Allen v. Mansor, 681 F.Supp. 1232 (E.D. Mich. 1986)
Subjective assessment of a patient's suitability to receive limited services must be a factor in
developing patient selection criteria. Such issues normally arise in the context of individuals
who abuse drugs or alcohol, and are in need of an organ transplant. Because substance abuse
directly affects the success rates of organ transplantation, it must constitute a factor when making
organ allocation decisions. To ensure the validity of such selection criteria, experts in the field of
drug and alcohol abuse must be included on physician panels charged with developing rationing
In Allen v. Mansour, a Federal District Court struck down a Michigan Medicaid patient selection
criteria which required candidates for liver transplants to provide documentary proof of
abstinence from alcohol for a period of two years. In the case at hand, the Department of social
services denied the Petitioner's Medicaid request because the he had not been alcohol-free for at
least two years prior to requesting the transplant. The Federal District Court struck the waiting
period as being arbitrary and capricious. Because the patient selection criteria in this case was
developed by a panel of doctors without input from alcohol abuse experts or the use of statistical
analysis relating to alcohol abuse, the two year alcohol abstention period was arbitrary. Since the
Petitioner's liver transplant was medically necessary and the two-year abstention period was
unreasonable, the court struck down the Michigan Department of Social Service's Medicaid
The affects of drug and alcohol abuse on the success of organ transplantation are undeniable.
Therefore, it is necessary to account for drug and alcohol abuse in crafting patient selection
criteria. In order to create rationing criteria which are not arbitrary, the physicians who develop
these standards must utilize expert input regarding the affects of substance abuse on the body.
Since substance abuse is an illness, treatment options and a patient's willingness to seek
treatment must be incorporated into the patient's eligibility for selection. Selection criteria which
account for the patient's substance abuse problems while not indiscriminately punishing patients
for their illness are not arbitrary or unreasonable.
Babara A. Noah, Racial Disparities in the Delivery of Health Care, 35 San Diego L. Rev. 135
Both explicit and implicit racial discrimination exist in the current system of health care rationing
within the United States. Unconscious treatment decisions often result in racially unequal
rationing practices.(14) Physicians and health care providers have traditionally written off these
systemic inequities, within the rationing of services, as a result of cultural differences.
The author of this article specifically points out racial inequities in patient selection criteria for
organ transplants. Potential for discrimination in the organ allocation process at the individual
level exists when physicians first evaluate potential transplant candidates to determine whether
they meet medical and other criteria to be placed on a waiting list. It is at this stage where
selection criteria, such as limiting organ allocation on the basis of drug or alcohol abuse,
disparately impacts the African-American patient. The author also points out that the organ
allocation process also has systemic factors which result in biases in the rationing of organs. The
current kidney allocation system, as established by the United Network for Organ Sharing
(UNOS), operates on a point system. The current system awards a high number of points for a
perfect antigen match. African-Americans as a group make up a relatively small portion of organ
donors. Racial inequity in the current point system exists because the likelihood of a perfect
antigen match is very low when white donors are matched with African-American Donors.
Both individual and systemic discrimination within the organ allocation process must be stopped.
While the author advocates for the abolishment of favoring antigen matches, the likelihood of a
successful transplant must be considered in the organ allocation process. However, with the
implementation of highly effective anti-rejection drugs, reliance on a perfect antigen match is
unnecessary. Alone, increased donation rates among minorities, will not meet the organ
transplant needs of African-American patients. Therefore, the point system which places heavy
emphasis on a perfect antigen match should be replaced by a system which not only considers the
likelihood of a successful transplant, but also results in less racial disparity in organ allocation.
Chris Ham, Tragic Choices in Health Care: Lessons from the Child B Case,
Medical Journal, 1258 (Nov. 6, 1999).
In the English system of health care, great deference is given to the public health authority in
making resource-rationing decisions. English courts review patient selection cases focusing only
on the health authority's decision-making process. In the mid-1990's, a case arose in England
which brought to light many questions regarding the country's resource rationing criteria.
Child B was a six-year old girl diagnosed in 1993 with a potentially terminal form of leukemia. .
The pediatricians charged with Child B's care felt that she was unlikely to benefit from further
intensive care. However, child B's father, David Bowen, found two Doctors from California
who recommended that the child should receive a second bone marrow transplant. Mr. Bowen
contacted the public health authority and requested that they finance the treatment. The public
health authority declined the request stating that the pediatricians charged with treating the child
were in the best position to assess her treatment options. The authority further stated that they
were unwilling to use health care resources on invasive procedures with limited chances of
success. In response to the health authority's denial of his request, Mr. Bowen turned to the
English courts. The Court of Appeals ruled that the decision making process utilized by the
health authority was valid, therefore there was no reason for the authority's decision to be
reviewed. After receiving some further care, funded by private donation, Child B succumbed to
her illness in 1996.
