Wednesday, April 8, 2020
At Dickinson Law, in the last third of the Spring 2020 Semester, my Elder Law students are doing a module on End-of-Life Decisions. I had planned this module more than a year in advance; certainly the timing has proven to be uniquely relevant. Originally, my plan was for an in-depth discussion about choices related to assisted death, sometimes known as the Death with Dignity or Physician-Assisted Death. And we are considering comparative studies and positions on legislation intended to support this choice, starting with a review of Oregon's more than 20 years of experience in providing this option.
The COVID-19 pandemic, however, is triggering new focal points on end-of-life decisions. Consider for example the statement by an emergency room chief in a San Francisco hospital, as quoted recently in the Los Angeles Times, "You have an 80-year-old and a 20-year-old and both need a vent and you only have one. What do you do?" Individuals may have thoughtfully made advance decisions about whether they want mechanical assistance in breathing during life-or-death circumstances. They may have appointed an agent to speak for them or created written directions via living wills, DNR orders, or POLST documents. But it is one thing to make you own decision; it is another to have the "decision" made because of lack of what is arguably baseline equipment.
I've been particularly interested in the history behind ventilator shortages as reported by The New York Times.
Thirteen years ago, a group of U.S. public health officials came up with a plan to address what they regarded as one of the medical system’s crucial vulnerabilities: a shortage of ventilators. The breathing-assistance machines tended to be bulky, expensive and limited in number. The plan was to build a large fleet of inexpensive portable devices to deploy in a flu pandemic or another crisis.
Money was budgeted. A federal contract was signed. Work got underway.
And then things suddenly veered off course. A multibillion-dollar maker of medical devices bought the small California company that had been hired to design the new machines. The project ultimately produced zero ventilators.
The rest of the story reads like a detective tale. The small California-based company was proposing a new generation of easy-to-use, more cost effective, mobile ventilators. By 2012, the partners were on schedule to file for market approval in September 2013, paving the path for production. However, in May 2012, a much large medical device manufacturer bought the California-based company for just over $100 million. Good news? That larger company might have especially strong resources for speedy production, right?
The new owner, Covidien, already made ventilators -- at a higher cost -- and in 2014, reportedly told federal officials they wanted to get out of the new ventilator contract. The federal government agreed to cancel the contract. Covidien was sold to an even larger international company in 2015.
Why? For more, read "The U.S. Tried to Build a New Fleet of Ventilators. The Mission Failed," by Nicholas Kulish, Sarah Kliff and Jessica Silver-Greenberg, published in the NY Times on March 29 2020 and updated on March 31, 2020. Or catch a NY Times podcast that looks further into shortages of hospital rooms, COVID-19 testing supplies and ventilator availability. All interesting -- especially if you are talking about "end-of- life decisions."