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Jewish World Review Nov. 3, 2004 / 19 Mar-Cheshvan, 5765

The new ideology in health care… and how to survive it

By Rabbi Mordechai Biser

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An absolute must-read and must-print for anybody with elderly parents

https://www.jewishworldreview.com | An elderly man with health problems was admitted to a major teaching hospital. His son was shocked to find that a DNR (do not resuscitate) order had been entered on his father's medical chart. In response to the son's inquiry, the attending physician said that the patient had told the doctor that he wanted a DNR order. The son insisted that his father, being an Orthodox Jew, would want to be resuscitated if his life were in danger. Neither the son nor the doctor had anything in writing from the patient, who was now incapable of communicating his desires. The son managed to get his father's care transferred to another physician, who removed the DNR order and treated the patient. The father recovered, and had no recollection of any DNR conversation with a doctor.

An elderly woman was found unconscious and rushed to the hospital. The examining doctor told the woman's daughter that her mother was close to death, that very little could be done to save her, and that the best case scenario was that the woman would survive as "a vegetable," so there was no reason to put her on life support. At the rabbi's instructions, the daughter insisted that her mother be put on a ventilator. The woman revived, walked by herself out of the hospital two days later, and went on to live another four years.

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These two true stories, recounted by Rabbi Reuven Drucker of the Agudath Israel of Highland Park, N.J., at a roundtable discussion at the recent Agudath Israel of America convention, highlight a growing danger facing observant Jews in health care facilities across the country. While many people were shocked recently at how doctors and judges sought to aid and abet the demise of Terri Schiavo, a brain-damaged woman in Florida whose husband sought to end her life by depriving her of food and water, the reality is that the thinking that motivated those medical and legal experts has made major inroads in medical schools and hospitals across the country.

The new thinking in medical circles, often expressed in terms of the need to "ration resources," essentially seeks to justify letting patients die solely on the basis of the doctor's personal view that a patient's "quality of life" is so diminished as to no longer be a life worth living.

Dr. David Hoffman, a medical oncologist who serves as Assistant Professor at Albert Einstein Medical Center and attending physician at Einstein Montefiore Medical Center — and is thus well-placed to know how doctors and residents view end-of-life issues — reported at the Agudah convention that many residents and younger doctors now openly advocate this new approach. Dr. Hoffman added that many hospitals have already adopted actual guidelines defining quality of life that govern when to intervene and when not to, and that medical schools are teaching this material to doctors-to-be. Concludes Dr. Hoffman, "These disturbing trends… have made and will make more inroads into our medical… practice."

One of the major forces driving the new ideology is economics. As explained at the Agudah convention roundtable by Betzalel Stern, a Managing Partner at Strategic Healthcare Solutions and former Chief Financial Officer at Maimonides Medical Center, most hospitals get a substantial percentage of their funding from government, which pays "per stay" and not per day, with strict constraints on the length of each stay based on the patient's diagnosis and treatment. "Discharge planners" at hospitals thus subtly, if not directly, influence health care decisions, not only about when to discharge patients, but if and when to withdraw life support, nutrition, and hydration.

But economics alone does not explain the widespread acceptance of the view that it is legitimate for doctors to seek, by inaction or action, to hasten a patient's death. That position is the product of a culture that has largely abandoned the religious worldview of previous generations. If one believes on some level that the ultimate purpose of life is merely to maximize pleasure and minimize pain, that true happiness is dependent on physical comfort or at least physical activity, and that a person's intrinsic worth is measured by his economic and social productivity, then the new medical thinking follows logically. There is no good reason, in this view, for a person in pain with a terminal illness, or permanently confined to a hospital bed and connected to machines that help him breathe, or in an "irreversible" coma, or indeed anyone who will never again be able to put in a day at the office or even a few hours on the golf course, to continue to live.

