The resurging COVID-19 pandemic has reawakened challenges for patients and physicians—ones we all hoped were over—and presented stressful situations for patients and providers. Hospitals in some states, particularly those with lower vaccination rates, have faced levels of urgent illness that have required procedures, including cancer treatments, to be delayed.1 What should oncologists do when pandemic circumstances prevent patients from receiving procedures as planned or cause other delays or interruptions in medical care?
Govind Persad, JD, PhD
Quelling the Pandemic
The best answer, but one that is difficult to achieve in the short term, is to reduce the strain the pandemic is placing on health systems. This is challenging for medical practices, which are often limited to reaching their own patients. But oncologists can work to advocate for public health measures that prevent hospital systems and other systems from being overstretched.
One such public health measure endorsed by medical societies, including ASCO, the American Society for Radiation Oncology, and the American Society of Hematology, among others, is vaccine requirements for all health-care workers.2 This is particularly important given that oncology patients often become immunocompromised during treatment. Practices should give their employees time off to receive vaccines and should take advantage of federal funding that has been set aside for that purpose, as well as pushing for states to further support these efforts. Increasing vaccination rates will not immediately address the crunch on medical facilities, which face pressure from people who have already been infected. However, it will help stem the tide in the future, particularly because shortage of “hospital beds” more often translates to shortage of skilled workers available to staff medical facilities.
Oncology practices and oncologists should also work together and share strategies for best practices in communicating with patients who may have questions about vaccination or who have family members who remain unvaccinated. Oncology may be an important avenue for emphasizing the societal importance of vaccination for protecting people who are medically vulnerable, such as patients with cancer. Almost everyone knows someone with cancer; emphasizing that others who become vaccinated can help protect community members with cancer and reduce the strain on health systems that lead to delayed surgeries, chemotherapy, and other needed procedures is an important message to convey.
Prioritizing Health-Care Resources Fairly
Ethicists, scholars, and medical organizations have published guidance on how to prioritize oncology procedures when hospital systems are strained.3,4 Guidance typically advocates prioritizing procedures whose delay would result in greater harm. When delay will present a risk of harm no matter what, however, it is difficult to ethically justify prioritizing a near-term harm over preventing a more serious harm in the future. Providers should advocate to ensure that cancer treatment for patients who will suffer if their treatment is delayed is not assigned lower priority than treatment for acute conditions such as infection with COVID-19. Patients should not be assigned a higher or lower priority merely based on their underlying condition, as opposed to how much they are expected to benefit from immediate treatment and how much their condition is expected to deteriorate while waiting.
Oncology patients and other patients whose emergent needs are less externally visible may suffer from prioritization arrangements that unfairly prioritize patients with COVID-19 over others. It may be advisable to work with ethics committees and hospital systems to develop procedures that do not disadvantage patients whose poor outcomes are less visible. Ethics committees and other services, such as social work and counseling, should also work to assist staff who are experiencing moral distress from involvement in delayed or otherwise substandard care necessitated by the COVID-19 pandemic.
In the longer term, questions have been raised about whether vaccinated patients should be prioritized for scarce treatment slots.5 This is not a question an individual medical practice should settle for itself. Rather, practices should push states to develop guidelines for prioritization that are responsive to public values, and to implement those guidelines when they are needed rather than pressing hard decisions onto individual medical practitioners or pretending that scarcity does not exist. However, providers must avoid ad hoc decisions based on vaccination status, notwithstanding the stress of an ongoing emergency. If vaccination status is ever used as a basis for prioritization, it must be pursuant to a properly adopted protocol, not done ad hoc at the bedside.
Legally, many states developed guidance during the pandemic on liability protection for reasonable response to COVID-19, and much of this guidance remains in effect. This guidance should protect oncology providers who act in accordance with it from charges that they are performing medicine below a reasonable standard of care. Federally, the Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals and other facilities with dedicated emergency departments to stabilize patients who arrive in medical need, but EMTALA does not apply to facilities without dedicated emergency departments. This may make specialized cancer centers less likely to be overwhelmed by patients with COVID-19, raising additional ethical concerns given that these centers tend to be sited in more advantaged locales.
Oncology may be an important avenue for emphasizing the societal importance of vaccination for protecting people who are medically vulnerable, such as patients with cancer.— Govind Persad, JD, PhD
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Protecting Patients From COVID-19
Whether steps can be taken to protect patients from contracting COVID-19 at appointments or in the hospital presents a different question. Practices could consider scheduling arrangements that reduce the risk of spread from unvaccinated individuals. Some pediatric practices have excluded unvaccinated patients, although others argue that this exacerbates viral spread.6
Many practices may be considering whether to maintain or reinstate limits on patient companions. This approach may be tempting, given that companions often do not seem strictly necessary and each person in a space increases the risk of COVID-19 spread. However, the additional risk of a vaccinated and properly masked companion is low, and the benefit to patients may be high. Practices should seriously consider permitting a companion, especially in contexts where a vulnerable patient may struggle without one.7 There is evidence that the presence of a companion may improve medical care and patient comfort.8
Conclusion
Much of the work needed to combat the returning pandemic must be done at the community, state, or federal level. Oncologists and oncology patients cannot ethically be asked to shoulder the burden alone. However, when that burden falls on oncologists, some of the suggestions presented here may help.
Dr. Persad is Assistant Professor at the University of Denver Sturm College of Law and Greenwall Foundation Faculty Scholar in Bioethics.
DISCLOSURE: Dr. Persad has received grant funding from the Greenwall Foundation and personal fees from the World Health Organization.
REFERENCES
1. Paryani NN: Opinion: Unvaccinated covid patients are straining hospitals like mine, where I had to turn a cancer patient away. The Washington Post, August 21, 2021. Available at www.washingtonpost.com/opinions/2021/08/21/how-unvaccinated-pandemic-threaten-everyones-health. Accessed September 17, 2021.
2. Emanuel EJ, Skorton DJ: Mandating COVID-19 vaccination for health care workers. Ann Intern Med. July 30, 2021 (early release online).
3. DeBoer RJ, Fadelu TA, Shulman LN, et al: Applying lessons learned from low-resource settings to prioritize cancer care in a pandemic. JAMA Oncol 6:1429-1433, 2020.
4. American College of Surgeons: Recommendations for Prioritization, Treatment and Triage of Breast Cancer Patients During the COVID-19 Pandemic: Executive Summary, posted March 25, 2020. Available at www.facs.org/quality-programs/cancer/executive-summary. Accessed September 17, 2021.
5. Marcus R: Opinion: Doctors should be allowed to give priority to vaccinated patients when resources are scarce. The Washington Post, September 3, 2021. Available at www.washingtonpost.com/opinions/2021/09/03/doctors-should-be-allowed-give-priority-vaccinated-patients-when-resources-are-scarce/. Accessed September 17, 2021.
6. Alexander K, Lacy TA, Myers AL, et al: Should pediatric practices have policies to not care for children with vaccine-hesitant parents? Pediatrics 138:e20161597, 2016.
7. Leiter RE, Gelfand S: Even during a pandemic, hospitals must make family visits and communication the standard of care. STAT, January 9, 2021. Available at www.statnews.com/2021/01/09/even-during-a-pandemic-hospitals-must-make-family-visits-and-communication-the-standard-of-care/. Accessed September 17, 2021.
8. Mitchell J, Hawkins J, Williams EDG, et al: Decoding the role of companions in supporting the health communication of older African-American men with cancer. J Patient Exp 7:324-330, 2020.
Editor’s Note: This commentary is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.
