The H1N1 Pandemic: Ethics and the Common Good

Our Story

[1] As the second wave of H1N1 flu infection was peaking in late fall of 2009, many epidemiologists concurred that, fortunately, this flu pandemic would most likely be less severe than earlier anticipated. At the same time, many health officials were highly critical of those who had been prematurely lulled into complacency following the first wave of H1N1’s impact. Though this pandemic’s “symptomatic case-fatality ratio” (percentage of those becoming ill who die) has remained lower than the three previous pandemics, tragically, there has been an unusually high number of deaths among children and young adults. At the time of this writing, one in six Americans has become ill with “swine flu” and the CDC estimates that about 10,000 H1N1-related deaths have occurred between April and mid-November of 2009. In late October President Obama issued a national emergency declaration. The pandemic is still far from over, and health officials caution that previous pandemics have produced deadly late-winter waves.

[2] Last spring, as the initial wave of the pandemic unfolded in New York City, Lutheran Medical Center (LMC), Brooklyn, experienced a sudden and severe spike in emergency department visits and admissions from the flu. Patients and gurneys lined the hallways of our Emergency Department, several neighboring schools were closed, some staff worked extra shifts, and still other staff began reporting that their own children were quite ill with the H1N1 virus. Our hospital has experienced five deaths that were directly flu-related. We noted that hospitals in the southwest and other parts of the country were even more severely affected, already running short on beds, supplies, and adequate staff.

[3] As the initial wave began to subside, several serious concerns loomed before us: What if, as in 1918, the second wave would bring still higher numbers of yet sicker patients, pushing an already overextended medical system well beyond its limits? What if we then faced the dreaded situation of insufficient supplies, whether of immunization and antiviral medications, beds, masks, or other clinical essentials? What if neighboring hospitals were also unable to handle such a surge? Pushing the scenario still further, what if we found ourselves without adequate supply of critical care resources – including ventilators and trained/credentialed ventilator staff – for those most severely ill? Finally, what about the extent of pressing need/demand for palliative and hospice care?

[4] While some external voices maintained that “it’s really just a bad flu, no need to overreact,” we could not afford to be lulled into complacency by what seemed unfounded assurances. Our leadership also realized that, if not this pandemic, we could indeed face these same hard realities in another future health emergency, including an incidence of bioterrorism. Further, given our longstanding mission, we owe the community we serve the fullest preparedness and response possible.

[5] Time was of the essence. Under the steady and effective leadership of LMC’s Chief Medical Officer, a multi-disciplinary pandemic flu steering committee was immediately formed, with multiple specialized subgroups mobilized. Both the steering committee and subcommittees met weekly for several months. Expanding upon the hospital’s Emergency Management Plan, a myriad of practical and clinical issues was addressed in creating a more specialized “Emergency Operations Plan for Highly Contagious/Highly Infectious Disease in an Outbreak or Bioterrorism.” Also addressed and enhanced was the Hospital Incident Command System (HICS), a comprehensive system providing necessary tools to advance emergency preparedness and response capabilities.

[6] Consistent with our faith-based identity and values-driven mission, we immediately turned our attention to the “surge” of ethical realities and dilemmas we could potentially face, particularly ethical and legal issues surrounding allocation of critical care resources and demand for palliative care. One of the multidisciplinary work groups was specifically tasked with addressing ethics, legal issues, and palliative care. Following is a summary of the report and recommendations submitted by that group to the larger steering committee.[1]

Pandemic Flu/Public Health Emergencies:

Ethics, the Law and Palliative Care

[7] In a public health emergency, demand for health care resources – human and material – can suddenly far exceed availability. This reality becomes particularly acute with respect to allocation of critical care resources and provision of palliative care.

[8] Ethics cannot and will not be set aside or “back-seated” during a public health disaster involving/affecting LMC. Indeed, the need for careful, shared moral deliberation comes to the very forefront under such public duress.

[9] In keeping with its church-sponsored mission and core values of compassion, dignity, integrity, and service, LMC is committed to practicing universally-recognized moral principles that shape responsible decision-making in health care, namely: beneficence, non-maleficence, justice, and autonomy. These principles are placed in the contexts of wholeness, stewardship and finitude, as understood and set forth in Caring for Health: Our Shared Endeavor, a Social Statement of the Evangelical Lutheran Church in America (ELCA).[2]

[10] While all of those principles are continually upheld, as a public health crisis evolves, it is essential to recognize that we inevitably move from a normative orientation around individual patient care to a more communal/public health focus. The overriding concern is for the common good. Normative standards of practice may change, so that health care professionals can exercise care in ways that bring about the best outcomes for the larger community and ensure just allocation and equitable access.

[11] Likewise, when government officials declare a public emergency, certain legal and regulatory sanctions may be temporarily waived, so that they do not present barriers to the provision of equitable and responsible medical care under the limiting circumstances of a health disaster. Concomitantly, new legal requirements may be enacted, and LMC is fully committed to operating in accordance with all applicable laws, rules and regulations.

[12] Consistent with ethical and clinical guidelines identified by the New York State Department of Health and the New York State Task Force on Life and Law[3], LMC has adopted the following framework of principles regarding ethics, legal concerns, and provision of palliative care in the event of a public health disaster:

Duty to Care:
While optimal care to patients, families and staff is an inherent obligation, the circumstances of a health emergency also necessitate limits to autonomous decision-making for providers, patients, and families.

Duty to Steward Resources
We are committed to saving the greatest possible number of lives, while continuing to care for each individual patient.

Duty to Plan
Though they will be imperfect in a crisis, stated guidelines are imperative. Frontline providers should not bear a disproportionate burden of ethical decision- making

or moral distress in a health care disaster.

