Monday, June 09, 2008

Strawmen, Red Herrings, and Liver Transplants for Yakuza

We recently posted about the strange case of four Japanese men, allegedly affiliated with Yakuza criminal organizations, who received liver transplants from the UCLA Medical Center, apparently with some alacrity. All likely paid full list prices for their procedures, and two later donated $100,000 each to the medical center. The case raised concerns by several notables (including Senator Charles Grassley, and Professor Arthur Caplan) about the integrity of the transplant system. Presumably these concerns were based on suspicions that the four may have received a higher priority than others on the list. More concerns should have been raised after it was revealed that shadowy characters threatened a reporter who started to investigate the case in Japan, and the reporter's family (see post here).

So I read with interest an op-ed on the case written by Dr Gerald S Levey, Vice Chancellor of Medical Sciences and Dean of the David Geffen School of Medicine at UCLA. He sought to address several points.

Troubling questions have been raised by reporting in the Los Angeles Times about whether doctors should consider the moral character or criminal history of patients before saving their lives with an organ transplant. Concerns also have been raised about whether a hospital should accept financial donations from grateful organ recipients, regardless of their backgrounds, and whether foreigners should be able to receive transplants in the U.S.

Dr Levey rebutted those who suggested that transplants should only go to those of good character:


Do we want to force caregivers to make a life-or-death decision based on whether a patient is a 'good' or bad' person?

In addition to medical considerations, UNOS guidelines require some 'nonmedical' judgments, such as whether patient behaviors are likely to result in failure of the new organ, or how well doctors think a transplant candidate would adhere to post-surgery protocols. Teams of physicians, nurses, clinical social workers and other experts make these judgments.

The need to apply these 'nonmedical' criteria relates solely to the future viability of the transplanted organ, not to the intrinsic worthiness of the recipient as a human being. No physician should be making that judgment; to do so would be to impose a death sentence on some patients, and, besides, matters of punishment are best left to the justice system.

The UNOS Ethics Committee states: 'Punitive attitudes that completely exclude those convicted of crimes from receiving medical treatment, including an organ transplant, are not ethically legitimate.' Moreover, doctors are ethically bound by the Hippocratic Oath: 'Most especially must I tread with care in matters of life and death. ... Above all, I must not play at God.'

Regarding financial donations, Dr Levey wrote:


As for the role financial donations, or the promise of them, might play in a patient receiving an organ, the strict rules governing transplant lists as well as periodic audits all but eliminate any possibility of manipulating the process. That said, there is nothing unusual or improper about patients or their families donating money following transplant surgery.


Finally, Dr Levey wrote this about recipients from other countries:


Regarding recipients from other countries, UNOS allows noncitizens to receive U.S. transplants not only for humanitarian reasons but because they are part of the donor pool -- in Southern California, about 20% of donors are foreign-born -- and excluding them might reduce the number of donors. The guidelines call for roughly 95% of all organs to go to Americans, and UCLA Medical Center has abided by this rule.


What I find troubling about this op-ed, written by an experienced physician who is one of the top leaders of UCLA Medical Center, is that it seems to side-step all the important issues. Instead, it deployed a series of straw man arguments and red herrings.

The most conspicuous straw man is the notion that UCLA is under attack by people who believe their should be a moral test for receiving any medical care, or that criminals should not receive any medical care. I haven't seen any suggestions that the major problem in this case was that criminals received medical treatment, per se. Instead, the concern seemed to be that people who could pay list prices, and were likely to give further donations to the institution on top of those payments, might have received higher priority for transplantation of scarce organs, despite their criminal ties.

Furthermore, the issue of moral worthiness for treatment gets a bit more complicated in the case of organ transplants, which require use of a scarce resource, a donated organ, that if given to one patient does not go to another. As Dr Levey pointed out, physicians must consider whether "patient behaviors are likely to result in the failure of the new organ." Certain kinds of behaviors common among members of organized crime might affect the likelihood of such failure. Some such behaviors may also appear to be immoral.

