Tragic Allocation Challenges in the COVID-19 Era

Abstract

Human society is facing its worst nightmare—a global pandemic caused by a highly infectious, resilient, and enigmatic virus. Questions that have occupied moral philosophers for ages transform into urgent practical predicaments for doctors, ethicists, and healthcare policymakers facing impossible situations. Societies, grown accustomed to the notion of plentifulness, are forced to grapple with the prospect of scarcity, particularly that of life-saving resources, such as ventilators, ICU beds, health human resources, medication, and vaccines. Leading health ethicists and other professionals have already penned articles addressing the reemerging dilemmas regarding the allocation of scarce life-saving resources. Although several papers discussing these matters have been published in the most prominent medical journals, they lacked a broader interdisciplinary perspective. In this Article, we illuminate the difficult questions ahead from a somewhat different angle – that of legal experience and scholarship. After reviewing previously proposed recommendations, the Article calls on the policy and health community to reconsider some of them, while accounting for existing legal literature and critical thinking about allocation methods and benefiting from their accumulated wisdom.

Part I presents the primary medical allocation principles, explains their limits, and outlines possible solutions, such as the use of “non-conventional” methods for the allocation of scarce life-saving resources among equally situated candidates. Part II closely examines and challenges the recent recommendations to opt for allocation via lotteries when patients are relatively equal, explaining why applying queues is often preferable from a fairness perspective. Part III compares the two methods (lotteries and queues) from an efficiency perspective. Part IV addresses key exceptions to the application of non-conventional allocation models - consent, merit, and skill - and argues that these exceptions should be applied carefully and narrowly. Part V examines the feasibility, utility, and fairness of reallocating scarce life-saving resources after their initial allocation. It focuses on “sharing” ventilators and medical staff among patients in critical condition over time. In doing so, it frames the policy discussion regarding these matters within the broader legal and policy debates on reallocating resources (“time-sharing”) and explains how relying on this paradigm can prove fruitful to the analysis.

Keywords: legal theory, bioethics, law and economics, efficiency, fairness, health law, scarcity, allocations, legal theory, bio-ethics, health law, scarcity, lotteries, queues, reallocation, ventilators

JEL Classification: K00, K32, I18