Some Ethical Costs of Rationing

Menzel P. , Strong Medicine: The Ethical Rationing of Health Care (Oxford University Press, New York, N.Y., 1990), Chapters 1 and 2, especially pp. 10–15.

On the conditional moral legitimacy of presuming a person's consent, see Menzel, supra note 1, pp. 22–36.

Veatch R.M. , “DRGs and the Ethical Allocation of Resources,” Hastings Center Report 16 (3): 32. (June, 1986); “Physicians and Cost-Containment: The Ethical Conflict,” Jurimetries Journal 30: 461 (summer, 1990).

A case before the Fourth Judicial District Court, Hennepin County, Minnesota, from February to July, 1991. In addition to miscellaneous newspaper articles during these months my information on the case is taken from and unpublished but widely distributed detailed communication on the case from S. Miles, Hennepin County Medical Center, March 22, 1991; Cranford R. , “Helga Wanglie's Ventilator,” Hastings Center Report 21 (4): 23 (July/August, 1991); Rie M. , “The Limits of a Wish,” Hastings Center Report 21 (4): 24 (July/August, 1991); Ackerman F. , “The Significance of a Wish,” Hastings Center Report 21 (4): 27 (July/August, 1991).

Ackerman , supra note 4, p. 29.

The logic here would be that dying patients have an interest in being remembered well by their closest family and friends. See dissenting opinion by Justice Stevens in “Cruzan v. Missouri Department of Health” 58 LW 4916 (June 26, 1990).

QALY is pronounced to rhyme with “holly.” Such a unit has also been referred to as “well-years” or “health state utilities.” For employment of these three respective terms, see Williams A. , “Economics of Coronary Artery Bypass Grafting,” British Medical Journal: 326 (August 3, 1985);, Kaplan R. and Bush J. , “Health-Related Quality of Life Measurement for Evaluation Research and Policy Analysis,” Health Psychology 1: 61 (January, 1982); and Torrance G. , “Measurement of Health State Utilities for Economic Appraisal: A Review,” Journal of Health Economics 5: (March, 1986).

Hadorn D. , “The Oregon Priority-Setting Exercise: Quality of Life and Public Policy,” Hastings Center Report 21 (3): 11 suppl. (May-June, 1991). The Oregon Commission worked most closely off the model developed by Kaplan and Bush, supra note 7, thought it most often referred to the units as QALYs, not Kaplan's and Bush's well-years.

Hadorn , supra note 8, p. 14 suppl., and Rosser R. and Kind P. , “A Scale of Valuations of States of Illness: Is There a Social Consensus?” International Journal of Epidemiology 7: 347 (fall, 1978).

The 0.6 QOL rating is roughly that extrapolated by Churchill D. Morgan J. and Torrance G. , “Quality of Life in End-Stage Renal Disease,” Peritoneal Dialysis Bulletin 4: 20 (January-March, 1984).

8.0 QALY for $60,000: 2.0 QALYs more than 6.0 produced by dialysis.

Saying hip replacements improve QOL from 0.9 to 1.0 is my own hypothesis. I base it on the disability/distress map in Rosser and Kind, supra note 9, p. 349, and in Kind P. Rosser R. and Williams A. , “Valuation of Quality of Life: Some Psychometric Evidence,” in Jones-Lee M. (ed.), The Value of Life and Safety (North-Holland Publishers, Leiden, Netherlands, 1982), pp. 159–170.

Harris J. , “QALY fying the Value of Life,” Journal of Medical Ethics 13: 117 (1987). Unfortunately Hadorn, supra note 8, at p. 16, brushes aside this difficult problem by making the unhelpful comment that handicapped people would surely value highly a procedure that would remove their handicaps. They may still care deeply to live, however as much as people with high QOL do. We have to dig deeper.

Used, for instance, by Churchill Morgan and Torrance , supra note 10.

Or how many people in a better state of illness would have to be cured for one to think the situation better than curing a smaller number of patients in a worse-off condition? Both questions are used by Rosser and Kind, supra note 9, p. 350.

Used as the main question by Rosser and Kind, supra note 9, p. 350. The term “direct ratio” is mine; “ratio scaling” is used by Torrance , supra note 7, p. 25.

