These are extraordinary times in the truest sense of the word. As the COVID-19 pandemic unfolds, there will certainly be many issues that raise ethical concerns. Regardless of the specific issues to be addressed or the ultimate decision that are made, most people would agree that decision-making in advance is better than decision-making under duress, stress and fatigue. Waller attorney Nathan Kottkamp joins us to help us frame discussions around emerging ethical dilemmas.

[[embed1]]

Here is a transcript of the conversation:

Morgan

On today's episode, we're joined by Nathan Kottkamp, a member of the firm's healthcare compliance and operations group. In addition to being an attorney, Nathan has a master's degree in bioethics and is the founder of National Health Care Decisions Day.

I'm not sure anyone really has the answers or answer to a lot of the difficult questions that are being posed in the healthcare setting right now, but I'm sure a lot of healthcare providers are wanting to know the steps to take or the questions to ask themselves as they consider options in these difficult circumstances, whether or not it's who gets the ventilator that's available or we have limited access to PPE. These are really, really challenging times, and I'm looking forward to this conversation with you today, Nathan, to better understand the questions that folks should be asking and the best paths to take in making some some challenging decisions today.

Nathan

First and foremost thank you for the intro and I do want to reiterate that I do not claim to have the answers. I know how to ask a lot of the relevant questions, but the answers to a lot of these things are subject to debate. I think we can oftentimes agree on what are the bad ways to make decisions, even if it's a fairly simple structure, such as just providing service on a first come first served basis. That’s a bad way to do it, we can agree on that. But in terms of the allocation, I think the biggest issues that we're seeing is what is the structure or decision making in the first place? Who designed those structures, who implements those structures, and how do we relieve healthcare providers from individual choices? Because those are really challenging for the individual to handle. We don't want to deal with posttraumatic stress issues, and the more it’s individual-based the more we have differences in how allocation works.

Morgan

So, obviously, ventilators are the topic that a lot of folks are talking about right now. How should ventilators be allocated?

Nathan

Well, that is the one that's on top of everyone's mind right now, at least what I'm seeing with clients and around the country, frankly. I mentioned first come, first serve. I think it's one of these things where we can agree that that's a bad way to allocate ventilators. So would be a lottery system. So we try to find a way that is fair, equitable and justifiable to allocate ventilators in a way that maximizes the benefit.

Typically, the way that is done is to look at closest we can get to objective standards that are going to produce the highest probability of survival, and within that there are lots of different ways to measure those criteria. And there are lots of different sub elements of the criteria that could come into play. And that's where it really gets complicated. I think the high level structure there's a lot of agreement there, but it's really the meat on the bone where the trouble can be.

Morgan

I've read a few articles about how the COVID-19 pandemic is really bringing to light some of the racial and socioeconomic disparities and particularly in healthcare delivery. What can be done to those racial and socioeconomic disparities and the way that COVID is affecting patients?

Nathan

Well, it is a real challenge. I think it's obvious from what we're seeing with the experience of hospitals and cities and things like that, where the death rates of COVID patients are extraordinarily higher, proportionally to the racial mix of that particular city. So those are sort of places that we're seeing it. I think, in terms of designing crisis standards of care for ventilators is very, very difficult to try to correct those sorts of things in the heat of the moment. Those are social structures. Those are things that have developed over long histories in the United States, and they absolutely need to be addressed. But modifying and creating exceptions for crisis standards of is probably not the best way to do that. It raises lots of justice questions and fairness and equity events like that.

Morgan

What is the role of advanced care planning in all of this?

Nathan

Well, you mentioned, I'm the founder of National Health Care Decisions Day. That's coming up in April 16, but it's an issue all the time. I created that event because I serve on several hospital ethics committees and the issue of trying to make decisions for patients when we don't know what their wishes are or when we don't know who their decision makers are has been a perpetual challenge. And now it's even more so. So we're hoping that this will be a wake up call for all adults to create an advance care plan of some sort or another doesn't have to be real detailed in terms of what your care wishes are. Sort of just stating your general wishes is oftentimes enough to be able to guide care, but more than anything is naming who your agent is. If you don't want a ventilator, for example, you will be in a medically induced coma; you cannot make decisions for yourself. So if you’ve got multiple children, who is going to be the decider? That's where we have a lot of conflict and we just need your help to create an advance care plan.

