Heroism is Not a Plan – From ‘Duty to Treat’ to ‘Risk And Rewards’

Author

Thomas D Kirsch, MD, MPH

Publish date

February 15, 2022

The following is an editorial that can be found in a future issue of the American Journal of Bioethics.

Duty or Not?

It’s far too easy to assign broad duties to others when sitting safely at home typing on a laptop. There have been dozens of scholarly papers discussing healthcare workers’ (HCWsi) ‘duty to treat’ despite their risk of illness and death during an epidemic. One author opined that a 1/1000 chance of dying from COVID19ii is low enough that all levels of HCWs have an obligation to work. (McConnell 2020)

Relying on a deontological foundation (‘thou shalt risk your life to save others’) for an ‘essential’ societal service, particularly given human behavior, the limitations of altruism, and volunteer nature of virtue seems like poor planning. Enumerating ephemeral duties alone will not keep hospitals staffed during an epidemic. That’s not how it works in the real world, with real people facing real risks to themselves and their families. I know this because I’ve worked through influenza pandemics, in Liberia during Ebola, and now during COVID19.

The history of medical ethics reveals that there has never been consensus on the nature and scope of duty to treat during an epidemic – the concept was at best vague and rarely applied. (Zuger and Miles 1987) It wasn’t until 1847, when the American Medical Association included the following in their first Code of Ethics, that duty became paramount. (AMA 1947)

When pestilence prevails, it is their (physicians’) duty to face the danger, and continue their labours for the alleviation of suffering, even at the jeopardy of their own lives.

That passage, or any reference to the duty to treat at peril, was removed from the Code in 1957 and does not exist today.

From the HCW perspective, it’s easy to find holes in convoluted arguments that insist I should risk my life. Consider the following principles commonly used to justify a ‘duty to treat’:

· Consent/Implied consent – Except in rare employment contracts, HCWs never explicitly consent to risk their lives. Some authors argue that choosing a healthcare career is ‘implied consent.’ But there is no more inherent risk in practicing medicine (since the introduction of antibiotics) than working in an office. (US Bureau of Labor Statistics 2020a) In fact, the AMA Code was changed in 1957 because epidemics were considered ‘historical anachronisms.’ (Huber and Wynia 2004) Even if risk existed, a 21-year-old college student considering medical school is not informed or asked to consent. Additionally, multiple unforeseen, conflicting duties (marriage, elderly parents, my students) have arisen that influence my perception of duty to treat, none of which I considered when choosing a profession.

· Special training – While all physicians and nurses have significant medical knowledge, only a small percent are specifically trained to safely care for infectious or critically ill patients. Even fewer support staff receive such specialty training. My “special training” to protect me from COVID19 was watching five 30-minute online safety videos and suggestions on how to reuse my mask for days.

· Oaths and Codes – HCWs, even physicians, do not take oaths requiring risk. American medical students take a symbolic oath, most based on the Hippocratic Oath or the World Medical Association’s (2001) Declaration of Geneva – none mention taking personal risks to provide care. Some authors have found ‘implicit’ pledges accepting the risk of sickness and death in non-specific statements within existing oaths and codes. (Clark 2005) This interpretation seems a great overreach for a potentially fatal commitment. Others argue that physician and nursing ‘codes of ethics’ create a duty. The most cited are the AMA’s 1847 Code of Ethics and their Declaration of Professional Responsibility. (AMA 2001) The prior was rescinded, and the latter does not explicitly mention risk. Additionally, these codes represent the organization’s aspirations, not individuals and, most importantly, only 15% of physicians, and no other HCWs, are members of the AMA. I have, however, made a formal pledge to my wife and have implicit and explicit commitments to my children.