The author of this article correctly asserts that in a system that seeks to ration services, while still
respecting patients' needs, the procedural methods utilized must be sound. The author correctly
points out that in this case, the decision making process was valid. The Director of Public Health
correctly followed the recommendations of Child B's personal physicians. Although these
recommendations may have caused a quicker death for Child B, the doctors were best situated to
make this difficult decision. Patient selection decisions which are made under a process which is
fair, and based on criteria which are known and accessible to the public make these tough choices
much more palatable to the individuals they affect.
David Orentlichter, Destructing Disability: Rationing of Healthcare and Unfair
Discrimination Against the Sick, 31 Harvard Civil Rights-Civil Liberties L. Rev. 49, (1996).
America can no longer afford all medically necessary care. Although implicit rationing based on
ability to pay already exists within our system, the author of this article asserts that explicit,
government controlled, rationing of healthcare services is inevitable. It is likely that patient
selection criteria within this explicit system of rationing will discriminate against the mentally ill
as well as the physically disabled. The focus of this article is to suggest a process of service
allocation which operates efficiently while still including the sick and disabled.
The author suggests that in order to avoid discrimination against the disabled in a healthcare
system that practices explicit rationing of services; the reasonable accommodation standard
should be applied. The author looks to the Americans with Disabilities Act and the
Rehabilitation Act in asserting that physicians must take an individual's disability into account
and make reasonable accommodations before excluding them from the resource allocation
process. Under this system, a physician would only be able to deny a person a limited resource
after determining that the person's disability seriously compromises their ability to benefit from
the service. The author goes further in suggesting that once the physician has made a reasonable
accommodation for the individual's disability, that person would be put in a lottery with
everyone else in need of the limited resource. Such a lottery process would remove the social
and political discrimination against the disabled, and increase equality within our system of
While the process introduced by the author increases equity within the system, it decreases
efficiency. Physicians and other medical specialists are best situated to make the difficult life
and death decisions involved in rationing limited services. Removing the physician input and
putting everyone in need of limited services in a lottery eliminate the advice and counsel of those
closest to the patient. Although a lottery system may appear to be more equal on the surface, in
all actuality it is not. It would allow patients who have less life expectancy, have made poor
lifestyle decisions, and who would benefit less from the resource, to triumph over those who are
more likely to benefit from the resource. Therefore, a lottery or any other "chance" method of
allocating limited resources is inappropriate in our healthcare system.
George P. Smith II, Our Hearts Were Once Young and Gay: Health Care Rationing and the
Elderly, 8 University of Florida Journal of Law and Public Policy, 1, (1996).
A system, which must explicitly ration the allocation of limited healthcare resources,
encompasses thousands of difficult decisions involving who lives and who dies. Because of the
implicit beliefs that the disabled, the elderly, and the poor are less able to positively contribute to
society, these groups are likely to bear the burden of societal prejudices. Therefore, whoever is
charged with making patient selection decisions must be insulated from such beliefs.
The author of this article asserts that the tool, which will allow society to undertake such critical
selection decisions, is a rigid adherence to ethics.(15) Mr. Smith believes that ethics serve as a
regulator for value-based decision making within the healthcare system. Rigid adherence to the
ethical foundations of medicine and the treatment of patients shields decision makers from social
prejudices. Uniform patient selection criteria, based on standards such as those expounded by
the American Medical Association's Principle of Ethics, would allow all patients to stand on
equal footing within the healthcare system.(16)
Based on the reasoning of this article, the physician, or a counsel of physicians is best situated to
make patient selection decisions. Concern for the care the patient receives is the physician's first
concern.(17) Idealistically, from a pure ethical point of view, the physician is best situated to make
life or death decisions regarding the patient. Furthermore, it is highly unlikely that elected
politicians, who are influenced by interest groups, will ever be shielded from social biases.
Therefore, the government is too removed from the individual patient and relevant medical
community to establish patient selection criteria. If ethics are to be the foundation on which
patient selection criteria are built, the physicians must have the most influence in making
resource allocation decisions.
Ingrid Kinkopf-Zajac, Assessing Patient Compliance in the Selection of Organ Transplant
Recipients, 6 Health Matrix: The Journal of Law-Medicine 503, (1996)
The most visible element of explicit rationing within our current healthcare system is the
selection process for allocation of organs transplantation. Assuming that the goal of organ
transplantation is the successful outcome of the procedure, then the likelihood of patient
compliance must be a factor in determining selection criteria. The author of this article makes a
well-reasoned assertion that patient non-compliance must be factored into the organ selection
process. Although such an assertion is controversial, Ms. Zajac recommends establishing
uniform guidelines for assessing the willingness or ability of a patient to comply with post-transplant treatment.
