Strawmen, Red Herrings, and Liver Transplants for Yakuza

We recently posted about the strange case of four Japanese men, allegedly affiliated with Yakuza criminal organizations, who received liver transplants from the UCLA Medical Center, apparently with some alacrity. All likely paid full list prices for their procedures, and two later donated $100,000 each to the medical center. The case raised concerns by several notables (including Senator Charles Grassley, and Professor Arthur Caplan) about the integrity of the transplant system. Presumably these concerns were based on suspicions that the four may have received a higher priority than others on the list. More concerns should have been raised after it was revealed that shadowy characters threatened a reporter who started to investigate the case in Japan, and the reporter's family (see post here).

So I read with interest an op-ed on the case written by Dr Gerald S Levey, Vice Chancellor of Medical Sciences and Dean of the David Geffen School of Medicine at UCLA. He sought to address several points.

Troubling questions have been raised by reporting in the Los Angeles Times about whether doctors should consider the moral character or criminal history of patients before saving their lives with an organ transplant. Concerns also have been raised about whether a hospital should accept financial donations from grateful organ recipients, regardless of their backgrounds, and whether foreigners should be able to receive transplants in the U.S.

Dr Levey rebutted those who suggested that transplants should only go to those of good character:

Do we want to force caregivers to make a life-or-death decision based on whether a patient is a 'good' or bad' person?

In addition to medical considerations, UNOS guidelines require some 'nonmedical' judgments, such as whether patient behaviors are likely to result in failure of the new organ, or how well doctors think a transplant candidate would adhere to post-surgery protocols. Teams of physicians, nurses, clinical social workers and other experts make these judgments.

The need to apply these 'nonmedical' criteria relates solely to the future viability of the transplanted organ, not to the intrinsic worthiness of the recipient as a human being. No physician should be making that judgment; to do so would be to impose a death sentence on some patients, and, besides, matters of punishment are best left to the justice system.

The UNOS Ethics Committee states: 'Punitive attitudes that completely exclude those convicted of crimes from receiving medical treatment, including an organ transplant, are not ethically legitimate.' Moreover, doctors are ethically bound by the Hippocratic Oath: 'Most especially must I tread with care in matters of life and death. ... Above all, I must not play at God.'

Regarding financial donations, Dr Levey wrote:

As for the role financial donations, or the promise of them, might play in a patient receiving an organ, the strict rules governing transplant lists as well as periodic audits all but eliminate any possibility of manipulating the process. That said, there is nothing unusual or improper about patients or their families donating money following transplant surgery.

Finally, Dr Levey wrote this about recipients from other countries:

Regarding recipients from other countries, UNOS allows noncitizens to receive U.S. transplants not only for humanitarian reasons but because they are part of the donor pool -- in Southern California, about 20% of donors are foreign-born -- and excluding them might reduce the number of donors. The guidelines call for roughly 95% of all organs to go to Americans, and UCLA Medical Center has abided by this rule.

What I find troubling about this op-ed, written by an experienced physician who is one of the top leaders of UCLA Medical Center, is that it seems to side-step all the important issues. Instead, it deployed a series of straw man arguments and red herrings.

The most conspicuous straw man is the notion that UCLA is under attack by people who believe their should be a moral test for receiving any medical care, or that criminals should not receive any medical care. I haven't seen any suggestions that the major problem in this case was that criminals received medical treatment, per se. Instead, the concern seemed to be that people who could pay list prices, and were likely to give further donations to the institution on top of those payments, might have received higher priority for transplantation of scarce organs, despite their criminal ties.

Furthermore, the issue of moral worthiness for treatment gets a bit more complicated in the case of organ transplants, which require use of a scarce resource, a donated organ, that if given to one patient does not go to another. As Dr Levey pointed out, physicians must consider whether "patient behaviors are likely to result in the failure of the new organ." Certain kinds of behaviors common among members of organized crime might affect the likelihood of such failure. Some such behaviors may also appear to be immoral.

Leaving aside such complexities for the moment, Dr Levey never directly addressed the issue of whether criminals who paid list price, and also in some cases, made additional donations, might have been given a higher priority than ordinary patients whose insurance companies would have paid less, and were not wealthy enough to make additional donations.

He also failed to affirm that the four transplant recipients in question received transplants in strict accordance with their medical conditions and their resultant position on the priority list. Instead, he described how the process is supposed to work:

Under the guidelines, the liver transplant system is based primarily on disease severity. Patients are placed on a list, and UNOS prioritizes them according to need. As livers become available, organ procurement agencies match them to those at the top of the list, based on such factors as travel time, blood type of organ and patient and the quality of the organ.

But the decision as to whether a particular organ is best for a given patient must be made by the patient's physician. If the physician decides it can't be used for the patient designated by UNOS, the organ goes to the next person on the UNOS list, who may be waiting for the procedure at another hospital.

This appears to be something of a red herring. Nobody was arguing that the current transplant prioritization process is likely to give priority to patients who pay full list price, and are likely to make additional donations, even if they have a criminal background in another country. The questions were whether the process worked the way it should have in this case, whether it has loopholes, and whether some breakdown of the process facilitated these particular transplants. Dr Levey did not address these questions.

Dr Levey employed two other sets of straw men and red herrings.

Raising concerns about whether financial donations per se affected the patients' priority for transplants was another straw man argument. I don't believe anyone was arguing that hospitals should not accept donations from grateful patients. This was coupled to another red herring. Dr Levey reiterated that rigorous procedures "all but eliminate any possibility of manipulating the process." The issue was not about the the probability of manipulation. It was about whether manipulation occurred in this case.

Raising concerns about whether foreigners should get transplants was a final straw man argument. I don't believe anyone was arguing that patients should be denied transplants because they came from outside the US. Furthermore, Dr Levey's response, focused on foreign-born donors, was another. Maybe he should have cited statistics about how many donors were initially banned from entering the US due to alleged criminal activity, and only allowed on because of promises to reveal information about gang activity in this country.

In my humble opinion, the case of the Yakuza liver transplants raises some real questions about whether the process of allocating transplants miscarried in these specific circumstances. It is disappointing that a top official of the involved medical school chose to to avoid this issue when discussing the case. Furthermore, it is more disappointing that he did not condemn any threats that may have been meant to discourage reporting of the health care provided by his institution, and to offer some support for anyone who might have received such threats. Doing so would have given his declaration that his institution needs "to be accountable to the public" a bit more weight.

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