Distributive Justice
Resources must be allocated in a fair and consistent manner, fully coordinated with public health authorities and safeguarding equitable access. Planning must designate appropriate resources for the most vulnerable populations, who are most likely to experience dire consequences in any disaster.

Guidelines and practices must be open and accessible to all physicians, staff, and the public; and, given the diversity of the community served by LMC, must be made available in current prevailing languages.


[13] Issuing from the above framework, several specific measures shall be followed at LMC in the event of a declared public health emergency:

Immunization is the most effective measure health care workers can take in protecting patients – and themselves – from a pandemic or public health disaster of an infectious or contagious nature. The above ethical principles of duty to care, non-maleficence, and distributive justice compel all health care workers who are able to be fully immunized.
Pre-triage requirements: LMC will institute all available means of creating optimal surge capacity, including canceling/postponing elective procedures.
To the fullest extent possible, surge capacity shall include securing adequate staff to provide critical care.
Under extreme circumstances of health emergency, and only in accordance with all applicable laws, critical care resources (such as ventilators) shall be withheld and withdrawn from patients with the highest probability of mortality in order to benefit patients with the highest likelihood of survival.
Determination of access to ventilators and other critical care resources will follow the official clinical evaluative system of triage/assessment instituted by appropriate government/public officials.
A just rationing system will be applied to all hospitalized patients who require critical care, not only patients who are affected by the particular disease or event creating a health emergency. In order to lessen the burden on frontline providers, guidelines for implementation of the rationing system will be made centrally by a sanctioned triage officer or committee.
Consistent with the Medical Staff Bylaws of LMC, in the event the hospital activates its Emergency Management Plan in response to a disaster or health emergency, the authority to assume the care and/or disposition of patients in the hospital shall be given to the department Chair or his/her designee, as appropriate.
The complexity of clinical circumstances will inevitably make actual triage decisions very challenging and morally distressful for many as they impact whole persons – patients, families, loved ones, and staff. Individuals and teams will be trained and deployed “24/7” to offer the following: 1) assist with criteria-based triage and determination of nonbeneficial treatment; 2) provide support for psychosocial, spiritual and moral distress, and; 3) facilitate pathways and provide support for those patients and families transitioning to palliative care.
Trained and deployed care teams shall be drawn from pastoral care, the ethics committee, behavioral health, social work, medicine, nursing, and other disciplines.
When critical care treatment is discontinued – based on consistent triage criteria – clinicians will follow applicable law and existing protocols at LMC for withdrawing and withholding life-sustaining treatment and providing palliative care to patients and supportive care to families. Clinicians must document decisions regarding palliative measures. When cure is not possible, whole-person care will always be optimized.
Communication: Physician and staff education/awareness as to guidelines, protocols and practices constitutes an ethical obligation in itself, to assure consistent/optimal coordination of care for all. Efforts to engage public awareness and discussion of these guidelines will also help assure preparedness and transparency.
These guidelines remain open-ended in light of changing community needs, as well as the changing clinical, regulatory and legal developments of a health care disaster.


[14] Lutheran Medical Center sponsors ongoing interdisciplinary ethics rounds and seminars for purposes of staying current on issues in biomedical and organizational ethics and fostering a climate of shared moral deliberation within the institution. Given the importance of the above measure around full communication – in itself, an ethical obligation – LMC sponsored two ethics rounds on “Allocation of Critical Care Resources in a Public Health Emergency.” These rounds were open to all and well attended, bringing a wealth of helpful feedback and conversation into the process of moral deliberation around this critical issue in healthcare ethics.

[15]Caring for Health: Our Shared Endeavor has been a significant guiding resource in those important conversations and the ongoing process of shared moral deliberation at Lutheran HealthCare. In addressing the daunting ethical challenges of a pandemic or other public health emergency, we continue to look to the following guidance found in that ELCA Social Statement:

“Patients and health care professionals share responsibility to use health care resources wisely. Simply because a treatment or procedure exists does not mean that it should be used in every instance….We live with the tensions created by the limits of resources for health care, hoping for healing in this life while trusting in God’s promise of wholeness and eternal life.”

Acknowledgements: In creating this article, I am deeply indebted to fellow members of the Ethics and Legal Workgroup of the Greater New York Hospital Association (GNYHA) in coordination with the New York City Department of Health and Mental Hygiene (DOHMH) – a consultation group made possible through a grant from the Centers for Disease Control and Prevention (CDC). Also, I am very grateful to the Chief Medical Officer at LMC, Dr. Beth Raucher, and our Ethics/Legal/Palliative Care Pandemic Flu Subcommittee, which I was privileged to co-chair with Dr. Audrey Saitta. Many thanks as well go to friend and colleague, Kell Julliard, for his review and suggestions. Finally, the article cited below by Dr. Tia Powell, et. al. was a primary resource for both our work and this paper, and is highly commended.

[1] While now embraced by the Pandemic Flu Steering Committee at LMC and serving to guide its work, the material contained in this article does not represent board-approved system policy at Lutheran HealthCare.

[2] “Caring for Health: Our Shared Endeavor”, A Social Statement of the Evangelical Lutheran Church in America, Augsburg Fortress Publishers, Minneapolis, MN, 2003.

[3] Powell, Tia, MD, Christ, Kelly, MHS, Birkhead, Guthrie, MD, MPH, “Allocation of Ventilators in a Public Health Disaster”, Disaster Medicine and Public Health Preparedness, Lippincott Williams & Wilkins, Vol. 2/No.1

Donald A. Stiger

Rev. Donald A. Stiger serves as Senior Vice President for Mission and Spiritual Care at Lutheran HealthCare, Brooklyn, NY. He is an ordained Pastor in the ELCA.