One of the policy and medical ethics issues that is looming larger as the pandemic continues is the requirement that hospitals not be burdened by “non-essential surgery and medical procedures.”
I agree: it would have been better if Ethics Alarms has more precisely defined “essential surgery and medical procedures” in the previous post on the issue, when I examined the question of whether abortion can be ethically put in that category as Texas and Ohio have decreed. Abortion, as that post noted, is a particularly poor choice for such analysis, given that our society cannot agree on what it is, other than the Supreme Court’s ruling that whatever it is, a woman has a Constitutionally right to do it.
Incidentally: can we agree that there is also a constitutional right to have any surgery or medical procedure? It hasn’t been specifically stated by the Court, but I assume that the abortion precedent applies to everything else as well, from having a kidney transplant to getting a wart removed to acquiring breast implants. These would all fall under the right of privacy and inalienable rights of life, liberty and the pursuit of happiness. Forbidding any surgery, non-essential or otherwise, is a big deal, and my guess is that a judicial challenge to the whole concept would stand a substantial chance of success. What is essential surgery to me might not be such to you, but frankly, my dear, I don’t give a damn, and unlike an abortion, my procedure isn’t killing anyone.
In the earlier post, I described essential procedures as those that are urgent and cannot be postponed.
That’s not bad, except who gets to define “urgent” and when do inconvenience, earning and career interruptions and other adverse consequences rise to the level of “cannot be postponed”? In abortion, “urgent and cannot be postponed” means “the mother’s life is in danger” or the abortion option is about to become illegal. What about other surgeries and procedures?
Even though the baseball season is postponed, making life itself bleak and uninviting, National Pastime still can, as it has over a century, bring complex ethics issues into sharper focus.
Last week, two high-profile starting pitchers, Chris Sale of the Red Sox and Noah Syndergaard of the Mets, underwent Tommy John surgery. This is serious surgery for a baseball player that involves a tendon transplant to treat an injured pitching arm. Named after the first Major League pitcher to undergo the procedure successfully (who went on to long career just a bit short of the Hall of Fame), the operation takes 15-18 months for recovery, but recovery is usually complete.
Critics are asking whether Sale and Syndergaard used their King’s Passes as sports stars to bypass the loose ban on “non-essential surgery and medical procedures.” “The argument is: ‘Well, this needs to be a go because even though sports is suspended at the moment, this is a person’s livelihood and when things are up and running, it throws off all sorts of schedules, like rehab time,’” said Lee H. Igel, clinical associate professor at New York University’s Tisch Institute for Global Sport and a medical ethicist. He added,
“It’s an understandable argument, but it’s a no-go, because what we’re dealing with now in the world, it’s not a question of people’s livelihoods, it’s people’s lives, and there’s a big difference there. The scene out there in hospitals and clinics, it’s severe. It’s just not the time for Tommy John surgeries…“We don’t think of a young athlete having complications during surgery, but things happen that could cause somebody to go into an intensive care unit. The space is just not there, the supplies are just not there. Some of the professionals might be there, but it’s just not the right time for it.”
This is an ethics controversy, not a legal one, unlike abortion in Ohio and Texas. No state has specifically prohibited Tommy John surgery. The national recommendations are not laws; the states that have issued executive orders are vague regarding what exactly is being discouraged: in New Jersey, it’s “elective” procedures; it’s “non-essential” surgery in Ohio, and “non-urgent” in Kentucky. Some states allow doctors to decide what’s “essential.” Sports Illustrated concluded that “barring additional local regulations, an individual practice can quite easily make a legal determination that its essential procedures may include Tommy John.”
That ducks the ethics question, however. OK, Sale, and Syndergaard can have the surgery, but should they?
David Magnus, a professor of medicine and biomedical ethics at Stanford and the former chair of the ethics committee for Stanford Hospital is adamant:
“At the present time, I don’t think there’s even a question that it would be inappropriate and should not be done in any areas that are hit hard by COVID.And I think it’s arguably a bad idea to do anywhere right now…. Even in areas where there have been no reported cases, or very few, and it hasn’t spread yet, that’s changing by the hour. Maybe right at this moment, they don’t need the space, or the personnel that would be involved in the procedure, but that can change so rapidly that I think it would be an irresponsible use of resources. Nobody should be doing this.”
Easy for him to say. While a non-athlete can proceed normally through life with the kind of injury Sale has, the consequences of his not being able to pitch multiply with time. As it is, the Red Sox ace will miss a season and a half, and baseball players’ professional lives are short. A pitcher can recover from a year off without significant diminishment in his skills, but at two seasons off, the challenge is more daunting. What’s at stake? For Sale, many millions of dollars and his lifetime passion and current career. For the Red Sox, their team’s likelihood of success, which affects the careers of other players, businesses that depend on Major League Baseball, and the city of Boston. It’s not life and death, but delaying Tommie John surgery is far from insignificant. Is that enough to take a procedure out of the “non-essential” category?