Leaving aside such complexities for the moment, Dr Levey never directly addressed the issue of whether criminals who paid list price, and also in some cases, made additional donations, might have been given a higher priority than ordinary patients whose insurance companies would have paid less, and were not wealthy enough to make additional donations.

He also failed to affirm that the four transplant recipients in question received transplants in strict accordance with their medical conditions and their resultant position on the priority list. Instead, he described how the process is supposed to work:

Under the guidelines, the liver transplant system is based primarily on disease severity. Patients are placed on a list, and UNOS prioritizes them according to need. As livers become available, organ procurement agencies match them to those at the top of the list, based on such factors as travel time, blood type of organ and patient and the quality of the organ.

But the decision as to whether a particular organ is best for a given patient must be made by the patient's physician. If the physician decides it can't be used for the patient designated by UNOS, the organ goes to the next person on the UNOS list, who may be waiting for the procedure at another hospital.

This appears to be something of a red herring. Nobody was arguing that the current transplant prioritization process is likely to give priority to patients who pay full list price, and are likely to make additional donations, even if they have a criminal background in another country. The questions were whether the process worked the way it should have in this case, whether it has loopholes, and whether some breakdown of the process facilitated these particular transplants. Dr Levey did not address these questions.

Dr Levey employed two other sets of straw men and red herrings.

Raising concerns about whether financial donations per se affected the patients' priority for transplants was another straw man argument. I don't believe anyone was arguing that hospitals should not accept donations from grateful patients. This was coupled to another red herring. Dr Levey reiterated that rigorous procedures "all but eliminate any possibility of manipulating the process." The issue was not about the the probability of manipulation. It was about whether manipulation occurred in this case.

Raising concerns about whether foreigners should get transplants was a final straw man argument. I don't believe anyone was arguing that patients should be denied transplants because they came from outside the US. Furthermore, Dr Levey's response, focused on foreign-born donors, was another. Maybe he should have cited statistics about how many donors were initially banned from entering the US due to alleged criminal activity, and only allowed on because of promises to reveal information about gang activity in this country.

In my humble opinion, the case of the Yakuza liver transplants raises some real questions about whether the process of allocating transplants miscarried in these specific circumstances. It is disappointing that a top official of the involved medical school chose to to avoid this issue when discussing the case. Furthermore, it is more disappointing that he did not condemn any threats that may have been meant to discourage reporting of the health care provided by his institution, and to offer some support for anyone who might have received such threats. Doing so would have given his declaration that his institution needs "to be accountable to the public" a bit more weight.

7 comments:

Daniel Goldberg said...

The ethical controversy over whether one should take "worthiness" into account in allocating scarce health resources is as old as bioethics itself (i.e., the Seattle Kidney Dialysis controversy, perhaps better known as the "God Panel").

Accordingly, I don't think that suggesting that using substantive evaluations of the prospective donee's moral conduct in the allocation calculus is exceedingly dangerous is really beyond the scope of this debate.

Of course, it's perfectly fair to focus on the pecuniary aspects of this debate, but then we're not really talking about Yakuza, per se, because it is hardly an open secret that we have a two or three tier track health care nonsystem in this country, with wealthy foreigners often enjoying the very best acute care the U.S. offers.

So what makes this case so shockingly different from the everyday occurrence in which wealthy foreigners enjoy far better access to and substantive care than marginalized and disadvantaged Americans?

If so, it looks like what shocks so much about this case -- apart from the threats made to the reporter, of course -- is indeed the background of the donees, which then brings us back to the question of whether that background is itself a compelling justification for bumping the donees down the transplant list, or off the list entirely.

You can obviously construct some good arguments in favor of this position; but I do think it's important to acknowledge that this issue is neither trivial nor obvious, and that ethical controversy on the matter has raged for at least 3 decades.

Anonymous said...

UCLA: hot bed of OJ Simpsonification

Dr. Levey is either a genius or a well oiled conduit for the voice of a pr/attorney spin machine that is the sole resource of well funded clients, carefully responding to highly questionable ethical and medical practices by UCLA medical center.