The author begins by suggesting that the UNOS three-stage process of candidate selection remain
in place, but recommends several changes. Ms. Zajac points out that the private referral system
utilized in the first stage of the UNOS selection process is discriminatory against poor people
who have no private physician. Ms. Zajac advocates that the system should require physicians to
refer all patients at end-stage organ failure to regional transplant centers. This way, physicians
would no longer serve as gatekeepers, and all potential candidates would have equal initial
access. Ms. Zajac argues that patient selection criteria are really developed in the second stage of
the UNOS process by the regional transplant centers. Under the current system, the various
regional centers implement a wide variety of differing criteria in determining how to rank the
potential candidates. The lack of uniformity within this system allows a patient to be rejected at
one regional center, while being accepted by another.(18) Ms. Zajac argues that it is at this point
that a person's likelihood of compliance should be assessed. She asserts that these centers should
establish standardized criteria that include: A psychiatric evaluation, drug and alcohol screening,
and the patient's past record of compliance with treatment. Ms. Zajac further argues that patient
compliance could be a factor in the final stage of the UNOS process by taking points from
candidates who have previously rejected a transplant due to non-compliance with treatment.
The idea of holding patients accountable for non-compliance with treatment is very
controversial.(19) In this article, Ms. Zajac makes a well-reasoned argument as to why patient
compliance must be considered in the allocation of scarce resources. By removing the private
physician as the gatekeeper for transplant referrals, she eliminates the individual biases and social
prejudices that keep many from even being considered as transplant candidates. Furthermore,
Ms. Zodiac's suggestions at how patient compliance can be implemented into organ donation
selection criteria always puts the goal of successful transplantation first. In a system which must
ration limited resources, such an approach is both logical and efficient.
John F. Kilner, Who Lives? Who Dies? Chapter 3, 1990
Whether implicitly or explicitly, the perceived value that an individual has within society plays a
role in determining whether the person is selected to receive limited healthcare resources. Social
value criteria are based on the idea that limited healthcare resources should be allocated to those
individuals who, if saved, will be the greatest benefit to society. One of the fundamental bases
underlying the social value doctrine is that society as a whole has invested thousands of dollars
and limited resources into an individual's treatment. Therefore, these resources should be
allocated to those individuals who, in the future, will most contribute back to society. This
allows the country, as a whole, to get a return on its investment.
Although Mr. Kilner appears to favor the use of social value concepts in developing patient
selection criteria, he does an excellent job at pointing out the weaknesses of the social value
doctrine. The most important weakness in a system that rations on the basis of a patient's
perceived social value is the potential for bias. More than likely the people charged with making
such patient selection decisions would come from the upper strata of the social spectrum. It is
conceivable that these decision makers would favor patients who are most like themselves,
believing that the services they provide are highly valued by society. Such personal biases of
these individuals would lead to the exclusion of the poor and minorities. Furthermore, it is also
likely that social biases would pervade the initial development of the patient selection criteria.
Mr. Kilner correctly points out the implicit factors of social value that underlie healthcare
rationing decisions. However, social value criteria should not be explicitly used as a basis for
rationing healthcare. Although these economic classifications, on the surface, are not "suspect"
for the purposes of Constitutional analysis, government sanctioned use of these factors would
result in unequal protection under the law. Since social value criteria would disproportionately
exclude minorities from allocation of limited healthcare services, a strong argument could be
made that such criteria should be subject to strict scrutiny. Therefore, explicit use of the social
value criteria in patient selection decisions should not be considered.
-Micheal Terry: When Did We Decide To Execute Our Old and Our Frail, The Express;
World Reporter at 1, (Dec. 7, 1999).
Mr. Terry presents a vigorous assertion that age should not be considered in rationing health care
services. The central theme throughout the article is that elderly people have paid into the system
for the longest period of time and therefore are entitled to the best care the system can provide.
However, the elderly are repeatedly denied access to expensive care, such as chemotherapy and
treatment by specialists. Mr. Terry goes further in pointing out that not only are elderly patients
being denied limited resources, but in many cases are deprived of basic care so that physicians
may concentrate their time, (also limited), on younger patients. Under such conditions termed
"involuntary euthanasia", elderly patients in need of limited care are often given high doses of
pain- killers as a substitute for disease fighting antibiotics. These high doses of sedatives obscure
the patient's mental ability to question the treatment being administered and the patient
eventually succumbs to the otherwise treatable illness.
