Ethics in Liver
Transplantation
Resident’s Lecture
15 June 2010
Paul H. Hayashi, MD, MPH
Patient Summaries
WD
CN
JU
CB
KN
57 yo female
with HCV
after raped and
transfused
26 yo male,
school
teacher,
Tylenol OD.
18 yo male,
student,
?Tylenol
mishap with
psych and drug
use history
32 yo male,
prisoner with
genetic liver
disorder
73 yo woman
with reaction
to herbal
product;
functional and
working
U.S. liver transplant list
Scarcity
of Donated Livers
Figure 1
20000
18000
16000
14000
12000
patients 10000
listed
deaths
OLT
8000
6000
4000
2000
0
91
94
97
year
2000
2003
Liver Transplant Allocation 101

Patients prioritized by MELD score:
Model of End-stage Liver Disease
 Based on 3 lab values

• INR, creatinine, bilirubin
Entered into formula to give score
 Whole numbers from 6 to 40

• 6 = normal person
• 40 = 3-4 week mortality approaches 100%
Unique Factors in Transplantation

Real time triage & allocation of scarce resource

Few other examples in US medicine
• Mass casualty/combat field medicine
• Vaccine shortage

Unique stakeholders



Donor (deceased or living)
Donor family or loved ones
Potential donors: general public
Ethical Principles
Beneficence: doing good
 Non-malfeasance: avoiding harm
 Autonomy: respecting patient decisions
 Justice: fairness
 Utilitarianism
 Communitarianism

Justice
Webster’s definition: the quality of being
just, impartial, or fair (the principle or
ideal of just dealing or right action)
 Various forms of justice


To each according to need.
• Who is most in need?

To each according to fair share.
• What constitutes fair share?
Justice

In western, democratic societies, the rights of the
individual is emphasized.




Personal freedom and choice valued.
The individual most likely to die is most in need.
Each individual should have fair and equal claim.
Example: At same MELD, 28 year old with
Wilson’s disease and 60 year old with chronic
hepatitis C use have equal listing and chance at
transplant.
Utilitarianism

Webster’s Definition: a doctrine that the
useful is the good and that the
determining consideration of right
conduct should be the usefulness of its
consequences; specifically : a theory that
the aim of action should be the largest
possible balance of pleasure over pain or
the greatest happiness of the greatest
number.
Communitarianism

A counterbalance to western, individual primacy
based theory of justice.


Justice and individual rights and freedoms must be
couched in the society in which they are rendered
and reside.
“…our interest in community may…conflict with
our vital interest in leading freely chosen lives, and
the communitarian view is that the latter does not
automatically trump the former in cases of conflict.”
• Stanford Encyclopedia of Philosophy
(http://plato.stanford.edu/entries/communitarianism) Accessed
10/19/09
Communitarianism

An organ is a uniquely precious community resource:



Ironic: donated in the midst of community loss
Immediate: allocation decisions made in 1-3 hours.
Tangible, living tissue
• unlike health care spending bills or prosthetics



Honored: donation viewed as “heroic” by community
Should communitarian ethics have more sway?
Perhaps, the 28 year old with Wilson’s, father of three,
and gainfully employed should go ahead of the 60 year
old, former IV drug user, loner, on disability with
hepatitis C, even though their MELD scores are equal.
Patient Summaries
WD
CN
JU
CB
KN
57 yo female
with HCV
after raped and
transfused
26 yo male,
school
teacher,
Tylenol OD.
18 yo male,
student,
?Tylenol
mishap with
psych and drug
use history
32 yo male,
prisoner with
genetic liver
disorder
73 yo woman
with reaction
to herbal
product;
functional and
working
Case: CB

32 yo man with cirrhosis due to non-HFE
iron overload
• Encephalopathy, ascites
• MELD 22




In prison since age 18 murder with 7 years
left on sentence.
(+) drug use at time of incarceration.
(+) opiates at clinic visit--? Source
Father petitioning Gov. Perdue for early
releast based on medical need.
Case: CB
Patient seen in Hepatology Clinic and
denied transplant evaluation based on
drug history.
 X-jade suggested
 Not seen again in UNC clinics
 Admitted to UNC with worsening liver
failure and dies 1.5 years after initial
evaluation by UNC Hepatology

Policies of US transplant programs regarding liver
transplantation in prisoners
Fix OK et al. Hepatology 50:338A 2009 (abs.)

