The Corner

Health Care

Disability Rights Activists Sue Cuomo over Ventilator Discrimination

New York Governor Andrew Cuomo speaks at a daily briefing at North Shore University Hospital during the coronavirus outbreak in Manhasset, N.Y., May 6, 2020. (Brendan McDermid/Reuters)

Not Dead Yet and other disability rights organizations have filed a class action lawsuit against New York governor Andrew Cuomo alleging illegal discrimination in a plan formulated by the state to ration ventilators. From the complaint:

9. The Guidelines created wide-spread fear among chronic ventilator users because the Guidelines permit hospitals to requisition patients’ personal ventilators and reallocate them to others deemed more likely to survive.

In other words, if a ventilator using patient is admitted to the hospital, if there is a ventilator triage, the disabled person’s existing breathing assistance could be removed to benefit another patient.

Unsurprisingly, disabled people became terrified during the COVID emergency, leading to not seeking medical care for fear of losing their ventilators:

10. Chronic ventilator users, including the Plaintiffs, saw articles and social media posts shared among their friends, classmates, and community members about the Guidelines and  the risk of having their personal ventilators taken away if they sought acute medical care in a hospital.

11. Plaintiffs and other chronic ventilator users reported that they would not seek acute medical care during the pandemic for fear of being forcibly extubated, which would lead to their deaths.

The complaint alleges that the state’s triage guidelines do not allow the triage committee to meet the patients whose ventilators would be taken, and base the decision solely on clinical data that can be prejudicial to people with disabilities:

42. The Guidelines use a multi-step process with a Sequential Organ Failure Assessment (SOFA) score to determine which patients will have access to a ventilator during a time of triage

43. A SOFA score is a number used to track a person’s status during an intensive care stay that adds points based on clinical measures of the function of six key organs and systems: lungs, liver, brain, kidneys, blood clotting, and blood pressure.

44. Chronic ventilator users automatically have reduced SOFA scores because their disabilities significantly impair the functioning of key organ systems such as the lungs, among others.

If I were disabled, I’d be terrified too. Moreover, given Cuomo’s indifference to the safety of elderly people in nursing homes in the early days of the pandemic, there seems more than ample reason for concern.

Triage generally involves questions of survivability, during which awful choices must sometimes be made. At the same time, each patient should be judged equally with every other patient and not discriminated against in any way based on “quality of life” considerations.

As I read the complaint, there is a fear that survivability can also include invidious attitudes toward people with disabilities. It will be interesting to see how the facts are developed going forward.

Thank goodness there are now more than enough ventilators to go around now. Hopefully the terror expressed is more theoretical than real.

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