Ethical Dilemmas in Health and the Treatment of Covid-19
Date: November 11, 2020 (Note New Date)
Time: 3:00-4:30 PM
Place: Virtual Via Zoom
Presenters: Dr. Roger Bernier, Attorney Jason Luckasevic, Dr. J. Phillip Saul
Board member Bill Byrne, who organized the session, moderated and introduced the three speakers:
• Dr. Roger Bernier, editor of The Epidemiology Monitor and senior advisor for Scientific Strategy and Innovation for the Centers of Disease Control and Prevention.
• Dr. J. Philip Saul, Medical University of South Carolina professor of pediatrics, who has published more than 300 articles, chapters and books and holds eight patents.
• Jason Lukasevic, personal injury trial lawyer known for lawsuits against the National Football League regarding chronic traumatic encephalopathy.
Dr. Bernier called the current Covid-10 pandemic the most significant health worldwide challenge to values and ethics in 100 years. He called the response of the United States, once considered the leader in such issues, “a colossal failure.”
Quoting author Philip Boyle, he identified four competing values as important to Americans: liberty, equality, community and prosperity. Tension between these values has created our national dilemma, not good versus bad but rather the task of doing good without doing too much bad at the same time. As cases climbed worldwide, Americans’ choice, he said, was to decide whether to try to crush the curve (as New Zealand and China did) flatten the curve (as Europe and the United States did), ride the curve (as Sweden did) or ignore the curve (as Belarus did). By choosing to try to flatten the curve, this country pitted community safety against prosperity. Implementation was imperfect. The economy took a dive, and choices were made in some circles to ignore the curve of the disease in favor of prosperity. So far, 240,000 Americans have died of the disease, and if restrictions continue to be loosened, the number of fatalities is projected to double by February.
Masks came to represent a tradeoff between personal liberty and community. Mixed messages about them in the early spring (when masks were scarce) confused the public. Once medical professionals began to urge mask-wearing, some Americans came to see masks as an infringement on liberty. They chose individual freedom not to wear a mask over the importance of community. (Recently doctors have advocated masks as a protection not only for others but for the mask-wearer as well.) Downplaying facts and expertise and promoting false information brought on additional problems. Dr. Bernier showed a cartoon poking fun at “private science” contrary to real science and “personal facts” contrary to widely acknowledged expertise. Focus on community, which would have advocated mask-wearing and strict social distancing early and over the long haul, should have been the role of the federal government, he said.
Deciding how to distribute effective vaccines, once available, Dr. Bernier said, also will pit Americans’ values of liberty, equality, community and prosperity against one another. Should the pattern be “first come, first serve”? Should there be a lottery? How should risk come into play? How do we achieve maximum benefit for the whole population? How do we make the system fair? How do we mitigate inequality? The National Academy of Medicine has published guiding principles which assume that community matters more than liberty and that the socially vulnerable go first.
In Phase I, vaccinations would go to high-risk health workers and first responders, then to people with pre-existing conditions and older adults living in group settings.
Phase II would then vaccinate teachers and school staff, child-care workers, others of high risk, those living in group, homes and older adults not in Phase II.
Phase III would vaccinate ages 18-30, children 0-19 and adult workers important to society but not included in Phases I and II.
Phase IV would vaccinate everyone else in the United States. Ten percent of the vaccines should be distributed internationally as an expense necessary for the security of this country, the academy said.
Dr. Phil Saul listed ethical issues linked to the pandemic and vaccines from the CDC: attention to preserving the functions of society, transparency, public engagement, preparedness, evidence-based guidelines, global health, diversity and fairness. The agency recommends balancing individual interests with community interests. Americans have accepted restrictions on smoking, requirements for car insurance, use of seat belts and air bags, he pointed out. In this period, however, some have resisted recommendations and requirements for masks, social distancing, quarantine of exposed persons and travel limits.
Rhetorically, Dr. Saul asked, “Is it ethical to protect people in pandemics?” The world has lived with and millions have died during other pandemics: typhoid, measles, smallpox, three Bubonic plagues and the Spanish flu. Mask-wearing during those times was common and was not treated as an infringement on individual rights. Although Beaufort County has maintained pretty low levels of cases and deaths, positive-case ratios are going up in South Carolina. Transmission occurs as affected persons talk, shout and sing close to one another. Science shows that mask mandates have a major beneficial effect.
What are our problems today? Covid fatigue and limits on ways to relieve it. What happens when a masked person tells another in a public enclosure to put on a mask? Does the non-mask wearer rebel? Or say, “Thank you. I forgot. I will do it now.”?
Jason Lukasevic, for the last four years a Hilton Head Island resident with a law firm in Pittsburgh, pointed out that he has become familiar with Zoom and other systems for taking care of business not in person. He is also familiar with ethical issues involving health and money. During litigation against the NFL over head injuries, for example, lenders offered pre-settlement money at high interest rates to his troubled and often mentally defective clients. What was his ethical obligation to his clients?
As the court systems closed down because of Covid-19, defendants, prosecutors, plaintiffs and all involved fell into predicaments. Settlement negotiations and jury trials have been put on hold. Is it ethical to force a defendant to go into a courtroom where neither masks nor social distancing is in play? If not, how to legal proceedings function? Can due process really be served using Zoom? So what is the ethical obligation of lawyers? The Academy of Trial Lawyers has tried to organize ways to reach settlements in new ways. In the last two court terms Jason has worked as a mediator toward that end.
From the audience came questions and observations. Gordon Haist noted that the use of masks today has struck the notion of liberty as a value with some insisting they must have “freedom from” mask-wearing instead of “freedom to” move about society with reduced Covid-19 risk. Someone else suggested that upcoming “political settlements” will ease the problem of politicalization of mask-wearing.
Special thanks to board member Bill Byrne for both moderating and hosting the Zoom meeting. Thanks also to Fran Bollin for her expert note-taking and summary.