Covid19: Tough Questions On The Horizon

            Things are getting a little crazy, and, I suspect, they will get crazier by the day until we either get control of the viral infection causing the global pandemic, or, until – gasp – the virus declares victory and extinguishes the last man or woman standing.

            But between now and the apocalypse there are lots of intermediate, cost-benefit, decisions to make.

            In this past Monday’s New York Times, two physicians and a law professor published a piece entitled, “Doctors May Face Impossible Decisions.”  The thesis was simple. At a time of overwhelming need and scarce resources, health-care providers will have to decide how to allocate efficacious treatment. Put another way, they will decide who gets treated and who is left to die.

            “The goal,” they write, “should be saving as many people as possible, and treating those who are likely to get the greatest benefit from care. This means that treatment cannot be allocated on a first-come-first served basis, as it normally is.”

            Stop and think about that for a moment. Writing while on the lethal side of 60-years-old, I accept, from a distance, my mortality, and the need, eventually, to release my grip on world. But like all mortals, I thought I had more time. I’ve plans, projects, goals. I’ve kept death at bay with the polite, if necessary, fictions that exercising, eating right and getting enough sleep will save me.

          As I write this in isolation at home, I still keep to the same regimen I kept before the pandemic struck.  I’m playing the odds – social distancing, and following the news to learn what best practices require.

            But…

            So much is unknown, and, perhaps, at this time unknowable.

            I was startled, however, to see Dr. Sanjay Gupta, CNN’s doctor of choice, on the air the other day with a chart telling us to “flatten the curve.” It makes a certain amount of sense. But consider what he is not saying.

            In 1918, as news of what many called the Spanish flu traveled, some communities embraced what we now call social distancing, some did not. (Why the Spanish flu? Spain was neutral in World War I and its newspapers uncensored; Spanish papers reported the disease first and Spain got stuck with the name.) Philadelphia went about business as usual, and suffered a steep spike in mortality, before the disease receded. St. Louis, however, responded with social controls. It’s peak of disease as reflect in mortality rates was far lower.

            That’s the good news.

            But what was the downside? The disease lingered far longer in St. Louis, even increasing some in the second year of the epidemic. It appears, at least graphically, the Philadelphia had far fewer cases in year two.

            So more lives were saved in St. Louis as the epidemic dug in. But the epidemic lingered far longer in St. Louis, as those who survived in Philadelphia had, apparently, developed immunity in the first exposure. I’d like to see a longitudinal study comparing the total number of death attributable to the influenza over a two-year period.

            I’m not suggesting what a good friend of mine discussed the other day – a laissez faire attitude, a “thinning of the herd,” to permit things to get back to normal sooner. But as the weeks and months or enforced isolation extend from one season to the next, resource allocation issues will become more significant. A one-time stimulant of $1,000 to all wage earners earning less than $80,000 per year will only go so far.

            Or consider the dilemma prison officials face. What to do with the men and women forced to live in close quarters, many of them suffering from mental health issues? As the pandemic spreads, will prison workers be ready, willing, or even able to come to work? Who will care for these folks when infections spike?

            The American Civil Liberties Union and others are calling for early release of some prisoners as a means of staying ahead of the problem. But I thought we had already waited too long to begin isolation? Aren’t all of us supposed to behave as though we are already inflected? Just where do we expect the newly released to go? Why back to communities on virtual lockdown themselves – don’t go to a bar, a restaurant or other public place, we’re told.

            I imagine the prisons as tinder boxes just now. Inmates must be enraged that they are penned in conditions that make them sitting ducks for catastrophic spread of disease. The jailers must be wondering whether going to work is worth the risk. It doesn’t seem far-fetched to imagine Atticas erupting in the nation’s prisons.

            Query: What if there were a riot and no one responded? I suspect we’re closer to such a possibility than we are prepared to admit.

            A thought experiment: You are a physician in a crowded hospital, resources are scarce and you’ve the material on hand to treat but one person. Into the hospital walks a 64-year-old lawyer (that would be me) otherwise healthy but succumbing to Covid19. In the next room, a 23-year-old mother of two young children, also struggling with the virus. Comes next a 43-year-old inmate just released from prison; he’s thrice been convicted of felonies, has six children by several women. He, too, is stricken.

            Whom do you treat?

            I suspect most of us would pick the young mother.

            Go ahead and claim my hypothetical is too simple; it fails to capture the complex reality of each of these lives. A case could be made for each. But here’s the rub: any case for one is made to the exclusion of the others. This requires identifying variables and assigning values to those variables. It requires the impossible in an era in which pluralism declares all lives matter – we are required to prioritize and ration, something unfathomable in times of surplus.

            And there’s the rub.  Nature has knocked loudly on our door. The fight for survival is on, and if we as a species intend to win it, we need to make tough choices. Declaring, as some now do, that we need to confront our “implicit biases” about those with the virus is woolly-headed nonsense. What are we supposed to do – hug the infected to make them feel better?

            Not if we intend to survive.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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