Sports Illustrated raised another ethical consideration:
Major League Baseball has long cast itself as an essential piece of America, more deeply woven into the fabric of the country than any other sports league. To see these types of medical procedures continue, while others are halted nationwide, can seem like a betrayal of that trust.
It’s a difficult ethics balancing act. I think I end up in this question agreeing with the sports surgeon Dr. Neal El Attrache who told the San Francisco Chronicle,
“I know that I’m going to get criticized for taking care of these kinds of guys, but it’s essential to their livelihoods. If you have somebody’s career at stake and they lose two seasons instead of one, I would say that is not a non-essential or unimportant elective procedure.”
Ethics Alarms 
If it is a question of resources, then I think it might be unethical. Everyone is being asked to make sacrifices at this juncture. However, I don’t think the kind of doctors who do Tommy John surgery for stars are the kind of doctors in the middle of Covid panic.
There aren’t many of them, either.
Couldn’t they have had the surgeries someplace where there were the least number of cases? Maybe they could’ve been flown out of state?
For years, Dr. James Andrews (located in Alabama) has been the go-to guy for pitchers needing elbow surgery. I’m not sure whether he’s still the guy or if he’s retired, but in all my time watching baseball (most of my life), his name – and 1 or 2 other names – are the only names I’ve heard.
I believe the pool is pretty small.
I’m pretty sure Andrews did Sale’s elbow last week.
Another aspect of this “non-essential surgery” thing: A local hospital is on the verge of going under (for the second time since 2018 so there are obviously other economic issues at play here) because its surgery department is doing only forty percent of its usual surgeries and, guess what, losing sixty percent of the income those surgeries customarily generate for the, you know, for profit facility. The governor of Arizona has also directed the hospital to double the number of its beds from about one hundred fifty to three hundred. There are currently no Wuhan Flu patients in the hospital (which is remarkable given the fact the hospital is in a retirement community dating from the ‘sixties so it’s the kind of place that is ground zero for the “compromised” demographic. The hospital is just supposed to stand by and await patients? These are all unfunded mandates and probably unconstitutional takings.
By the way, Mrs. OB ran across an article today that stated approximately sixty percent (60%!!!) of the U.S. population is “compromised.” Good job everyone.
As to Tommy John and other surgeries, I’d say, “Have at it, gang. Cut away until the beds are actually needed.” It’s incredible how few surgeries involve even an over night stay. And huge numbers of surgeries are done in surgicenters rather than hospitals.
I opined on the question of elective abortions. My answer is the same here. I see no reason to deny any surgeries. I wll say that facilities can choose to prioritize procedures based on projected need.
You can posit the same question about any non life threatening hospitalization. Should we begin to turn away women who are 39 weeks pregnant? What about setting the broken bones of those engaging in fool hardy activities? If medical personnel are so interchangeable that we can make a orthopaedic surgeon a pulmonologist overnight why pay extra for specialists? Will we see trauma certified nurses reassigned to ward duty? I doubt it. Not all doctors are in hospitals if the facility needs more hands on deck recruit the private practice doctors and surgical center personnel to work on the floors.
I probably have a bias as as baseball fan as well, so..
I consider TJ surgery for a pitcher to be essential and ethical. While it’s not a life-saving transplant or the removal of a malignant tumor, it’s more important than cosmetic surgery. In this particular instance, Chris Sale wants the surgery because it’s his livelihood. He wants to be on the mound as soon as possible. His employer, the Boston Red Sox, wants him to have the surgery. Chris Sale is the ace of the rotation, and waiting until June or July for the procedure means he won’t get meaningful innings until 2022. That’s a huge blow to a billion-dollar organization. The company that insures Sale’s arm wants the surgery now as well, so as not to have to cover two years of of Sale’s salary…that’s probably what?…$55-60 million?
Anyways, you did a nice job explaining why the surgery was proper. I think many of the people that pan this type of procedure are the same ones blasting Robert Kraft for trying to help while supporting the President.
Incidentally: can we agree that there is also a constitutional right to have any surgery or medical procedure?
Before I get into that, let me offer the thought that the docs who perform aggressive orthopedic interventions like Tommy John surgery or (as a skier, I pay more attention to this) ACL rebuilds aren’t exactly trained or experienced in the procedures and approaches required to manage the pandemic. Nor are the specialty nurses and therapists who attend to such patients. It’s recommended that patients who have the surgery do only one overnight in the hospital before going home. So other than the removal of beds, the question is actually moot, is it not?
