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.”