I do not expose myself to having no chance of having my life saved if I should ever turn out to be the victim with a very low QOL. Depending on the cost of the treatment, the cost per QALY of saving me might still be less that the cost per QALY of saving someone else with higher life quality prospects with a more expensive treatment. Because of this it is impossible to say just how much less is my chance of being saved as a low QOL patient if QALYs are used as a primary allocation method.

Rosser and Kind , supra note 9, p. 350, come remarkably close to such a QALY-bargain question despite their initial use of the rather weak direct ratio question. They laudably supplemented their main direct ratio question with both an equivalence question and the clarification that responses “will define the proportion of resources…that you would consider it was justifiable to allocate for the relief of a person in the more severe state as compared with the less ill.”

Hadorn, supra note 8 at p. 14 suppl., says only that the Oregon subjects queried were asked to “estimate the degree to which each problem would reduce overall quality of life.”

I have not here pursued the somewhat different matter of the connection of the questions asked in generating QOL rankings to trade-offs between QOL improvement for one person and lifesaving for another. Those trade-offs are a somewhat more difficult case for QALYs than the intra-lifesaving ones. Whom we should select for initial QOL-adjustment questioning is also a thorny issue, though generally I surmise that we should choose mainly people with some direct experience with the illness states we are trying to assess. See Menzel, supra note 1, pp. 87–91.

Harris J. , “More and Better Justice,” in Bell J. and Mendus S. , eds. Philosophy and Medical ‘Welfare (Cambridge University Press, Cambridge, England, 1988), at p. 87.

Menzel , supra note 1, p.89.

Harris , supra note 21, p.87.

O'Donnell M. , “One Man's Burden, British Medical Journal 293 (6538): 59 (July 5, 1986). For a persuasive reply to other aspects of O'Donnell's attack on QALYs, see Williams A. , “Letter,” British Medical Journal 293 (6542): 337 (August 2, 1986).

Menzel , supra note 1, pp. 116–128. See also related points in Menzel P. , Medical Costs, Moral Choices: A Philosophy of Health Economics for America (Yale University Press, New Haven, 1983), pp. 61–70 and 81–103.

Menzel , supra note 1, pp. 119–126.

A sophisticated version of this argument has been articulated by Daniels N. , Just Health Care (Cambridge University Press, Cambridge, 1985), and Daniels N. , “Fair Equality of Opportunity and Decent Minimums: A Reply to Buchanan,” Philosophy and Public Affairs 14 (1): 106–110 (1985). He defines illness and disease as deviations from “the natural functional organization of a typical member of a species.” A person has a health care need when care is necessary to achieve or maintain that “species-typical normal functioning.” Maintaining it is not important simply because it is necessary for satisfying a person's desires. Health care's role is something further: Preserving or restoring the “normal opportunity range,” the array of life plans that reasonable people in a particular society construct. We focus most clearly on the equal opportunity component of this argument if we grant several of its other debatable moves. Suppose there is a fundamental moral difference between disease/disability and individual shortages in natural talent, and that the former ought to be remedied but the latter need not be. And suppose that “biomedical need” requires no normative judgments that beg the question of health care's priority.

Westen P. , “The Concept of Equal Opportunity,” Ethics 95: 837 (1985).

Menzel , supra note 25, pp. 92–93.

For how to handle sonic remaining problems here, see Menzel, supra note 1, pp. 126–28.

The larger point here about rationing care for the poor in the light of our government's larger Medicare and tax subsidy support for the non-poor is made by Dougherty C. , “Setting Health Care Priorities: Oregon's Next Steps,” Hastings Center Report 21 (3): 1 supp. (May-June, 1991). As to the 40 percent figure, note that employer-paid premiums are excluded entirely from taxable income: From the employee's 15–33 percent federal income tax and 7.8 percent Social Security tax, from the employer's 7.8 percent Social Security match, and from any state and local income taxes.

For a sensitive discussion of whether that is the case, see Daniels N. , “Is the Oregon Rationing Plan Fair?,” Journal of the American Medical Association 265 (17): 2232 (May 1, 1991).

Hadorn , supra note 8, p. 11 suppl.