Morgan

Yeah, it's interesting because I feel like that’s sort of in line with, I keep hearing these stories about people show up to the ER. Their family can't come in with them. They're not sure if they're going to see their family member again or not. So how are these advance care plans played out in that setting where you're not physically able to be together or if you're so ill, I guess they know to call your family member and and they’re able to have those conversations over the phone? How does that work?

Nathan

Well, if you've created a plan, then yes, it makes things much easier. If you don't, then what ends up happening is we spend a lot of time and resources just putting things on hold until we can track down family members. Oftentimes it's multiple children, and then they end up in conflict. So by laying out an advance care plan by picking someone as the sole decision maker, and obviously you can require the input of others in that decision, but by having a single individual, you eliminate the problem of having a stalemate.

Morgan

Yeah, that's an excellent point. How does COVID affect CPR and other resuscitative efforts?

Nathan

Well, the ordinary rule in hospitals and with ambulance responders and things like that is that unless there is a do not resuscitate order, providers are going to attempt resuscitation. The challenge as it relates to COVID is with resuscitation you are oftentimes doing chest compressions, which is effectively creating a micro-coughs every single time, and so the potential for the virus to be spread through these coughs in this sort of aerosol effect is very, very high. Ordinarily, when there are code teams in hospitals, it's larger than the ordinary care team, so not only do you have substantially increased risk of having the virus in the air because of what you're doing, you are much more likely to have a lot more people in the room. So it's a multiplier effect of the risk of resuscitation.

Morgan

So you've mentioned quite a few. You know, we've talked about the ventilators and resuscitative efforts. What about other ethical issues that providers really should be considering and weighing?

Nathan

So in terms of other issues, I think I could fill hours upon hours of podcasts, but we're not gonna do that here, but I think some of the highlight issues that we see from this are some of the differences in treatment and accessibility to healthcare services across state lines. Some of it is resource preparedness. Another issue that that’s dicey is how many resources do you deploy right now if you're expecting a peek to come later? You have to be thinking about the fatigue and the mental health aspects of this on the frontline providers. Another really, really challenging issue that has been raised by the code situation is mental health, substance abuse, domestic violence. All those indicators appear to be up as people are under higher amounts of stress, they’re locked into their homes. Those are gonna just be issues that are gonna have ramifications long after the COVID itself crisis has been dealt with. And then, you know, as an ethicist, I think about what, what do we teach our children about the situation? What do we teach ourselves? How do we use this experience to model ideal society, where we want it to go, and looking at the things that this has put a spotlight on, things that we just don't like about our culture? Those are not easy things to talk about, they’re not easy fixes to address, but I do think we owe it to ourselves to use this as a reflective moment.

Morgan

Putting on your attorney hat now and you're compliance hat and how these two things overlay. I'm curious, you know, as an executive at a hospital or maybe even a provider, you know, your employees are there risks that they’re there under right now? So, for instance, you hear a lot about PPE, and I'm wearing the same gown,  typically, our standards of care are that we will change out of a gown if we're treating a patient that has COVID, go into the next room over, not sure if that patient has COVID-19, or changing my mask. Are there compliance issues here, as well?

Nathan

Undoubtedly there are compliance issues, and I think from a liability risk mitigation perspective, you wanna be sure that decisions about things like PPE are just well thought out. You want to be sure that to the degree that you can you will roll things out as policies for the institution, recognizing they could change literally hour by hour. But to make it a institutional policy relieves the individual providers of the burden that they're deviating from what the label on the PPE says to do. You’re gonna feel much better as a nurse or doctor if you're following what your administrator said, and particularly when the administrator tells you, we don't think there's gonna be a liability issue, but we've got your back if something's up.

Morgan

Are there other liability issues that providers should be aware of? I mean, it just seems like there are a lot of ways that things could go south here and at least being aware because things are moving so quickly. I'm sure it's just hard for them to stop and think about how they handle certain scenarios. So there are certain ones that kind of bubble to the top for you?

Nathan

Oh, uh, undoubtedly. I think, the one that I'm seeing right now at the fulcrum is having states issue, whether it's a declaration from the governor or some other statement to indicate that they are immune from liability for the things that they're doing that deviate from the ordinary standard of care while while we're in crisis mode. It's sad that we would have providers having to be worried about that. But the reality is that they are, and in many states, like Virginia, where I am, have statutes on the books that address these sorts of immunities, but there's some questions about whether they have been triggered, so I think that's a big deal for providers. I'd also say that, you know, back to the advance care planning thing. What do you do when you have a patient who's in crisis and you can't find a decision maker and you would otherwise go to the courts, but the courts are closed? What do you do? I think the appropriate course of action is use your best judgment and hopefully that will turn out for you in the end. But it's hard to tell providers that there actually gonna be safe when there are these gaps in the law.

