that the conditions necessary for there to be medical futility are: There is a goal; There is an action or activity aimed at achieving this goal; and There is virtual certainty that the action will fail. (As cited in Kasman, 2004) Although the definition of medical futility is straightforward, many of the most vehement debates in medical ethics revolve around the interpretations of this concept. According to Trotter, this is for at least two reasons. First, there is a disagreement about what the goal or goals should be for certain controversial treatments. For example, some will argue that prolonging the life of someone in a permanent coma is not one of the legitimate goals of medicine and is perhaps even morally and professionally wrong. For others however, this is seen as perfectly within the legitimate ends of medical practice and perhaps even the correct moral and professional action to take. The second disagreement is about what counts as "virtual certainty" for purposes of determining futility. For example, those who tend to have a "glass is half full" outlook will always choose the 1% chance for success, and therefore there is no "virtual certainty" that treatment will fail. Meanwhile, for people who have a "glass is half empty" outlook, a 99% probability of failure is considered "virtually certain" and thus is determined to be a futile undertaking. The following interaction illustrates some of the scenarios health care providers must consider when trying to ethically allocate resources. Chapter Highlights This chapter dealt with the often difficult and sometimes tragic decisions that must be made in health care administration due to limited resources for which demand exceeds supply. Policy makers have been heavily criticized for making rationing decisions behind closed doors without accountability. Policies and decisions made without the input of the population they are intended to serve run the risk of being unresponsive to the needs of the people and therefore illegitimate. How can health care administrators and policy makers enhance the contribution of democratic, deliberative processes for ethically defensible health care rationing? How can health care leaders make ethically defensible resource allocation decisions while observing their moral obligations to patients, their organizations, and their communities? How do procedural justice, distributive justice, and priority setting help answer the fundamental question of moral stewardship in resource allocation? How can limits be set for the use of scarce resources in medicine, particularly with regard to the thorny issue of medical futility? Case Study: Resource Allocation in an Influenza Outbreak Reports of influenza outbreaks in Asia have been increasing for the past six weeks. It is now late December. Influenza outbreaks have been reported throughout the United States, including states near yours. Anytown, where you are a health system manager, is seeing what may be the early effects of an outbreak. For the purposes of this case study, we will assume there are two types of drugs that are effective in treating or preventing influenza: vaccines, which provide immunity in most cases but must be administered before the individual is exposed to the disease, and antivirals, which reduce the severity and duration of flu symptoms when given to sick patients. Your health system is reporting increases in emergency and physician office visits for symptoms consistent with influenza. School and business absences begin to rise. Health care, law enforcement, and other emergency personnel are calling in sick. Health system staff members with duties in critical areas such as information technology, direct patient care, and the clinical laboratory are asking for time off to care for ill family members. The threat of an epidemic could not come at a worse time for your health system. State appropriations have been cut in response to a two-year revenue shortfall, and a growing immigrant population is placing new demands on your primary care clinic. Medicaid managed care organizations have approached you yet again with the threat of reducing your clinic reimbursement rates. In response to media accounts of illness, there is a sharp increase in local demand for vaccination, but it will not be available for at least another month. Even then, the vaccine distribution protocol indicates that it will be given first to priority groups until enough is available for the entire population. Several of your colleagues have expressed concern about being sued by those who are denied immediate access to vaccines. Local pharmacies have run out of antiviral medications, and stories are circulating that physicians have been prescribing antiviral medications more broadly. Anytown has received a small allocation of antivirals from a Centers for Disease Control and Prevention stockpile distributed by the state Department for Public Health, and public concern over the way in which the antiviral medications will be used is increasing. (Based in part on California Department of Health Services, Pandemic Influenza and Public Health Law Training, version 1.2 [June 26, 2006].) How would you use ethical principles to identify issues that you as a health system manager must address? For example: How would you respond to someone who thought the only fair way to allocate antiviral medications was to give them out to the people who requested them on a firstcome, first-served basis? Of the four ways of allocating medical resources that are discussed in this chapter (expert, consensus, lottery, and judicial), which do you think is best suited to the type of emergency described in the case study, and why? What ethical principles would support a decision to share all available information with the media as soon as possible? What principles would suggest withholding some information, at least in the short term? Think of another kind of emergency where the supply of resources is greater than the demand, such as a natural disaster. What do you know about how those resources are allocated and who is making the relevant decisions? Critical Thinking and Discussion Questions The Affordable Care Act and the increase in Medicare enrollment caused by the aging baby boomer generation are likely to continue increasing demand for health care resources substantially in the near future. What procedures for policy making would you recommend to develop rules for access to health care? Does one of the four examples in this chapter (expert panels, community consensus, lottery, or court order) appear to be a good fit, or would you suggest something else? Defend your choice of policy-making procedure. Having selected a procedure for policy making, what factors would you recommend taking into consideration to make decisions that are consistent with distributive justice? Should these factors be articulated explicitly to the public so people know what level of access to expect? Should they be shared only with health care providers so they can apply and discuss them with individual patients? Is there another option that balances the interests of the public with those of individual patients? How would you weigh the following factors when ethically deciding how to fund a type of treatment: (a) the cost benefit or cost effectiveness; (b) the actual cost of treatment (for example, a very effective treatment that is extremely expensive); (c) the likelihood that the treatment will succeed with most patients; (d) the likelihood it will succeed with a small group of patients; (e) the needs of patients who have experienced significant social or economic disadvantage; and (f) the political popularity of the treatment? Your health system serves a community in which there is a high rate of diabetes among the low-income population. If you increase services for diabetes education, you will generate a net financial loss because such services are not reimbursed adequately. What ethical factors would enter into your recommendation about increasing diabetes education? Should Americans who have the resources to enroll in multiple organ transplant waiting lists (which means they can get to the site very quickly) be allowed to do so? Does it matter whether there is a shortage of suitable transplant candidates in a region? What ethical principles would you apply to this analysis? The neurosurgery clinic that you manage has a long waiting list for nonurgent appointments. The husband of your hospital's CEO has been having back pain, and the CEO's administrative assistant calls to ask whether you can schedule him to be seen the next morning. If you do so, the patients scheduled for the afternoon will all have to wait at least 30 minutes longer than they otherwise would. Recalling the basic ethical principles of health care, how would you handle this decision? Back in the clinic that you manage, you discover there is a shortage of a critical medical item that is needed in nearly every neurosurgical procedure. Your patients represent a broad range of health conditions, races, ethnicities, educational and professional accomplishments, lifestyles, immigration statuses, and criminal records. Describe and defend your preferred way of allocating the item that is in short supply, assuming that no law or institutional policy governs the matter. Key Terms Click on each key term to see the definition. macroallocation The processes performed and decisions made to determine how limited resources are distributed in large groups or populations. medical futility The near certainty that an action taken in pursuit of a health care goal will fail. microallocation The processes performed and decisions made to determine how limited resources are distributed in individual cases or small groups. rationing Allocation of scarce resources; rationing is necessary and unavoidable whenever the need or demand for any product or service outstrips the supply. triage A system that indicates which patients have priority for treatment. Priority setting varies depending on the type of health care setting and the circumstances (such as routine versus disaster).