The next step, one fears, is that death itself, will in effect, be medically and legally redefined so as to rationalize further steps to cut short the lives of the elderly and disabled. Some respected medical experts, albeit still a minority voice in their profession, have publicly called for a move in this direction. Noting that many organs will no longer be in proper condition for transplant purposes if doctors have to wait for a patient's heart to stop beating, Drs. Robert Troug and Walter Robinson of Harvard Medical School propose allowing doctors to remove organs from patients "who are either neurologically devasted or imminently dying." Writing in Critical Care Medicine, 2003, Troug and Robinson attempt to justify their homicidal proposal by claiming that we already take the organs of those declared brain dead, which, they admit, is a highly questionable definition of death.

(Indeed, Troug and Robinson's analysis of brain death provides medical support for the position taken by leading poskim [Jewish legal experts] that brain death is not a halachically acceptable definition of death. See also Gary Greenberg, "As Good as Dead: Is There Really Such a Thing as Brain Death?" The New Yorker, August 13, 2001.)

In short, as Wesley J. Smith, lawyer for the International Task Force on Euthanasia and Assisted Suicide, observes in his book The Culture of Death, "[T]he attitude that it is better to die than to live cognitively disabled has triumphed so completely in our medical culture that some doctors now report a rush to write off newly unconscious patients as disposable, and consign them to death by cutting off life support before they have a chance to recover." We have heard reports of pressure from hospital bureaucrats to have elderly patients sign "do not resuscitate" (DNR) orders when they are admitted, thus giving their doctors free legal reign to let them die. It is therefore not alarmist to state that the lives of elderly and disabled patients are at risk in many health care facilities today.

Where do Torah Jews, stand on this issue? The arguments that what matters is "quality of life" and that people are entitled to "death with dignity" can sound compassionate, ethical, and at times compelling. To take the extreme case, why maintain the 'vegetable' existence (a highly objectionable word which itself dehumanizes a person) of someone in an irreversible coma?

For one thing, as pointed out in the introduction to this article, the doctors are occasionally wrong. Medical technology is far from infallible, and all the more fallible are the technicians and physicians who attempt to make definitive predictions and diagnoses. That there are people walking around today who were once diagnosed as about to die or in an irreversible coma should give pause to anyone contemplating "pulling the plug" on a life support system.

More importantly, even where there is no likelihood that the person will fully recover, we believe deeply that there is value to every precious moment of human life, conscious or unconscious, a value that cannot be perceived, let alone understood, by the world of modern medicine. As my colleague Rabbi Avi Shafran has written,

Suicide is regarded by Jewish law as a sin, and "pulling the plug" of a patient on life-support machinery, even where natural death is imminent, is considered the taking of a life. All the Torah's laws, with the exception only of the three cardinal laws (idolatry, sexual immorality and murder), are put aside when life — even for a limited period — is in the balance.

Whence comes Judaism's exquisite valuation of even momentary human life? A likely reason lies in a recognition pondered by far too few, and far too infrequently. . . Ours is a culture, after all, where human worth is often measured by intellectual prowess or mercantile skills — even by things like youth or physical beauty, or the capacity to convincingly impersonate a real or fictional character, or to strongly and accurately hit, kick or throw a ball.

The too-little-pondered recognition is that the true value of men and women lies elsewhere entirely, in men's and women's potential to do good things — to prepare, in fact, for an existence beyond the one we know. When that idea — self-evident to some, challenging to others — is internalized, a very different sensibility emerges. And among the perceptions it affords is that there is immeasurable value in human life itself — even in its minutes and seconds, and even when it is fettered by infirmity, immobility or depression. Basketball or dancing may no longer be options in the confines of a hospital bed, and even tending to one's most basic physical needs may be impossible without help. But are acts there of sheer will — like forgiveness, repentance, acceptance, commitment, love, or prayer — any harder to accomplish, or any less meaningful? Are they compromised in any way by tangles of tubes and monitors? Not even lack of consciousness, at least as medically defined, need hinder what humanly matters most. We choose to take electronic brain activity as evidence of being meaningfully conscious, of the ability to think and choose, and then proceed to conclude that in the absence of such evidence, those abilities must no longer exist — without a thought (at least a conscious one) of the immense tautology we have embraced.

