Is Gaming the Transplant List an Ethical Dilemma?

By Shailin Thomas

NPR recently published a thought-provoking piece discussing an ethical dilemma doctors face when treating patients in need of organ transplants. Transplant list priority is designed to depend upon the relative sickness of patients, allocating organs to those who need them most. However, instead of lab results or other direct measures, the list uses the treatment a patient is receiving as a proxy for her condition. As a result, doctors have the ability to move their patients up the list by prescribing — or over-prescribing — more extreme and invasive treatments.

It’s understandable why this temptation exists — doctors go into medicine to heal, and I imagine it’s difficult to refrain from taking an action which could very well save a patient’s life. But should this be an ethical dilemma?

Bumping a patient up the transplant list could certainly save a life, but that life could come at the expense of another’s. The problem is that organ transplants are inherently zero-sum — if one patient goes up on the list, another must come down. If one person gets an organ, that means another doesn’t. Furthermore, over-treating to influence transplant priority has consequences that reach beyond any individual patient, potentially furthering inequality in the transplant system and contributing to unsustainable health care spending.

Influencing transplant priority by prescribing unnecessary, intensive treatment may exacerbate the inequality already baked into the transplant system. Transplant lists are localized, and organs donated in particular areas are made available to local medical centers before being offered to hospitals elsewhere. This means that transplant lists in some regions move faster than those in others. Patients are allowed to register for more than one list, but doing so is expensive, requiring the ability to travel quickly around the country and pay the tens of thousands of dollars it costs to receive the necessary tests for multiple transplant list approvals. A Columbia University study published last year found that patients on multiple lists tended to be wealthier and get transplants faster than their single-list counterparts.

The patients that can be moved up the transplant list through over-treatment will tend to be those with more robust insurance, who have better access to treatment facilities with more intensive care capabilities. In other words, they’ll tend to be wealthier than patients without access to the same coverage or treatment options. Wealthier patients can already get transplants more quickly  — and over-treatment allows them to ascend those lists even faster. While it’s true that some over-treated patients will not be in the pool of those wealthy enough to afford multiple transplant listings, the practice still furthers the distribution of organs away from the under-insured who can’t afford or access the extra care.

Even if the benefits of ascending the transplant list through over-treatment were distributed equitably, it still puts unnecessary burden on a health care system struggling under its own weight. It’s no secret that health care spending in the United States is out of control, and one of the main drivers of spending growth is over-utilization. From emergency room visits for non-emergency care to defensive diagnostic testing, many unnecessary medical services are ordered and paid for every day. There are many reasons for this, and it has garnered significant attention in the fight to control health care spending. Normalizing the practice of over-treating patients to move them up the transplant list piles unnecessary costs onto an already strained system, and because the treatment needed to bump a patient up the list is intensive and often invasive — sometimes requiring stints in the ICU — it’s also incredibly expensive.

New rules further specifying the treatment needed to advance on the transplant list are being considered in order to reduce this practice, but they still rely on treatment as a proxy for need, and thus may only lead to increasingly extreme over-treatment. At the end of the day, no system will be tamper proof. There will always be a way to influence a patient’s chances of receiving a transplant. So what do we do?

Instead of trying to foolproof the transplant list, perhaps we should push for a cultural shift in which the possibility of increasing transplant priority through over-prescription isn’t seen as a moral dilemma, because providers and patients recognize an obligation to the health care system as a whole. Certainly physicians should be zealous advocates for their patients, and there should be avenues through which a physician can make appeals on behalf of her patients if she feels the current priority criteria don’t fully capture their needs. However, when viewed in light of the negative impact it can have on the entire health care system — not to mention the immense cost it has on the patients that will inevitably be bumped down the list as others are bumped up — maybe the decision not to increase a patient’s transplant priority through over-treatment shouldn’t be such a hard one.

More broadly, this holistic perspective would help in many areas of health care currently plagued by misaligned incentives. Antibiotics, for example, are over-prescribed to appease individual patients at the risk of contributing to antibiotic resistance, and the practice of defensive medicine continues to proliferate, undermining efforts to reduce overall health care spending. The more health care providers, administrators, and patients factor these broader externalities into everyday decisions, the better off the entire system will be.

Medicine is an art — the individualized craft of healing. But health care is a system — an interconnected web in which actions have consequences far beyond any one patient. Zealous advocacy on behalf of individual patients is a critical component of effective care, but perhaps it shouldn’t come at the expense of other patients or the system as a whole. As newly minted physicians recite in the Hippocratic Oath, “I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.” Over-treating for transplant priority seems out of sync with this commitment to those beyond the exam room. It’s understandable why this feels like a moral dilemma, but maybe it shouldn’t feel like one. The decisions made in the health care system impact all of us, and we need to remember that, even when — especially when — it’s difficult.

Photo credit: Army Medicine (flickr) — CC-BY-NC

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This entry was posted in Bioethics, Doctor-Patient Relationship, Health Law Policy, Organs by Shailin Thomas. Bookmark the permalink.

About Shailin Thomas

Shailin Thomas is a second year law student in a joint MD/JD program between Harvard Law School and the New York University School of Medicine. He received a B.S. from Yale University, where he studied cognitive neuroscience — exploring the anatomy and physiology behind social phenomena. His interests lie at the intersection of clinical medicine and the legal forces that shape it. Prior to law school, Shailin worked on both the administrative and clinical sides of health care, and as a research associate at the Berkman Center for Internet & Society. He is currently an affiliate of the Berkman Center and Outreach Editor for the Harvard Journal of Law & Technology. A fervent proponent of privacy and freedom of expression, Shailin has also served on the Board of Directors of the American Civil Liberties Union of Connecticut.

3 thoughts on “Is Gaming the Transplant List an Ethical Dilemma?

  1. What figured so prominently in my NPR piece – and what you didn’t touch upon in yours – was the impact of the actions of others. If I refuse to escalate care in my patient while other doctors are escalating care in theirs – and there is good reason to believe that other doctors ARE doing this – I put my patient at a disadvantage. THIS is where the dilemma emerges.

    • You’re totally right that there is a game theory dimension to this on which I didn’t touch. In the current landscape, I agree that doctors have reason to believe that they may be putting their patients at a disadvantage by not escalating care. But this is a classic tragedy of the commons — a collective action problem. No one actor has the incentive not to increase treatment, so we end up in a world where everyone does it, even if we could achieve a better state of affairs if no one did it. What I’d hope to see is a world in which we beat the collective action problem by acknowledging that the system as a whole could be better off without inflating care. You’re right, though, that I could have addressed that more explicitly. Thanks for your comment! I appreciate the dialogue!

      • Actually this doesn’t quite fit the tragedy of the commons. In that scenario, you’re talking about apportioning what is essentially a continuous commodity: more and more sheep, less and less grass per animal, they all grow thin. But transplants are functionally a binary commodity: the patient either gets one or doesn’t.

        I agree with your vision of a better state of affairs. But I have trouble seeing how this will come about without a disincentive. It might help for UNOS to put forth a statement of policy that escalating care for the purpose of advancing status on the list is unethical. This would introduce the disincentives of bad conscience and potential censure (even in the absence of punitive measures). But I see little interest among my peers. Perhaps there is a reluctance to label as unethical a strategy that many in the community may have used.

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