Last Chance Therapies: Can a Just and Caring Society Do Health Care Rationing When Life Itself Is at Stake?

Abstract

What does it mean to be a just and caring society (or a just and caring hospital or managed care plan) when we have only limited resources to meet virtually unlimited health care needs, and the need before us now is a person faced with death in the near future unless she or he has access to a very expensive medical intervention that offers only a relatively small chance of a relatively small gain in life expectancy? Such medical interventions are what Norman Daniels and James Sabin refer to as "last chance therapies" because patients who need them have no other medical options to forestall death in the foreseeable future. It is difficult to imagine a more psychologically and morally burdensome decision than whether to offer a last chance therapy. This Article attempts to determine how such last chance therapy rationing decisions should be made within the broad structure of the U.S. health care system-a very fragmented, public-private system for financing health care that is dominated by a variety of managed care options intended to control h~alth care costs more effectively than the indemnity insurance system. The focus of this Article can be interpreted in two ways: First, what moral norms should be used in making these last chance rationing decisions? Given all of the health care needs that exist in our society, and given limited resources to meet those needs (limits ultimately determined by taxpayers or members of a managed care plan), what priority should access to various last chance therapies have relative to all other health needs that make presumptively just claims on health resources? Second, what should be the political-philosophical framework of managed care plans responsible for making these last chance rationing decisions? That is, would we be more likely to get morally defensible last chance rationing decisions if the political philosophy that shaped the functioning of our managed care plan were libertarian, communitarian (Ezekiel Emanuel's vision), or liberal (in the Rawlsian sense)?