by Andreas Kluth
At some point after he became chief surgeon in Napoleon’s army, Dominique Jean Larrey started walking across blood-soaked battlefields to pick out those among the wounded who could still be saved, usually by instant amputation of limbs. In time, he developed a system of sorting and separating — trier in French — the casualties. Ignoring rank and nationality, he considered only those who had the greatest chance of surviving. His method became known as triage.
In worst-case scenarios, triage is nowadays accepted almost universally as necessary and justified. And yet, the idea still rests on an act of cruelty — cruel both to a victim and to the doctor having to make the decision. It often necessitates allowing one human being to die in order to ration the care that might let another live.
The current pandemic is a worst-case scenario. On-and-off for almost two years, doctors and nurses in some places have had to make traumatizing choices about life and death. Sometimes they had too many COVID patients for too few ventilators; other times too many with SARS-CoV-2 to be able to treat those dying from cancer or other diseases. Now the omicron variant — which appears to be somewhat milder but much more infectious — threatens to overwhelm hospitals yet again.
Against that backdrop, nine Germans have done us all a favor by starting an overdue debate. They brought a case to the constitutional court in Karlsruhe, arguing that during triage situations they risked discrimination, and therefore death. That’s because they suffer from disabilities. One, aged 30, had a stroke just after birth and can’t walk, stand or speak. Others have atrophied spinal muscles that complicate breathing. The oldest is a septuagenarian who has heart disease and diabetes.
Under existing guidelines in Germany, issued by a medical association, disabilities should in theory be irrelevant during triage — as is the case with age, sex or ethnicity. The only thing that matters is whether one individual patient in a specific situation with a specific ailment stands a better chance of being saved than another.
In practice, however, doctors under pressure are apt to view the frailties of disabled people as “comorbidities,” and thus relevant. Nancy Poser, one of the plaintiffs, explained the situation this way: If she had a heart attack and showed up in the hospital in her wheelchair, she’d get a worse triage score than a smoker simultaneously arriving with COVID-19. He’d get a bed; she wouldn’t. She “would have to die, exactly that.”
Last week, the judges in Karlsruhe ruled for the plaintiffs by requiring parliament to swiftly pass legislation that will govern the triage decisions to come. Ruling discrimination unconstitutional is the easy part, of course. The hard part will be enacting laws that give doctors legal security and simultaneously make sense in the real world, rather than just causing new problems.
As the discussions heat up, some pundits are already demanding making triage more fair overall. There’s danger in that goal. We can’t agree on what’s “fair” even in other policy areas and certainly won’t in this context.
Start with this hottest potato — how doctors should treat unvaccinated patients in triage. Almost nine in 10 of those hospitalized in Germany with SARS-CoV-2 are people who haven’t had their shots. If they had all been inoculated, intensive care units would never have come under such pressure and there wouldn’t be a need for triage at all.
To some people, this suggests that vaccinated patients, other things being equal, should get dibs, and the unvaccinated should wait for beds. Martin Hoffmann, a philosophy professor, emphasizes that this wouldn’t be about “punishing” the unvaccinated. It would simply take into account that the vaccinated have already taken an (admittedly tiny) risk — that of adverse reaction to the jab — to protect themselves and others. The unvaccinated haven’t, and must therefore accept more risk subsequently.
This logic may make intuitive sense, but intuition can be a bad guide to triage laws. Any consideration of vaccination status, like disability, would open Pandora’s box. Just as Larrey didn’t take rank into account, medical staff must never mix quasi-moral judgments into their decisions — that is, how “deserving” a patient may be, based on previous behavior. Otherwise, doctors would set precedents that could in time lead to a new debates about whose life is worth living.
The German parliament and other legislatures should therefore clarify that the allocation of scarce medical care must be based solely on the merits of each individual case and the relative likelihood of success, always with the goal of maximizing lives saved. Only medical staff can make these decisions.
But to ensure that even under pressure and ambiguity no discrimination takes place, parliament could require doctors to seek additional and independent opinions — perhaps from a medical board that can be contacted around the clock. This would add bureaucracy, but might prevent some bad calls.
That leaves the thorny issue of those unwilling to get vaccinated. Triage is not the place to deal with it. But society is justified in trying to prevent the worst-case scenarios that lead to triage in the first place.
Like every doctor, Dominique Jean Larrey would have preferred to treat every single victim on the battlefield. Our overall goal in policy today must be to keep that option alive — by making triage unnecessary wherever possible, so that doctors can care for all patients.