Liver failure on the rise amongst prisoners


HCV rate 10x the general population
Survey of all 104 programs
67 responded
 Over the last 5 years

• 46 (69%) evaluated at least one prisoner
• 17 (25%) listed at least one prisoner
• 12 (18%) transplanted at least one prisoner
Background

1960’s: shortage of dialysis machines



“God Squads”
1973: Setion 2991, Social Security Amendment: Medicare covers dialysis
1976: Estella vs. Gamble

Secured medical are to inmates under the 8th amendment.
By LESLEY OELSNER
December 1, 1976, Wednesday
WASHINGTON, Nov. 30 The Supreme Court ruled today that "deliberate
indifference" by prison officials to serious medical needs of an inmate
violates the Eighth Amendment ban against cruel and unusual punishment
and gives the inmate ground to sue the officials in Federal court
Inmate Fears Death Because Prison
Won't Finance Transplant
By GINA KOLATA
Published: February 5, 1994
“…Should the nation provide expensive care and scarce organs to convicted felons?
Can it justify a system in which an estimated one in four employed Americans cannot
have a transplant because they are uninsured or underinsured, yet ask the Bureau of
Prisons to provide them for prisoners? …”
“…Dr. Arthur Caplan, director of the Center for Bioethics at the University of
Minnesota, …said "For me, it's open and shut….It's absolutely wrong to make
judgments about past behavior, criminal conduct, moral worth, indictments, charges or
convictions."
Inmate Fears Death Because Prison
Won't Finance Transplant
By GINA KOLATA
Published: February 5, 1994
“…Ethicists and the public eventually found it so distasteful to rate the worthiness
of a human life that, Dr. Dubler said, "the clear movement since then has been to
establish rigorously abstract criteria so that the worth of an individual is not factored
in" when deciding who should get organs or other lifesaving medical treatments…”
SHOULD A CRIMINAL RECEIVE A HEART TRANSPLANT?
MEDICAL JUSTICE VS. SOCIETAL JUSTICE
LAWRENCE J. SCHNEIDERMAN AND NANCY S. JECKER
Departments of Family and Preventive Medicine and Medicine,
University of California, San Diego, School of Medicine,
La Jolla, California 92093-0622, U.S.A.
Department of Medical History and Ethics, University of Washington,
School of Medicine, Seattle, Washington 98195, U,S.A.
Theoretical Medicine 17: 33-44, 1996

Two fields of justice defined in opposition:

Medical Justice
• Hippocratic oath

Societal Justice
• “decent” and “rudimentary” levels of health care
Medical justice argues for
transplanting prisoners

“I swear … to follow the method of
treatment which, according to my ability and
judgment, I consider for the benefit of my
patients.”
• Hippocratic Oath

Arguments against bedside “rationing”




Risk of error, inconsistency, being hidden
and manipulated.
Undermines patient trust in physicians
Society at large has the “mandate” to decide
Physicians not equipped to “do it right.”
Schneiderman et al. Theorectial Medicine 1996
Societal justice and
transplanting prisoners
Schneiderman LJ et al. Theorectial Medicine 1996
Prisoners should not be punished again by
denying health care, but…
 “What level of health care are we talking
about anyway?”

Is the prisoner a full member of society
still?
 Would a “decent minimum” only be fair.

• e.g. Illegal immigrants are largely not included in the
current health care debate—they will likely stay at a
“rudimentary minimum”.
What did the authors conclude?
Society will have to decide
 Suggested two lines be drawn:


The limits of a “decent minimum” of care.
• Treatments that may ‘harm’ others by
deprivation (e.g. transplant perhaps should be
excluded.

The level of criminal offense
• Heinous crimes may only be entitled to the
“decent minimum” of care only.
Schneiderman LJ et al. Theorectial Medicine 1996
Moving Forward

“The hottest places in Hell are reserved for
those who, in a time of moral crisis, maintain
neutrality.”
• The Devine Comedy (The Inferno). Dante
Alighieri


Have we let the courts decide for us?
“Physicians cannot avoid taking
responsibility for stewardship over organ
allocation and must play a primary role…”
• West JC, et al. Seminars in Dialysis, 2003
More to the point…

If confronted with a convicted murderer in
for life needing a transplant, what will I do?


Legally we are bound to evaluate (w/o
societal justice or value in mind), list if
appropriate and transplant when able.
Is there a fundamental ethical norm or
stance to NOT transplant?