Although the article presents a graphic view of the affects of health care rationing on the elderly,
the author fails to acknowledge the reality that rationing of services and treatment within
medicine is a necessary evil. Notwithstanding the fact that the elderly have made the longest
contribution into the healthcare system, a patient's age cannot be disregarded in a system which
must ration its limited resources. The elderly as a group create incredible strain on limited
resources. There is a sum-total of certain specialized treatments within a nation's health care
system. Patient-selection criteria which does not account for age allows people who are at, or
past the age of life expectancy, the same access to limited treatment as people who have enjoyed
only a small percentage of their life expectancy.
While this author does not advocate summarily casting aside the needs of the elderly in a limited
resource system which only caters to the young, age must be a factor when deciding what patients
receive rationed care. Although the older patient may have contributed into the health care
system for a much longer period of time than the younger patient, selection-criteria which denies
the older patient limited resource treatment because of age does not rise to the level of
Ole Frithjof Norheim, Health Care Rationing--Are Additional Criteria Needed For
Assessing Evidence Based Clinical Practice Guidelines? 319 British Medical Journal 1426,
(Nov. 27, 1999).
Rationing decisions, which result in the withholding of potentially beneficial treatment from
patients in need, cannot be made based on guidelines developed behind closed doors. Any
system, that rations limited resources, must be legitimate. The guidelines on which patient
selection decisions are based must be available to the patients and public whom these criteria
affect. Such legitimacy and accountability cannot exist when patient-selection criteria are
developed in a closed-forum setting inaccessible to the public.
The author asserts that the best way to achieve legitimacy in rationing medical resources is to
establish strict guidelines involving not only the closed medical community, but also the patients
and the public. Instead of providing substantive examples of what these guidelines should be,
this article focuses on the process used to develop and implement patient-selection criteria. The
first consideration in forming rationing guidelines is that physicians charged with developing
patient-selection criteria must represent a broad spectrum of medical disciplines. Such diversity
secures the representation of competing interests and allows for a variety of professional
perspectives. The next consideration is that the process of developing rationing guidelines must
involve the views of patients and the public at large. Although the author recognizes that public
participation in developing selection criteria is difficult to implement, guidelines for rationing
that reflect only the values of doctors or those who have a financial stake at risk cannot be
considered legitimate. The final consideration in developing patient selection criteria is that the
guidelines must be explicit and accessible. Establishing explicit criteria available to the
individual citizens of a community allows for public assessment and legitimacy.
The strongest aspect of this article is the author's insistence on public accountability. A system
of health care rationing which is based on firm guidelines, which are known to the public,
increases the acceptability of difficult patient-care decisions. Such a system reduces the
likelihood that rationing decisions will be based on self-serving reasons, or discriminatory
criteria such as race, religion, or sexual orientation. Guidelines of health care rationing
developed in an open, public forum are much more legitimate than those developed behind the
closed doors of a communities' hospital.
Robert H. Blank, Regulatory Rationing: A Solution to Health Care Resource Allocation,
140 U. Pennsylvania L. Rev. 1573 (1992).
In the current American health care system, maximum consumption of limited resources is
quickly leading towards a national crisis. Rationing criteria within this system has resulted in
inequitable distribution of resources based solely on social and medical considerations. The
author of this article asserts that all resources within the nation's health care system are to some
extent limited. In order to ease the tension upon the system, the author suggests that the federal
government must accept responsibility for the allocation and use of medical resources and
develop an explicit system of rationing.
The author suggests that in a system where the rationing of resources is regulated by the federal
government, individual responsibility must be stressed. Individuals who make preventative
lifestyle changes, which positively affect their health, should be rewarded by patient selection
criteria which favors such decisions. By establishing such positive criteria, individuals are
encouraged to take an active role in maintaining their health levels. Educating the population
and encouraging individual responsibility will lessen strain on limited health care resources. The
author argues that the federal government is in the best position to implement such a policy. The
author asserts that private providers and physicians are not in an ideal position to implement
rationing policies because many times they are required to act purely out of self interest or in the
best interest of their individual patients.
The author does a fantastic job of pointing out how the federal government is in the best position
to implement educational programs and suggest national guidelines for rationing services.
However, he incorrectly asserts that the federal government is in the best position to develop
specific selection criteria which affect individual patients. An enlightened corps of physicians
charged with not only acting on behalf of their patients, but also acting to reduce strain on limited
resources are in the best position to develop patient selection criteria. These physicians, by virtue
of their profession, are best situated to make the painful choices involved in limiting certain
services to people in need.