Triage or Randomization – Who Receives a Chance of Survival in the COVID-19 Pandemic Crisis?

The COVID-19 pandemic has proven to be exceptionally challenging for health care worldwide. Media and politicians currently pay attention to the ethical dilemma of distributing a prospective and potentially scarce COVID-19 vaccine. Meanwhile, physicians in intensive care units that are running out of equipment and qualified staff face vital ethical dilemmas already today. The specific course of the COVID-19 virus leads to situations in which physicians are aware that they make a pivotal decision over the life or death of one patient, for the direct benefit or disadvantage of others. Until now, these decisions are left to the individual physician without legal backing. While guidelines by professional medical associations provide orientation, the law often stands idly by. The guidelines themselves are ethically and legally controversial. We draw on literature in the behavioral sciences to outline which pitfalls the current juridical situation may entail. We argue that polity has to decide whether there are criteria for duly justified cases in which the medical system has to prioritize patients, and the procedure to do so, to overcome the intolerable present legal situation. This will provide due justification and relief for physicians. We show how informative research on ethical dilemmas in autonomous driving can inform policymakers which triage criteria may find acceptance in society if dilemmatic resource shortages occur. If policymakers refuse to lay down criteria for triage, by which they would deliberately impose harm on some in order to avoid greater harm for others, every patient must be given an equal chance of treatment, irrespectively of age or condition. We argue that this would imply that ventilators and other vital medical resources have to be allocated randomly. Furthermore, we provide empirical evidence for the acceptance of randomization in emergencies during the COVID-19 pandemic. Polity has to provide legal certainty for physicians, who face ethical dilemmas induced by resource shortages. It has to define legally binding triage criteria, or else deliberately refuse to do so and rely on a random allocation of scarce resources among the needy, to explicitly exclude any kind of discrimination