Morgan

You know, it's a really, really challenging time in so many regards, whether or not your administrator or directly providing care to patients. There are just so many unanswered questions, but I think you're exactly right. It's taking a deep breath and trying to use your best judgment in some really complex situations and circumstances that we've never seen before. And I think that the situation will continue to evolve, but it sounds like, you know, leaning on others in the industry and asking questions to advisers and leaning on others for support, to get sort of different perspectives on how to handle the situations, and, you know, hopefully things will continue to improve in the coming weeks, whether or not it's access to ventilators and PPE and getting some of these answers to best ways to handle various different scenarios.

Nathan

I couldn't agree more, and I would be remiss if I didn't mention to folks that again, National Health Care Decisions Day is April 16. It is specifically the day after Tax Day, and like Ben Franklin put it, “nothing in life is certain but death and taxes.” And as a result of that, and because things are so topsy turvy this year, we're gonna do another one, so July 16 unless they postpone tax day yet again. But we're gonna have a second shot at National Health Care Decisions Day. The resources are there throughout the year. They're all free at www.NHCDD.org and please, it doesn't matter what your plan says. Just have a plan. Share it. It's a gift to you and your loved ones that will prevent a lot of these ethics issues that we talked about today, if you just take that simple step, so thanks.

Morgan

I wanna pivot because I think we've spent a lot of time talking about what patients can do to protect themselves and particularly in this situation. We’ve talked about advanced care plans. As a physician or as a nurse or other provider, how do you recommend that they deal with this conflict with family members or conflicting decisions that are in a gray area? Do you have any pointers for them?

Nathan

I do. I think first and foremost is the attempt to cut this off of the pass and realize that there's a lot that could be done to prevent these conflicts in the first place. Patients are routinely asked about where they have an advanced directive when they come into the facility, but it's usually just the registration or intake person that's doing that, and they're not integrating that into the care plan. So the physicians and nurses, when they're doing intake and working up a patient, really need to be looking at, do we have instructions? Do we have an identified decision maker if the person has multiple children or if they’re divorced? These are sort of easy to flag situations where you know that you may end up with a problem.

Where you do have that conflict, the strongest recommendation I have is don't try and solve it by yourself. This is where a team approach is way better than an individual approach. Every hospital has an ethics committee, you should rely on that. You should get administrators involved. And not all of these involve legal issues, but obviously this is a great place for legal council to come in and assist, particularly where you’ve sort of hit the end of the road clinically, and now the law comes into play. So my strongest recommendation is just call on others, because these things are hard enough dealing with individually, it's best to get some help.

Morgan

In terms of communication, it seems like there's two paths here. One is from the leadership, the administrators, at these hospital facilities, communicating out to physicians, nurses, other employees at the hospitals on decisions that are being made and how to handle these difficult situations. But also as a provider or, you know, an employee at a hospital, how do I report up? There's a two way communication there that needs to happen, and it seems like things are moving so rapidly. Do you have recommendations or examples that you've seen of how communications can work effectively and these scenarios?

Nathan

I do. Even in the ordinary times when you’d think that there's much more time to react and get things to an ethics committee, I've seen numerous occasions where folks on the floor in the ICU, for example, don't know how to get in touch with the ethics committee, so they ended, typically reaching out to the administrator, which is fine, but it's inefficient to do it that way. So while we're in crisis mode, I think there's a lot to be said for multiple ways of getting information out and doing so on multiple occasions. I think to think that you've sent one email and you check the box, and now everyone's gonna know how to get in touch with the ethics committee is foolish, and it's just not gonna do what we need to do. So where there are protocols in place, you wanna be sure that those are shared widely, to the degree that they could be posted that's the best way to do it. But a lot of times facilities are not making decisions as much as they are laying out protocols and providing a structure for making decisions. And having that consistency is really important. So I just say, push it out as much as you can, make sure it's discussed, that there’s gonna be briefings going on, there’s gonna be a smaller group sessions going on, as well as printed and email correspondents. These are things to be repeated broadly.

Morgan

Great. Thanks so much, Nathan.

Thank you for listening to this episode of PointByPoint, brought to you by Waller. Visit the News and Insights section of our website to listen to more episodes, subscribe to the podcast, find show notes and more.