(Studies of those deemed to be in "persistent vegetative states" have discovered significant mental activity and levels of conscious thought and action. See Carl Zimmer, "What if There is Something Going On in There?", New York Times Magazine, September 28, 2003, which reports that "a vast number of people who might once have been considered vegetative actually have hidden reserves of mental activity.")

We do not know, cannot know, when a human being is truly incapacitated — when his or her soul has been released. Only when a heart has stopped beating can we be certain that life in its truest sense has ended. And so hastening or abetting the death of even a physically or emotionally compromised human being is no less an abortion of meaningful life than gunning down a healthy one.

In this regard, Jewish ethicist Rabbi J. David Bleich writes ("The Quinlan Case: A Jewish Perspective," Jewish Life, Winter 1976) of visiting an elderly relative in critical condition and in a coma on the eve of the Sabbath. He examined the patient's medical chart and saw that his relative was not being treated aggressively. The attending physician informed him that this was because the doctors were unanimous in their opinion that the patient's condition was terminal, and they saw no point in trying to prolong her life. Rabbi Bleich insisted as a matter of Halacha that she be administered the appropriate medication. When he returned on Sabbath afternoon to the hospital, he was told that the patient remained totally unresponsive. He nonetheless went to her hospital bed and greeted her with a loud "Gut Shabbos." Her eyebrows flickered, and she quietly responded "Gut Shabbos." Rabbi Bleich recounts that at that moment there flashed in his mind the comment of Rabbi Akiva Eiger (Orach Chayim 271:1) that even the simple, standard Shabbos greeting expressed by one Jew to another constitutes a fulfillment of the mitzva(religious duty) of Zachor es Yom HaShabbos le'kadsho (Remember the Sabbath day and keep it holy).

"At that moment I realized not only intellectually, but also emotionally, that every moment of life is of inestimable value. Here was a dramatic unfolding of the lesson that every moment of life carries with it the opportunity for the performance of yet one more mitzva."

For the family and friends of the patient, there is also profound value in prolonging life that can't be measured or even fully described except by those living through the experience. "I felt so close to my mother when I visited her in the hospital in the days after the doctors counseled us to give up hope," says my colleague Rabbi Labish Becker. "Every moment with her was truly precious. Our older children got to know their Bubby better, and have memories that our youngest will unfortunately never have".

(Rabbi Becker adds that his mother lived close to two years at home unaided, after doctors said she would no longer have any cognitive functioning.)

Prolonging life also enables family members to come to terms with the impending death of a loved one in a way that is often forestalled if the discharge planners get their way. As a man whose mother-in-law was in a coma wrote me, because of Agudath Israel (which intervened to prevent the patient from being transferred to a hospice far from her daughter's home) "my wife was able to run to [the hospital], hold her mother's hand, tell her 'Good Shabbos,' and then at the end of her visit, hug her mother and tell her that if she had to go, she could, at which point my wife said 'Shema' with/for her mother, cried and kissed her goodbye."

Fundamentally, we take quite a different view than the thinking now prevalent in the secular world. As Rabbi Drucker explained, the true nature of the conflict between the Orthodox Jewish outlook on health care and the secular outlook is that the secular world views "personal autonomy" as an ultimate value, and thus holds that an individual should have the right to determine whether to receive medical treatment and what that treatment should consist of. We, on the other hand, believe that ein lanu reshus al atzmeinu — we do not have authority over our very own bodies. A Jew may not give another permission to harm him physically because he is not the 'owner' over his own body; our Creator is. Therefore, we are commanded to follow the Torah's commands, as expressed in the p'sak (ruling) of a Rav, regarding health care decisions that affect us.

Indeed, it is crucial to emphasize that family members dealing with the type of health care issues raised in this article should consult with a Jewish legal expert experienced in these matters.

There are circumstances where a poseik may determine that a particular course of medical treatment is not required or not advisable, such as where the risks of the procedure are high, or even in some cases where the patient is in intractable pain. But these are decisions that must be made by a Jewish legal expert on a case-by-case basis. It is not for family members or doctors to decide that a patient has "suffered enough," and therefore should not receive medical treatment.

