A conservative legal group says it is illegal for hospitals to use race as a determining factor when prioritizing patients for COVID-19 treatment. The group recently wrote a letter to SSM Health, a Catholic hospital chain that operates 23 hospitals across the Midwest, asking the company to suspend its guidelines for COVID-19 treatment eligibility. SSM Health has now complied with the request.
Threatening Legal Action
Many hospitals have run low on monoclonal antibody products (mAbs) that can help prevent serious illness in COVID-19 patients amid the latest surge in new cases. According to the U.S. Department of Health and Human Services, the treatment can be invaluable in the fight against the virus.
“Your body naturally makes antibodies to fight infection. However, your body may not have antibodies designed to recognize a novel (or new) virus like SARS-CoV-2, the virus that causes COVID-19. Monoclonal antibodies, or mAbs, are made in a laboratory to fight a particular infection (in this case, SARS-CoV-2) and are given to you directly in an infusion. So, the mAb treatment may help if you are at high risk for serious symptoms or a hospital stay. A mAb treatment for COVID-19 is different from a COVID-19 vaccine. The vaccine triggers your body’s natural immune response, but this can take weeks to develop enough antibodies against a virus. So, if you have the virus, the mAb treatment gives your body the antibodies it needs to protect itself. The mAb treatment does not replace the need for the immunity from the vaccine but it can help you if you are at risk for developing serious COVID-19.”
With few mAbs to go around, hospitals have had to make some difficult decisions in terms of who receives this treatment.
According to the conservative legal group Wisconsin Institute for Law & Liberty (WILL), SSM Health sent an email to physicians on Dec. 31 that referenced a risk scoring calculator, in which non-White patients received a 7-point head start out of 20 total and were therefore more likely to receive life-saving medical treatment over White patients with medically recognized co-morbidities or symptoms.
Non-white Americans are still much more likely to die or be hospitalized with COVID-19 compared to Caucasian Americans. After discovering the guidelines being used at SSM Health, the lawyers wrote a letter to the health network threatening to sue if the practice continues.
“For example, a 50-year-old white female (15 points) suffering from obesity (1 point), asthma (1 point), and hypertension (1 point) would not be eligible for mAbs because she does not receive the 20-point minimum score under the calculator,” the letter stated. “On the other hand, an otherwise healthy 50-year-old African American female (22 points), without any of these health risks, would be eligible.”
“The approach taken by your calculator is not only profoundly unethical and immoral, it is illegal,” the attorneys argued.
SSM Health, which operates hospitals in Illinois, Missouri, Oklahoma, and Wisconsin, responded by saying the risk factor calculator referenced in the letter was no longer being used.
“While early versions of risk calculators across the nation appropriately included race and gender criteria based on initial outcomes, SSM Health has continued to evaluate and update our protocols weekly to reflect the most up-to-date clinical evidence available,” the company said in a statement. “As a result, race and gender criteria are no longer utilized. The internal memo cited by WILL inadvertently referenced an expired calculator.”
SSM Health said it stopped using the model before it received the letter from WILL, but it didn’t specify when.
The company previously said there was “ethical justification” for the race-based policy because “COVID-19 has had a disproportionate impact on low-income communities and certain racial/ethnic minorities in the United States,” according to the Dec. 31 email.
But the lawyers at WILL say race never should’ve been a risk factor.
“We’re encouraged that SSM Health has dropped the racial classifications from their risk-scoring calculator,” said attorney Dan Lennington. “But if they updated this calculator before today, we have yet to see any communication to Wisconsin physicians on the matter. We still profoundly disagree with SSM’s position that race is an ‘appropriate’ consideration when treating patients for COVID.”
But a recent study from the CDC that looked at 41 health networks all over the country found lower use of monoclonal antibody treatment among Black, Asian, and Other race and Hispanic patients with positive SARS-CoV-2 test results, relative to White and non-Hispanic patients.
According to the study, “Equitable receipt of COVID-19 treatments by race and ethnicity along with vaccines and other prevention practices are essential to reduce inequities in severe COVID-19–associated illness and death.”