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Posted on October 5, 2019 at 3:42 PM

On 3 October, ProPublica published “‘It’s Very Unethical’: Audio Shows Hospital Kept Vegetative Patient on Life Support to Boost Survival Rates,” an article detailing aspects of the organ transplantation program at Newark Beth Israel Medical Center in New Jersey. Specifically, the article revealed portions of an April 2019 audio recording from a weekly meeting of transplant physicians, nurses, social workers, and transplant coordinators. One patient discussed was a 61-year-old man named Darryl Young, who had received a heart transplant on 21 September 2018. Mr. Young had never awakened after surgery, but the director of the heart and lung transplant program, Dr. Mark Zucker, expressed the “need to keep him alive until June 30 at a minimum.” Another transplant surgeon hoped that the transplant program would progress to the point of not having to “think about this ethical dilemma of keeping somebody alive for the sake of the program.”

At issue—at least in the transplant realm—is the “need” of hospitals to keep patients alive for at least one year after organ transplantation.   Why? The Center for Medicare & Medicaid Services (CMS) dictates the rules for transplant centers to exist and to receive funding. Two measures CMS uses for this are the 12-month survival of patients and the functioning of the transplanted organs at 12 months (see page 6/84 of linked article).  The penalty for not meeting the desired CMS algorithms is high. CMS can launch an audit of the transplant program and/or revoke Medicare funding, which pays for the transplants. When programs are not funded, they cease to exist.

There are other issues in this story as well: ethical issues that deserve our best thinking. One glaring problem is that of treating people as means to an end, cogs in a wheel.   The case of Mr. Young is sadly exemplary, but he surely is not the only one. Pressure to maintain the transplant program will be felt by all of the participants in one way or another. Everyone is responsible for his or her actions, certainly, but each person downstream of a decision may well be used as a cog in a wheel. The penalties for non-compliance at different levels may be varied, but are no less real. Additionally, can patients, or their family members/surrogate decision makers, refuse any procedures once they are in the transplant system?

The current CMS rules were instituted on 28 June 2007. This 2006 article from the Los Angeles Times presents some of the backdrop for such rules:

  • Medicare, which funds most of the nation’s transplant centers, requires programs to perform a minimum number of transplants and to achieve a specific survival rate to be certified for funding. The benchmarks vary by organ, and there are none for kidney transplants.
  • Three dozen heart transplant programs didn’t meet federal standards for survival or volume. They accounted for 43 more deaths than expected.
  • Altogether, the programs examined by The Times had 71 more patients die than expected within a year of transplant.

It appears the 2007 rules represent a pendulum swing from 2006. A golden mean is desired and preferable. It is time to look for one.

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