How, given the new health care ideology, can we best protect our parents, our relatives, ourselves? How do we ensure that halacha, and not a doctor's view of what constitutes "a life worth living," will determine the course of medical treatment for people no longer in a position to speak for themselves?

1. Obtain and sign a Halachic Living Will

Dr. Binyomin Sokol, Associate Professor of Medicine at Chicago Medical School and Member of the Ethics Committee at Mount Sinai Hospital in Chicago, stated at the convention roundtable that the first step for all prospective patients (which is all of us) is to contact Agudath Israel of America (212-797-9000) to obtain and complete an Agudath Israel Halachic Living Will. Dr. Sokol added, "It literally can and has saved lives."

(In almost all states, anyone 18 years old or older can make a valid Halachic Living Will. No one likes to think about it, but incapacitating accidents and illnesses can happen to anyone at anytime, and therefore no one should take the approach of "I'll wait until I'm old" to obtain and sign a Halachic Living Will.)

What is the Halachic Living Will and how does it work? This legally binding document enables an individual to designate an agent to make health care decisions should the signer become unable to make or communicate his own wishes. The Halachic Living Will stipulates that all health care decisions are to be made in accordance with halacha, to be determined in consultation with the Orthodox rabbi designated in the document. The basic text of the Halachic Living Will was reviewed and approved by leading experts on Jewish law, and newly updated and revised Halachic Living Wills are now available for many states.

As Jonathan Rikoon, Esq., a partner in the Trusts and Estates Department in the New York law firm of Debevoise & Plimpton, who helped develop the Agudath Israel Halachic Living Will, emphasized at the convention roundtable, the Halachic Living Will "is intended to be a legally binding document that doctors and hospitals must respect. No Orthodox Jew should be without one." Rabbinic authorities — among them — Rabbi Yaakov Perlow, Novominsker Rebbe and Rosh Agudath Israel, concur that obtaining and signing a Halachic Living Will is a vital requirement.

2. Pick doctors who will respect and carry out your wishes.

In addition to executing a Halachic Living Will, Mr. Rikoon advises individuals to take steps now to ensure that they and their loved ones will receive the medical care and treatment that is needed by choosing physicians and health care facilities that will be responsive to their wishes. There are many good doctors who don't subscribe to the new medical ideology, and who will vigorously strive to preserve and prolong their patients' lives.

3. Make sure you have an advocate.

Betzalel Stern, cited earlier, says that it is vital in this new environment for family members to be the patient's vigorous advocate. The reality, says Mr. Stern, is that "patients [who]… have family members [who]… are not available do not get the same kind of treatment in institutions as patients whose advocates are available." This is true not only for patients who cannot speak for themselves, but for everyone who is admitted to a medical facility. It is thus wise to designate as health care proxy in the Halachic Living Will someone who will vigorously and aggressively act to ensure that the patient's wishes are carried out — not someone who will be easily swayed by pronouncements from anyone in a hospital wearing a white jacket. Mr. Stern adds that it is important for family members of a patient to consult with many advisors (rabbi, lawyer, other doctors) rather than on relying on one doctor's diagnosis and suggested course of treatment.

( For example, at Agudath Israel we occasionally receive calls from distraught relatives that doctors are about to remove a patient declared brain dead from life support systems. Despite the hospital administrator's usual initial insistence that nothing legally can be done to stop this, in each case in New York State that has come to our attention, we have been able to persuade the hospital's legal counsel to order that life support be maintained until the patient's heart stopped beating.)

The bottom line is that despite the new ideology in health care, there are a number of things that one can do to protect one's parents and oneself long before anyone enters a medical facility. Our Torah commands us to guard and protect our health, and taking the steps outlined above are now part of the way we need to fulfill this mitzvah. Living in a society in moral freefall, which increasingly devalues life and seeks to hasten death, we can and must do everything within our power to embrace life.

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Rabbi Mordechai Biser, Esq. is Associate General Counsel of Agudath Israel of America. To comment, please click here.

© 2004, Agudath Israel of America. This article originally appeared in The Jewish Observer