If so, is it strong enough to stand in the
face of individualism?
The Underpinnings of Western
(democratic) Individualism

Emanual Kant


The “original position” (1781)
John Rawls

The “unencumbered self”
• Equal basic liberties for all
• Only those social and economic inequalities that
benefit the least advantaged members of society.

Lines up well with basic tenets of the
Hippocratic Oath
Communitarianism

A counterbalance to western, individual primacy
based theory of justice


Justice and individual rights and freedoms must
be couched in the society in which they are
rendered and reside.
“…our interest in community may…conflict
with our vital interest in leading a freely chosen
lives, and the communitarian view is that the
latter does not automatically trump the former in
cases of conflict.”
• Stanford Encyclopedia of Philosphy
(http://plato.stanford.edu/ accessed 10/10/2009).
Unusual Features of Transplant

Triage based on medical and societal justice

Few other examples in US medicine
• Mass casualty/combat military medicine
• Vaccine storage
• “Orphan diseases”

Unique stakeholders
•
•
•
•
Donor (deceased or living)
Donor family or loved ones
General public (donor pool)
Transplant team
Communitarianism and
Transplant

An organ as a unique community asset:
• Irony: donated in the midst of community loss
• Honored: donation viewed as heroic and highly
valued

“organs procured within a community should
be considered assets of the community…”
• Resolution 8, 1st International Congress on
Ethics in Organ Transplantation

Should communitarian ethics have more
sway?
What would the “orignial position”
say about this conflict?
“The question of whether or not Mr. Murphy is entitled to a heart
transplant then becomes generalized as: If I were to enter a society in
which certain life-saving medical treatments were limited, would I
want persons who have already taken benefits away from those who
have attempted to live justly to be eligible for further benefits, such as
these limited treatments?
It is hard to imagine that persons in an original position would
answer affirmatively.”
Schneiderman et al. Theorectial Medicine 1996
(italics and underline added)
Equal or Fair?

“We have always had this idea, which is
simplistic, that justice requires treating
everyone, everywhere exactly the same
way. Justice requires no such thing [but]
simply requires us to treat people fairly.”
• Ezekiel Emmanuel, Chief of the Bioethics
Branch, NIH, New Yorker, 2003.
Hippocratic Oath


“I will apply, for the benefit of the sick, all
measures that are required.” However, this phrase
should not be misused as a shield behind which we
shirk societal responsibility because…
“I will remember that I am a member of society,
with special obligations to all my fellow human
beings, those sound of mind and body as well as the
infirm.”
• Quoted phrases from Hippocratic Oath – Modern Version by
Louis Lasagna, Academinc Dean of the School of Medicine,
Tufts University, 1964.
• Unquoted phrase and italics by Paul H. Hayashi, MD, MPH
Looking East

Confucianism
Social order and self-discipline are valued
 “men are responsible for their actions and
especially for the treatment of others”
 “..we learn the value of social strictures
that make an orderly society possible.”

• Stanford Encyclopedia of Philosphy
(http://plato.stanford.edu/ accessed 3/7/2010).
From the web...
Newsletter
China’s Grim Harvest
Page
last updated
at Apr
13:32
ByBBC
Andrea
Gerlin
Sunday,
23,GMT,
2006
Wednesday, 26 August 2009 14:32 UK
May/June
2007
* Volume
Number 4
China's President isn't used to being heckled.
But last
Thursday,
as 13
Hu *Jintao
addressed reporters at the White House during his U.S. visit, a woman from a
newspaper
by the meditation
sect Falun
Gong
loudly interrupted
him, calling him
Dr. run
Jeffrey
Crippin’s
AST
Presidential
Address
ewsletter
a "murderer" and threatening that his days were numbered. Among other allegations,
China
admits
deathisrow
organ
China
executes
morehospitals
people than
any other nation.
Falun
Gong,
which
banned
in use.
China,
accuses
Chinese
of harvesting
China
is trying
to
away
from
the
use of
executed
prisoners
as the
“The
use
ofmove
donor
organs
from
executed
prisoners
is major
organs
from
executed
prisoners
— including
some
of the sect's
own members
—
source
of
organs
for
transplants.
and selling
them for transplants.
deplorable
practice. As a society and as a field, we
N
should do whatever we can to prevent such atrocities.”
http://www.time.com/time/magazine/article/0,9171,1186533,00.html#ixzz0hVS2DLLb (accessed 3/7/2010)
http://www.bbc.co.uk/
What side of the slippery slope are you on,
anyway?
Are
you crazy? Giving
precious
您是否是疯狂的？
给珍贵的器
organs
to convicted 停止那!
murderers?
官被判罪的凶手？
Stop that!
Are you crazy? Executing
prisoners for organs? Stop that!
Patient Summaries
WD
CN
JU
CB
KN
57 yo female
with HCV
after raped and
transfused
26 yo male,
school
teacher,
Tylenol OD.
18 yo male,
student,
?Tylenol
mishap with
psych and drug
use history
32 yo male,
prisoner with
genetic liver
disorder
73 yo woman
with reaction
to herbal
product;
functional and
working
What would Spock and Kirk
say?