· Reciprocity/Social Contract – Most HCWs have no unique or specific debt to society distinct from other professions (e.g., only physician training receives government subsidies). And only physicians and nurses receive compensation beyond the median US income – other HCWs have a median hourly pay of $13.48. (US Bureau of Labor Statistics 2020b) More importantly, reciprocity/fairness requires complementary duties from society. But during COVID19, there has been little tangible societal support for HCWs – widespread PPE shortages, no government workplace safety interventions, and no consideration for protecting families. HCWs were laid-off, furloughed, and had salary reductions. Most glaring, 30% of Americans refuse vaccination and continue to fill our hospitals and infect, sicken, and kill HCWs.

Debates about duty will continue endlessly. We must turn to other ethical considerations to solve this problem.

If we call, will they come?

Altruism has bounds. There is no question that HCWs have a sense of duty. The question is ‘at what cost?’ The current healthcare workforce has spent almost two years fighting wave after wave of an unrelenting pandemic, caring for the sick and watching far too many die. Watching their colleagues die. Risks providing healthcare during a pandemic are unique and accumulative. In addition to physical harm, HCWs have suffered a greater burden in mental health and moral distress. History and science have shown that to assume that they will provide care with increasing hazard to themselves is wrong.

The history of HCWs providing care during epidemics is mixed, with tales of extraordinary heroism, but some, sometimes most, physicians refused to work. For example, Galen, the ‘father of Western medicine,’ fled plague-stricken Rome in the 2nd century CE. (Walsh 1931) When the Black Death repeatedly swept through Europe between the 14th and 17th centuries, so many

physicians fled that cities hired “pest-doctors” to provide care or enacted laws requiring that physicians stay. (Fox 1988) In 1793 as Yellow Fever engulfed Philadelphia, many physicians fled while others, including the Declaration of Independence signer Benjamin Rush, stayed to care for the sick. (Carey 1794) During the 2003 SARS outbreak, providers in Viet Nam, Hong Kong, and Canada left their jobs. (Fong 2013) And in 2014, every hospital in Liberia closed when HCWs quit after watching so many colleagues die from Ebola. (Dawson 2014)

Research has attempted to quantify whether HCWs will work during disasters and has repeatedly found that they are least likely to provide care during epidemics. A survey of New York City HCWs found 84% would respond during a mass casualty incident versus 48% during a SARS outbreak. (Qureshi, Gershon and Sherman 2005) In another survey, 28% of HCWs would not respond during an influenza pandemic if asked, and 18% would refuse even if ordered. More concerning, 1/3 would not work during a more severe pandemic. (Balicer et al. 2010) A survey in Hawaii found that only about half of physicians and nurses would continue to work during an epidemic. (Lanzilotti, Galanis and Leoni 2002)

These studies also identified variables that keep HCWs on the job, including confidence that they were safe at work, that their family was safe and cared for, and knowing their colleagues would respond with them. My colleagues and I do not decide to risk our health through a carefully reasoned analysis of ethical principles, but because we feel our employers/society are protecting our families and us and because my friends are standing with me fighting the fight. We use our ‘heart,’ not ‘head’ for moral choices. (Haidt) To influence HCW behavior requires appealing to their concerns for safety, family, and friends – not presenting reasoned ethical principles.

Beyond Duty

We need to move beyond discussions of duty-based behaviors because such actions require a type of personal heroism that is far from universal. Lynette Reid (2005) said:

… the obligation is on all of us to create and sustain a healthcare system that does not leave the provision of our care dependent upon extreme actions of self-sacrifice by a limited group.

There are always heroes, but not all can be heroes. Why should a single-parent, clinical technician working 60 hours a week in an understaffed ER earning less than $15 an hour risk their life every day for strangers? Why would a wealthy cardiac surgeon, exposed to a deadly virus, risk the lives of her children? Should HCWs incur additional monetary and psychological burdens in addition to risking their health? How many of their colleagues must get sick or die before HCWs walk away, and the entire system collapses? These are not hypothetical questions. History has repeatedly demonstrated the risk to society. SARS-CoV2 has a less than 0.5% case fatality rate but came close to breaking the US healthcare system. What about a virus that kills 1% and 50,000 HCWs? Or 5%?

