An insurance company’s denial of coverage for a liver transplant sometimes is perceived as discriminatory. The authors of a recent paper analyzed judicial review of these controversial cases.1
“Transplant decisions, although they are made locally, have the potential for sweeping consequences,” says Elliot B. Tapper, MD, the study’s lead author and an assistant professor in the division of gastroenterology and hepatology at the University of Michigan.
Tapper and colleagues reviewed all published court opinions that involved a denial of liver transplant candidacy in violation of constitutional rights. Of 1,562 cases, 290 transplants were denied due to a patient’s failure to abstain from drinking, 273 cases involved incarcerated inmates, two involved patients requesting a bloodless transplant for religious reasons, and two cases involved age discrimination.
Court cases decided on constitutional grounds are consequential for every transplant program across the country. “With that in mind, we wanted to survey the landscape of legal cases that invoked constitutional clauses so that centers and payers could avoid pitfalls,” Tapper explains.
If objective data do not clearly support a transplant decision, it could be seen as arbitrary. “Because of the way transplants are funded and organs are allocated, people are protected from capricious rulings as a function of the 14th Amendment,” Tapper says.
Researchers recommended that payers avoid rules denying transplants on the basis of a prespecified period of sobriety. This is no longer supported by the literature. “Centers should be allowed the flexibility to determine, on a case-by-case basis, who is the best possible candidate,” Tapper says.
Despite high-profile cases in which people were denied transplants because of their undocumented status, Tapper and colleagues found no such cases. “It is possible that is because people lack resources or agency to bring cases,” Tapper suggests.
Two cases alleged discrimination based on age. Investigators recommended using objective, data-driven measures for transplant selection, including evaluation for frailty. These criteria are associated with outcomes before and after transplant. “These evidence-based metrics can be used to determine if somebody is too sick for transplant, irrespective of their age,” Tapper says.
Decisions to list (or not list) a patient as a transplant candidate based on nonmedical criteria can be “concerning, because they can lead to discrimination based on disability,” says Alexandra K. Glazier, Esq., president and CEO of New England Donor Services in Waltham, MA.
For instance, centers might consider a patient’s existing social support or ability to adhere to post-transplant care. These are important factors in evaluating the potential for a successful transplant outcome. However, they are subjective. If not carefully considered, it can lead to conclusions made based on a patient’s disability rather than individual circumstance, Glazier cautions. “The ethical implications are significant,” she says.
Access to transplantation should be as equitable as possible, based on sound medical judgment, not subjective considerations that can lead to discrimination. “As a scarce resource, however, the system must maximize the life-saving benefit of organ transplantation and minimize any organ wastage,” Glazier offers.
The balance of these principles requires appropriate consideration of expected patient outcomes. “But this assessment should not form the basis for discrimination,” Glazier adds.
Organs are allocated only to candidates listed for transplantation. Once a patient is listed as a candidate for transplant, the national allocation policies are based on objective medical criteria and other objective factors (e.g., acuity of the patient and time waiting for an organ). To ensure a system that provides access to transplantation without discrimination, Glazier says there should be national standards regarding patient selection criteria.
“Disability should neither be a relative or contraindication to listing a patient as a candidate for transplantation,” she says.
Further, patients should be evaluated individually based on transparent, consistent criteria. “Patients should not be excluded from consideration for transplantation solely on the basis of a disability,” Glazier adds.
- Tapper EB, Wexler R, Goldman E, Volk M. Constitutional challenges to liver transplant policy. Transplantation 2019;103:e378-e381.