The triage guidelines, issued by the state Department of Health on April 11, specifically bar race, color and creed from being a consideration in the allocation of care. However, if a doctor uses underlying health issues to justify removing one patient from a ventilator in favor of another, that could represent implicit bias, Gill said.
“People should know when you can pull a plug on their mother,” said Gill, a member of the New Jersey Legislative Black Caucus.
The potential rationing of ventilators emerges amid growing evidence Covid-19 is hitting African Americans hardest. Though they represent just 14 percent of the state’s population, black New Jerseyans account for 22 percent of those who have died from coronavirus-related complications. Other hot spots have seen similar disparities, particularly in Michigan and Louisiana, where officials warned about an explosion of Covid-19 deaths among racial and ethnic minorities.
The crisis is most pressing along the I-95 corridor where, as the pandemic spread from its epicenter in New York City, state officials in Massachusetts and New Jersey instructed hospitals to prioritize care to those most likely to benefit from a ventilator, taking into account the presence of comorbidities or, as Garden State officials wrote, “severely limited life expectancy even if the patient survived the acute critical illness.”
The guidelines are designed to stave off situations like those seen in New York City, where physicians were reportedly instructed to use their own judgment as emergency rooms and critical care units were overrun by patients. However, critics say those parameters will almost certainly favor those unafflicted by Covid-19’s most common comorbidities — diabetes, heart disease and chronic lung disease — all of which are more prevalent within the African American community.
New Jersey Gov. Phil Murphy and state Health Commissioner Judith Persichilli have been adamant that bias plays no role in determining who gets care. They also acknowledge the centuries of structural inequalities that allowed heart disease, diabetes and other underlying conditions to permeate through the African American community, contributing to a disproportionate number of Covid-19 deaths among the state’s black population.
“We are hyper-focused, overwhelmingly focused on the nothing exclusionary and no discrimination piece of this and we mean it and we expect all the health care providers in the state to also mean it and act on that basis,” Murphy said at a press conference on Wednesday. “The last thing we need right now, as a state with inequalities that already exist in peacetime before this ever came upon us, is to have those inequalities exacerbated.”
New Jersey’s ventilator policy, a modified version of a model developed by the University of Pittsburgh, specifically tasks hospitals with assembling “triage teams” to decide who receives care when the state’s medical resources are tapped out.
The process removes the attending physician from the decision-making process, which takes into account the likelihood a patient will survive treatment as well as their life expectancy.
The triage policy also prioritizes front-line health care workers and includes mechanisms by which a patient’s family members can appeal the triage team’s decision.
By design, the policy intends to eliminate prejudicial thinking from these worst-case scenarios, and declines to list underlying diagnoses and conditions that would preclude a patient from receiving care. Gill and other state leaders worry the specter of bias still hangs over decisions regarding which patients receive care.
In Massachusetts — governed by Murphy’s former Harvard classmate Charlie Baker — some lawmakers have made a similar case that the University of Pittsburgh guidelines prioritize white patients over black ones.
“Undoubtedly, this crisis will force our physicians and frontline healthcare workers to make difficult decisions,” Rep. Ayanna Pressley (D-Mass.) told POLITICO in a statement. “These decisions cannot be guided by a set of standards that devalues the lives of individuals with disabilities and people of color.”
In New Jersey, the Murphy administration’s response has been hamstrung by insufficient resources, inadequate support from the federal government and an unrelenting torrent of new cases — particularly in densely populated urban and suburban communities throughout the state’s northern counties.
Large black populations in those communities, coupled by disproportionate representation in the workforces of businesses New Jersey has deemed “essential” — meaning they’re less likely to be sheltering in place and working from home — has contributed the racial disparities seen in the state’s coronavirus data, Murphy said at a press briefing last week.
Historically, those communities have also had deficient access to health care, which no doubt contributes to a greater prevalence of underlying conditions.