Transactional, not Deontological. Explicit, not Implicit Reward

Relying on duty, values, or heroism is not an epidemic preparedness plan. The practical answers lie within the Reciprocity/Fairness principle and Transactional ethics.

Reciprocity is not a new idea in philosophy, economics, or history. The Golden Rule. Kant’s categorical imperative. Transactionalism frames every organism-organism interaction as ethical and reciprocal. Economies are built on mutual transactions. Historically, providing healthcare during epidemics has relied on transactions – from ancient Greece, through Renaissance Europe, to early America, municipalities and hospitals have contracted specific physicians to care for the infected sick. (Fox 1988)

Fairness requires that if HCWs risk their lives to provide essential services to society, then society has a duty to reimburse and protect them to the highest possible standard. First, reduce risk, but if there is risk, then there should be reward. The primary issue is safety – the risk of infection must be reduced to a minimum, for HCWs and especially for their loved ones. HCWs and their families should receive priority vaccination, PPE, and treatment, perhaps even subsidized separate housing.

But there must also be transactional incentives for working at risk. A recent article by McConnell and Wilkinson (2021) discussed two forms of compensation for essential workers used by militaries worldwide – no-fault compensation and hazard pay.

No-fault compensation reimburses those who suffer harm (become infected, disabled, or die) while providing essential societal services. ‘No-fault’ means that workers need not prove that the harm was caused in their workplace, only that the infection occurred during an epidemic. We need to know that our families are cared for if I die. In early 2020, the British government began paying £60,000 to the families of HCWs who died from COVID-19. (Cowburn 2020)

Hazard pay compensates workers for additional job-related risks and encourages them to work in dangerous conditions. It’s commonly used in risky industries, and US law requires hazard pay for federal employees and military members. (US Department of Commerce 2020) In 2020, American politicians unsuccessfully proposed a ‘Heroes Fund’ to provide essential workers up to $35,000 incentive pay. (Congressional Research Service 2020)

There is much work to do, many questions for philosophers and politicians to define the transactional space and boundaries – How do we evaluate risk? What fairness standards apply across diverse groups? Who is essential? At the heart of these is the equitable distribution of risk, reward, and scarce resources.

Conclusion

Ethical discussion of healthcare worker responsibilities during epidemics must move beyond deontological imperatives and vague implicit duties to a more utilitarian transactional approach. Defining parameters of fairness and reciprocity between society and all ‘essential workers’ is necessary to ensure that society will continue to function during a future and possibly more severe pandemic.

References

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2. American Medical Association. 2001. Declaration of Professional Responsibility. https://www.ama-assn.org/delivering-care/public-health/ama-declaration-professional-responsibility. Accessed 1 Jan 2021.

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18. US Bureau of Labor Statistics. 2020a. Injuries, Illnesses, and Fatalities, 2019. https://www.bls.gov/iif/oshwc/cfoi/cftb0332.htm. Accessed 1 January 2022.

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20. Walsh, J. 1931. Refutation of the charges of cowardice against Galen. Annals of Medical History 3(2):195–208. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7945090/. Accessed 25 December 2021. 21. World Medical Association. 2018. Declaration of Geneva. https://www.wma.net/policies-post/wma-declaration-of-geneva/. Accessed 1 January 2022.

22. US Department of Commerce, Office of Human Resource Management. 2020. Hazard Pay Differential. https://www.commerce.gov/hr/practitioners/compensation-policies/premium-pay/hazard-pay. Sept. 2020. Accessed 1 January 2022.

23. Zuger, A. and S.H. Miles. 1987. Physicians, AIDS, and Occupational Risk: Historic Traditions and Ethical Obligations. JAMA 258(14):1924–1928. doi:10.1001/jama.1987.03400140086030.

Thomas D Kirsch, MD, PhD is a Professor and Director of the National Center for Disaster Medicine and Public Health at Uniformed Services University.

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