Terri Schiavo might still be alive had she been in a hospice in New York State rather than Florida.
A Queens Supreme Court justice, citing state and Orthodox Jewish law, ruled last week that a feeding tube is not medicine and must be inserted into a patient who cannot swallow unless the patient had provided explicit instructions to the contrary.
Schiavo's husband, Michael, had the feeding tube removed from his wife because he said she would not have wanted to be kept alive by a tube. Terri Schiavo did not have a living will or health-care proxy. She died March 31, 13 days after the tube was removed.
Judge Martin Ritholtz rendered his opinion in a case involving Lee Kahan, 86, an Orthodox Jewish woman.
One question was whether Kahan's "deeply held values as an observant Jew" were being breached by the actions of her daughter, so Ritholtz devoted a portion of his 17-page decision to a discussion of how Orthodox Jewish law regards feeding tubes.
"Judaism views nutrition and hydration by feeding tubes or intravenous lines not as medical treatment but as supportive care, no different from washing, turning or grooming a dying patient," the judge wrote. "The first Halachic [Jewish law] principle of medical intervention is that whenever it is possible to increase the longevity of a patient, it should be done.
"On the other hand, Halacha certainly takes pain and suffering into account. Under certain exceptional circumstances, only to be determined by a competent rabbi, it has been held by [the leading 20th century Halachic authority] Rabbi Moshe Feinstein that for a patient with pain and suffering who cannot be cured and cannot live much longer, it is not obligatory for physicians to administer medications briefly to prolong his life of pain and suffering, but nature may be allowed to take its course."
Ritholtz then quoted a differing opinion, saying Rabbi Eliezer Waldenberg, a contemporary of Rabbi Feinstein, believed that "suffering serves to increase a person's merit, and therefore prolonged suffering is a good reason to prolong life in order to erase sins and to allow the person an opportunity to repent."
"From this cursory overview, it is clear that the halachic view can be intricate and complex," the judge wrote. "In practice, the final decision must involve detailed investigation and full consultation between the doctors, the family and the rabbis on a case-by-case basis."
Ritholtz pointed out that within Orthodox Judaism there are two versions of health-care proxies. One written by the Rabbinical Council of America "expounds a very specific position and advises its followers to make a living will following its mandates," he said.
The other, written by the Agudath Israel of America, "merely gives guidelines as to what one should do and reserves ultimate decision-making to the individual's pre-selected rabbi," the judge said.
"The best course for observant Jews wishing to prepare a health-care proxy is to appoint a halachic authority of their choice to rule on medical issues as they arise in the event they become incapacitated," Ritholtz wrote.
In the Kahan case, the woman's doctors wanted to replace the feeding tube in her nose with one in her stomach to stave off possible infection or other problems. But Kahan's daughter, Joan Simonson, her mother's health-care agent, refused to permit the stomach tube, fearing its insertion would "actually be more harmful" to her mother.
Kahan's sister, Rose Borenstein, went to court seeking to override Simonson's refusal. During a hearing Simonson, of Milford, Conn., said her mother was dying, that she had an advanced case of Alzheimer's disease and that she had "almost no quality of life."
"My whole concern is that she not be caused any suffering and that she be able to live out the rest of her natural life, you know, as comfortably as possible," Simonson said, adding that she also did not want to do "anything that would cause my mother to die."
But after hearing doctors testify that it was medically necessary to insert a stomach feeding tube, Simonson withdrew her objection and allowed the procedure. The surgery was conducted successfully Feb. 24 and Kahan was returned to the West Lawrence Care Center, a nursing facility in Far Rockaway near Borenstein's home.
Borenstein asked Ritholtz to nullify the health-care proxy Simonson held for her mother or prevent her from making any future health-care decisions regarding feeding and hydration. Ritholtz refused to abrogate the health-care proxy but did say that Simonson had no authority to stop the feeding and hydration of her mother because Kahan left no written instructions in her health-care proxy regarding artificial nutrition and hydration.
In rendering the latter decision, Ritholtz examined the genesis of the state Health Care Proxy Law. He said that although some people view artificial nutrition and hydration through a stomach feeding tube as medical treatment comparable to mechanical ventilation, others argue that the insertion of such a tube is not a medical procedure but rather "the act of providing sustenance to a living person."
"Those who distinguish nutrition and hydration from other forms of medical treatment note that withdrawal of this form of support is frequently an independent cause of death by 'gradual starvation and hydration,' and not from the underlying disease," Ritholtz wrote.
He said that from a Halachic perspective, a persistent vegetative state and Alzheimer's disease are not terminal conditions, per se, despite the fact that they are progressive, irreversible and inevitably result in death.
"Patients with these illnesses," Ritholtz wrote, "deserve the same full range of treatment that is made available to any other patient."