The real question is far more basic. Is health care – whether medical or surgical (elective or otherwise) – actually a RIGHT? Many people think so. I’m not certain I agree.
Here in the United States, we provide certain levels of sustenance. Through a variety of public, private and charitable funding mechanisms, we provide housing – not great housing, but a roof. We provide basic nutrition. We provide basic medical care. None of these are great, but they’re there.
We do these things, in my view, not because they’re RIGHTS, but because they’re good ideas – and ethical ones – that we can actually be provided. But if health care is actually a right, does an impoverished kid who MIGHT have the potential for an MLB career have a right to Tommy John surgery at public expense, simply because he blew out his elbow at 17?
If health care is a RIGHT, at what point does the entire world have a right to an MRI on demand – even though providing them would almost certainly save lives? Who pays for those multi-million dollar machines and the staff to run them? If health care is a RIGHT, who gets to determine how those machines are distributed in the third world? How do the people who have a right to those machines get to the nearest one, when it’s 500 miles away?
No other species believes that it has rights – and our nation is the one that determined that there are certain inalienable ones, which were clearly delineated in the Declaration of Independence. The rights noted said nothing about food, shelter, or medical care.
The UN, which HAS declared health care a “right,” has never offered up a reasonable idea of how any of that could actually be accomplished.
So no: there IS no constitutional right to have any surgical or medical procedure. We feed people because it’s better than having us break into our house and steal our stuff. We do these things because we can afford them and because doing so is in our own self interest. Not because it’s a right.
When people say it’s a right (and when I say it), I mean that the government can’t pass a law against getting a nose job, just like it can’t say I can’t buy green beans without a damn good reason. When progressives say we have a right to health care, or food, or housing, they mean the government should pay for it. That’s 100% irrelevant here (and garbage). But the right to have any procedure you choose, when you can pay for it, from an MD who is willing do it, is unquestionably a basic right.
Agreed?
Very similar to the idea that you have a right to be represented by a lawyer in Court. You just have to pay for it (public defenders, excepted).
-Jut
Yes, good comparison. None of our basic rights are supposed to depend on the government for funding. The government doesn’t have to buy us guns, either.
Agreed. Sorry I misconstrued.
Not a sports fan, in any way, but I only really have two concerns, and this applies to any elective surgery right now.. One there should not be anything done where there is any actual shortage of hospital beds, not projected, actual at the time of surgery,
As the second thing also ties into capacity, the recovery and rehab time should be a factor. Surgery to remove moles that are outpatient should depend on the doctor and patient’s willingness to be longer in higher risk locations like a large hospital. Even something like a nose job or botox don’t really have rehab and should probably delay until gathering is safer. But surgeries that have longer recovery and require rehab would probably be better to do now if facilities have the space, After all, everything being shut down means they can concentrate on the rehab when everyone is twiddling their thumbs. Delaying it until the crisis only extends the lost time or ends the career. The season is stalled at best and this would be a good time to do things they;ve never had the time for before. And really, anyone who has this many millions riding on recovery could have a recovery room redone in their home so they won’t be taking anything from a hospital after a short time.
These decisions should be the patient/doctor/team for the most part not weenies overreaching their authority.
I’m not getting into the basic ethics argument here. There does have to be a point where one’s death as an imminent danger has to override another’s right, but that is nowhere clear here. However, there are specific lists of what designates “elective” surgeries. These, by definition CAN be postponed medically speaking. Here’s the list:
Click to access HQ10_Glossary-ElectiveSurgery.pdf
As far as I can tell, the rest, apart from clearly life-threatening procedures, are up for ethical (and financial) grabs.
A coronary bypass graft? Wowsers. My dad was told to get one immediately if not sooner. Cataracts? In both eyes? And you gradually can’t see?
Here in New Zealand everything considered non urgent has been cancelled. My Mother has cataracts in both eyes and now her surgery has been put on hold. It’s not as if they need the hospital beds as only 15 people in New Zealand are in hospital due to the Wuhan virus.
In U.S., cataracts are done out patient. Wham bam. Soon I’m guessing they’ll be done in drive throughs.
Wow, gall bladder removal is elective? Don’t tell that to my doctor who would not let me leave his office when mine went bad. He had me admitted to the hospital on a Friday afternoon, and they operated Saturday morning — it was July 1st weekend, to boot.
I think a gall bladder infection is what finally did in my Dad, too.
I have a co-worker who has had shoulder surgery scheduled since last year. It’s cancelled and she has major problems with the shoulder (not to mention it’s their 3rd try at it). There are apparently a couple hundred people hospitalized in our whole state right now — not exactly overwhelmed.