“Those are things we’ve got to continue — as they say — to unpack,” Murphy said. “It’s not like we weren’t focused on those on a going-in basis before this crisis ever occurred. But this, like a lot of other things, this really shines a light on the weaknesses and inequalities in our society.”
For weeks, New Jersey health officials wrestled with how they should guide health care workers on once unthinkable decisions to ration critical care resources and ventilators.
From the early days of the crisis, Murphy and Persichilli warned that if the state didn’t adequately prepare, or if residents didn’t adhere to increasingly restrictive social distancing directives, New Jersey could face outcomes resembling what’s occurred in Italy, Iran and China, where local infrastructures were overrun by a surge of Covid-19 hospitalizations and deaths.
With the state’s health system running low on critical resources, New Jersey has skirted close to matching the bleak realities. At one point last weekend, just 61 ventilators were available across the state’s 70-plus acute care hospitals. Health department projections indicate the state will need around 1,000 more of the life-saving machines to treat patients at the pandemic’s peak, which is expected to hit in the coming days.
More than half the patients who have died from Covid-19 complications in New Jersey had an underlying cardiovascular disease. Roughly a third had been diagnosed with diabetes. Chronic lung and renal diseases, which are more common among black residents, also feature prominently in the New Jersey deaths.
“We do know that it exists, institutional bias exists throughout all of health care,” Persichilli said Wednesday, “The allocation policy requires that there are groups of people that help make the decision and the directly-treating physician cannot make the decision. Hopefully, that group will be able to control for the bias we know exists prior to the pandemic.”
On April 6, less than a week before the guidelines were issued by the state Department of Health, Gill sent Murphy and Persichilli a letter emphasizing that people of color may be negatively impacted by prioritization scoring.
Those concerns were underscored by the Trump administration’s response to the pandemic’s arrival in New Jersey. While support arrived in the form of FEMA-backed testing sites and hospitals, key resources — namely ventilators — remained in dangerously short supply.
As resources waned, Murphy and Persichilli called on every doctor from every specialty, along with every health care worker and emergency volunteer across New Jersey and over state lines, to begin treating or aiding in the treatment of Covid-19 patients. An executive order, crafted to restock the state’s health care workforce with those who had retired or stepped away from the medical profession, granted malpractice immunity, both criminal and civil, to professionals and facilities responding to the pandemic.
On April 11, the same day the state issued its triage guidelines, state Attorney General Gurbir Grewal released an order recognizing the legal implications of removing a ventilator and granting criminal malpractice immunity as well.
“A clinician who removes a ventilator from a patient — knowing that the patient will or might die as a result — could conceivably face criminal homicide charges, and the risk of such prosecution, however remote, could deter professionals from making medically appropriate decisions in the midst of a public health emergency,” Grewal’s order reads.
The state Legislature followed up with a bill, NJ S2333 (20R), that specifically waived criminal and civil liabilities for health care workers and facilities working in good faith to ameliorate the Covid-19 pandemic. Murphy signed the bill — which stops short of offering blanket protections for crimes, fraud, actual malice, gross negligence or willful misconduct — on April 14.
Gill told POLITICO she agrees a good-faith or qualified immunity policy would be necessary but said she fears the combination of civil and criminal immunity could wind up shielding hospitals and doctors who act on implicit bias from legal recourse. Without family advocates in the room, Gill said, those in black and brown communities are left in the dark.
State Sen. Ron Rice, a Democrat who represents Newark and is chairman of the state Legislative Black Caucus, said during a remote Senate session last Monday that he understood and shared Gill’s concerns. Hours later, Assemblyman Jamel Holley echoed some of Gill’s questions. In the end, Rice recused himself from the vote; Holley abstained.
Now that the law is on the books, Gill said she would continue to raise the issue.
“If we’re going to do this, and give absolute immunity and criminal immunity in a situation where you are not considering prioritizing … comorbidities that have a direct impact on black and brown people?“ she said. “That’s a problem.”
Source: politico.com
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