“the needs of the many outweigh the needs of the few.”
• Capt. Spock in “Wrath of Khan” – 1982

“Because the needs of the one … outweigh the needs of the
many…”
• Adm. James T. Kirk in “The Search for Spock” -- 2004
Utilitarianism
Outcomes of a transplant are emphasized.
 Maximizing quality life years gained.



Goal: transplant those most likely to die
and have long quality life afterwards.
Example: Transplanting a 28 year old
with Wilson’s disease over the 60 year
old with chronic hepatitis C, despite equal
MELD.
Five Cases for Discussion
All cases are true and were seen by the
University of North Carolina Liver
Transplant Center in the last 3 years.
Case 1: WD







57 yo woman. Raped and impregnated by that
rape at age 29.
Required several units of blood during
therapeutic abortion.
Acquired chronic hepatitis C from transfusion.
Now cirrhotic with signs of liver failure.
MELD 12-15; (+) ascites; (+) encephalopathy
Married x 36 years; two children; worked up till
recently; husband very supportive.
Non-smoker. No alcohol whatsoever.
Case 2: CN






26 yo man took Tylenol overdose after break up of a
relationship.
Able to get a reasonable psychiatric evaluation.
Patient expresses tearful regrets over his action prior to
going into coma
Up and coming teacher, cited by his school for most
improvement in his class of low socioeconomic and low
achieving grammar school students.
Strong testimonials of support from colleagues, friends and
family.
No prior psychiatric history or suicide attempts.
Case 3: JU





18 yo student with ?therapeutic mishap: Tylenol
overdose for an unrelenting headache, but took
all 37 tablets over an hour or less. Claims no
suicidal intent.
Acute liver failure; mental status: sleepy but
awakens and conversant.
(+) history of attention deficit disorder,
depression and ?bipolar affective disorder.
(+) for cannabis use; denied any other drug use
history.
Father is security guard and quite supportive.
Case 4: CB






32 yo prisoner in since age 18 for murder; 8
more years on sentence.
Non-HFE related hemochromatosis cirrhosis
Ascites, encephalopathy, varical bleed, ascites.
MELD 22; Childs B/C
(+) drug abuse just prior to incarceration.
Father strongly advocating for early release and
transplant; petitioning the governor.
Case 5: KN





73 yo Viet Namese woman with longstanding
HCV cirrhosis.
Stable until took Chinese herbals that give her
acute liver failure (ALF)—oddly she is HCV
RNA negative with this ALF flare.
No comorbidities whatsoever; excellent
functional status; working full time at TJ Max.
No alcohol or drugs
Widowed but lots of family around in support.
Patient Summaries
WD
CN
JU
CB
KN
57 yo female
with HCV
after raped and
transfused
26 yo male,
school
teacher,
Tylenol OD.
18 yo male,
student,
?Tylenol
mishap with
psych and drug
use history
32 yo male,
prisoner with
genetic liver
disorder
73 yo woman
with reaction
to herbal
product;
functional and
working
Policies of US transplant programs
regarding liver transplantation in prisoners.
(abstract presented, AASLD, 2009)



Liver failure on the rise amongst prisoners
HCV rate 10x the general population
Survey of all 104 programs


67 responded
Over the prior 5 years:



46 (69%) evaluated at least one prisoner
17 (25%) listed at lese one prisoner
12 (18%) transplanted at least one prisoner.
Final Discussion:

Now that you’ve hear about and discussed
all 5,

Who would you not even list?
• Explain to those denied why you are not going
to list them.

Of those you list, how would you
prioritize assuming they all had equal
MELD scores?
• Explain to each patient why the certain
person(s) is/are ahead of them in line.
Ethical Principles
Beneficence: doing good
 Non-malfeasance: avoiding harm
 Autonomy: respecting patient decisions
 Justice: fairness
 Utilitarianism
 Communitarianism
