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Deciding Who Gets Treated First

Jewish law directs that an active, considered choice be made.
[additional-authors]
June 8, 2020
A medical professional administers a coronavirus (covid-19) test at a drive thru testing location conducted by staffers from University of California, San Francisco Medical Center (UCSF) in the parking lot of the Bolinas Fire Department April 20, 2020 in Bolinas, California. (Photo by Ezra Shaw/Getty Images)

Public health interventions appear to have mitigated the immediate threat of COVID-19 for many. However, as restrictions relax and the economy reopens, there remains the threat that the coronavirus will sicken many more people, which still might overwhelm the health care system, even as emergency arrangements are dismantled. Hospitals and health systems happily are filing away the plans they developed for dealing with the circumstance in which there are not enough life-saving machines to serve everyone in need. These triage plans garnered reactions from many that selection of one patient over another is unacceptable because of bias, with particular concern about unfair decision making regarding age, gender, race and disability. The state of California released a resource allocation instruction in the setting of crisis and it rapidly was retracted in the face of fierce critique.

The current circumstance of decreasing COVID-19 infections and deaths is a good time to contemplate how we as a society should adjudicate who would receive a single available ventilator. Should we allocate it to a young person with a good prognosis rather than leave an elderly person in permanent coma on the machine to be saved? Should we evaluate if one patient or another is more essential to society? As a doctor and a rabbi, we believe our shared tradition requires applying a rule of triage to provide scarce medical-care resources in such a way as to maximize potential benefit.

Jewish law directs that an active, considered choice be made. In the Talmud, it is asked: If two people were walking on a desolate path and there was a jug of water in the possession of one of them, and the situation was such that if both drink from the jug, both will die, as there is not enough water, but if only one of them drinks, he will reach a settled area, there is a dispute as to the halachah. (Bava Metzia 62a:1-2)

The Talmud proceeds to record two approaches with different expected outcomes. The first is to have the individuals share the water, ensuring both will perish, as long as neither sees the other suffer. The second opinion, proffered by Rabbi Akiva, states the individual in the possession of the water drinks while the other dies, so that at least one will survive.

 Jewish law directs that an active, considered choice be made.

The Talmud agrees with Rabbi Akiva’s position, even quoting the verse from Leviticus, “your brethren shall live with you.” (Leviticus 25:36) That is, when life is at stake, preserving the life of one is better than the deaths of two. Who has priority in this situation is a debate for society to openly and vigorously have. By asking what the right answer to the ethical dilemma is, the Talmud brings to the surface that hard questions and hard decisions must be made. Society must make a decision rule; dismissing the question by focusing only on larger inequities cannot ensure a vital outcome for anyone. When rule-setting is not implemented, we are left with a rote first-come-first-served paradigm that can preserve inequity, cause harm and use vital resources with caprice. That is clearly an unacceptable approach.

Because we live in a world replete with health care resources, most of us are unaware that prioritization is ever needed. Under normal conditions, the dangers of first-come, first-served allocation are subtle. For instance, an examination at one academic health system of full critical-care units in which at least one patient was too sick to benefit from intensive care treatments found that this adversely affected others waiting for a bed, some never getting a chance to transfer from a smaller hospital for a possible lifesaving organ transplant.

Certainly, triage rules must be as objective as possible and embody principles of fairness to protect people who are less powerful or who cannot argue for themselves. Judaism instructs us to “speak up, judge righteously, champion the poor and the needy” (Proverbs 31:9). We are to feed the hungry, clothe the naked and preserve the dignity of the downtrodden. Furthermore, we are told — more times than any other commandment — to protect the stranger.

Patients with good prognoses, even if they are uninsured or under-insured, even if they are not well known to us or liked by us, even if they would displace one of our own, should receive priority if they are more likely to benefit from critical care. If lifesaving treatments have a high probability of benefiting one patient while only a small (but non-zero) likelihood of helping another, in the setting of dire scarcity, we must apply the treatment to the one most likely to benefit. We must steadfastly protect against bias in resource allocation, but we must triage.

It is not unexpected that advocates for older individuals, people with disabilities and those with inadequate access to medical care could argue against any decision rules. Whenever such rules are put in place, they tend to privilege those with the greatest access to health care. This is why triage criteria must be objective, specific and transparent. They must be debated explicitly in the public forum. Fear of this societal conversation must not force us to dodge the creation of crisis triage rules. In that case, as with the two men sharing the single jug of water, we all lose.


Neil S. Wenger, M.D., is professor of medicine at the David Geffen School of Medicine at UCLA. Noah Farkas is a rabbi at Valley Beth Shalom in Encino.

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