As a former resident at UCLA I remember the absurd verdict of the OJ trial. The seemingly large amount of evidence pointing to OJ's guilt but despite obvious evidence and a public perception that OJ "did it", the veridct was not guilty.

The UCLA medical center and transplant team should have looked carefully at the facts and no succumbed to OJ Simpsonification. If the UCLA officials and physicians never heard of Yakuza perhaps they should forefit a pinky finger for such a transgression? How did these Yakuza individuals develop this liver pathology? Is it reasonable to transplant acknowledged organized crime career (yakuza) criminal killer types? All the more amazing at such a liberal institution as UCLA, why are the faculty not speaking out in protest of such activity?

Surely looking at basic facts of this situation would discourage UCLA medical officials and doctors from providing highly sophisticated medical and surgical care, despite the patients willingness to pay.

Logistically, ethically, and financialy, it must be very difficult for UCLAT to run a transplant program but look at the track history of these yakuza patients. Organized crime, killers, non US citizens, $$$$$.

Maybe OJ Simpsonification is really a simplification of these events. Given the money involved perhaps it is simple University of Californication Los Angeles

Anonymous said...

Roy,

Great insight. Levey learned his trade at UPMC 1979-1991. There, he had the opportunity to be tutored in the business of making fortunes in transplants and the art of anechoicism and intellectual evasiveness by the leaders (Messrs. Detre and Romoff) of this “not for profit” institution (earnings $618 million on $6.8 billion revenue, 2007) that advertises for business on the West Coast with full page ads. While Levey was Chief of Medicine, UPMC itself had its ethical issues with “cash paying customers” from oil rich countries. This same liver transplant program was recently (March) featured in series on unneeded surgeries in the Pittsburgh Tribune Review.

Bambuzled

Anonymous said...

What I find troubling about this op-ed, written by an experienced physician who is one of the top leaders of UCLA Medical Center, is that it seems to side-step all the important issues. Instead, it deployed a series of straw man arguments and red herrings.

What I find additionally troubling is the possibility that one of the "top leaders of UCLA Medical Center" may not understand that straw man arguments and red herrings are logical fallacies and inappropriate arguments. In other words, that this "top leader" is an idiot.

Of course, the other possibility is that he DOES understand but believes morals are "relative", i.e., he's morally bankrupt.

Either one is quite alarming.

Anonymous said...

Dr. Levey's comments show just how far those in medicine feel they are able to "spin" a response to cover questionable activities. We appear to have reached a point where any action can be justified with the proper public statement.

Troubling is the undercurrent of "How dare you question" our decision making process. We have "trained" people making these decisions. We "vet" the precipitants. We make the proper decisions.

Unfortunately we see this attitude and these financially driven decisions being made time and time again in medicine, to the detriment of patients who are less financially affluent, or connected.

Steve Lucas

Anonymous said...

The language appears to be the product of a typical pr/legal department of a large medical center. Dr. Levey seems to be the "signer" of an attempt to do damage control. As a factory-made response, then, it is predictably straw-man and red herring laden.

If one accepts the general tenor of the side-stepping spin-job that 'moral' questions are not figured into the fairness calculation UCLA physicians' made then what about the post-facto donation? That was optional.

Does UCLA have a no-questions-asked policy of accepting donations?

Would UCLA take money from Osama bin Laden? If so, would they put a placard up in his honor too?

EA

MedInformaticsMD said...

Would UCLA take money from Osama bin Laden? If so, would they put a placard up in his honor too?

Perhaps yes, while from U.S. allies like Israel they'd refuse to take a penny.

Yale took the Taliban's propaganda minister in as a student while rejecting our Afghan allies (search google on "taliban man.") I am not making this up.

See sites like www.campus-watch.org, www.powerlineblog.com and www.frontpagemag.com for more on the issue of leftist-dominated univerities' sympathies.

Also see my post on Duke's outrageous conduct here for a glimpse of big-name university ethics these days.

Moral relativism: he with the biggest stick is right.