A Traditional Jewish Approach to Risky Medical Treatment

REFERENCES

• Steinberg A. Ethical considerations in modern human experimentation. Cancer Investigation 1991; 9(1)99–105, The research doctor has an inherent conflict between the roles of being both the physician mandated with placing the interests of the patient first and the researcher mandated with advancing medical knowledge, helping society, and advancing his own career. See
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• To illustrate the distinction, let us consider the case of a woman with critical aortic stenosis. We clearly understand the pathology of her condition and recognize that her risk of sudden death within one year remains very high unless some intervention is performed to widen her aortic valve. Open-heart valve replacement is clearly a proven, efficacious, treatment for aortic stenosis, but is potentially very dangerous. If the surgery is successful, the patient's life expectancy is clearly significantly increased. The decision to operate will revolve around her medical condition. If she is a poor surgical candidate, then the surgery may become too risky. Nevertheless, we do not consider the procedure to be experimental! On the other hand, we may propose using an older safe drug, previously utilized for a different indication, for the new postulated indication of increasing cardiac output without changing the area of the valve. It is the unknown efficacy that raises ethical questions, not the side effect profile. In a third scenario, we may propose sending the patient to the interventional radiology department for a contemplated new procedure, never before tried, that would attempt to enlarge the valve utilizing catheter angiography. We know neither whether the contemplated procedure will work, nor do we have the experience to predict the probability of life-threatening side effects such as stroke or arterial embolization
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• Also known as the Yad Ha'chazaka, it covers all areas of Jewish law and remains one of the most editoritative legal guides in Judaism
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• Most notably, the Shulchan Aruch (Code of Jewish Law), written by the Sefardi Rabbi Yosef Karo who lived in Safed, Israel, with glosses by the Polish Ashenazi Rabbi Moshe Isserles. This seminal work was completed in the late-sixteenth century, and while hundreds of subsequent commentaries have been written, it remains the preeminent guide to Jewish law
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• Among the greatest living experts in Jewish medical law are Rabbi Yosef Shalom Eliashiv, editor of Kovetz Tshuvot, and Rabbi Shmuel Wosner, editor of theResponsa Shevet HaLevi. Another great contemporary posek, Rabbi Eliezer Yehuda Waldenberg, editor of the multivolume Tzitz Eliezer, died earlier this year
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• Mishneh Torah. Laws of Murder and Guarding Health, 11: 4, For instance, we are instructed to build a parapet around any flat roof, to prevent someone from falling. Maimonides explains this principle to include any dangerous situation, such as an unguarded swimming pool
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• There is latitude in evaluating how much risk is acceptable. The Talmud asks in several places why certain potentially dangerous actions are permitted. It answers that a person need not avoid small risks that are accepted by the rest of normal society without undue concern. For instance, since automobile travel presents an element of danger, we might think that it should be forbidden. Nevertheless, it is a risk accepted by society and most people do not give much thought to the danger. Therefore, driving with normal caution (such as wearing a seatbelt and using the turn signal) is permitted by Jewish law, despite the inherent small risk
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• The concept is derived from the statement in the book of Psalms: “God watches over the simple.” (Shabbat 129b; Yevamot 71b. See also Avodah Zarah 30b; Nidah 31a and 45a; Ketubot 39a; Yevamot 12b)
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• Baba Metzia 111. The Talmud asks: “Why does the worker climb the tree and risk his life? Is it not to earn his wages?” Therefore, the least we can do is pay him on time!
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• Leviticus 19:16
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• Baba Metzia 62a. The basis for the fundamental principles guiding how much risk one may take to save someone else is discussed in two sixteenth century responsa of Rabbi David ben Solomon ibn Avi Zimra (Radbaz). The Radbaz establishes that one is obligated to undertake at least a small degree of danger to save one who is endangered, but that if the degree of danger approaches 50 percent, one is a pious fool for risking his life. See Responsa Radbaz, Vol. 3:627 (1052) and 5:318 (1582). However, see the commentary of Rabbi Yechiel Michel Epstein, Aruch HaShulchan, Choshen Mishpat 426:4, who writes that while the Babylonian Talmud does not appear to sanction undergoing risk to save another, “However, all is according to the circumstances and one must evalutate the situation (the true risk) rationally and not protect oneself excessively…”
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• Under certain circumstances, Judaism sanctions war, the death penalty, and giving up one's life rather than transgressing certain prohibitions, all of which subordinate preservation of life to a greater ideal
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• Emden Y., Mor U'Ktzia, 328 (also excerpted in Responsa Tzitz Eliezer, 4:13)
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• Avodah Zarah 27b
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• The case in the Talmud takes place when the Roman Empire ruled Israel, had outlawed the Jewish religion, and was known to be hostile to the Jews
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• Feinstein M. Iggrot Moshe. Yoreh Deah III. 36, Moriah Offset Company: New York, 1982
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• Bleich J. D. Survey of recent Halakhic periodical literature: hazardous medical procedures. Tradition 2003; 37(3)89–90, Rabbi J. David Bleich, Professor of Law at the Benjamin Cardozo School of Law and Professor of Talmud and Director of the graduate program in Jurisprudence and Family Law at the Rabbi Isaac Elchanan Theological Seminary, argues that a person with a progressive lethal disease that has a life expectancy of greater than one year may sometimes be treated as one with only short-term life (chayei sha'ah) with respect to risky treatment. If postponing the risky treatment until the patient is within one year of death will decrease the chances of treatment success, then he argues that the patient may be treated as having short-term life and treated in the present
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• Responsa Shvut Yaakov 3:75; Gilyon Maharsha Yoreh Deah 155:1; Chochmat Adam (Binat Adam 73,93); Responsa Binyan Tzion 111; Tiferet Yisrael, Yuma 8:3; Responsa Achiezer 2:16:6, Iggrot Moshe, Yoreh Deah II:58 and III:36; Responsa Tzitz Eliezer 4:13. Bar Ilan, N. Regarding One Who Donates a Heart or Liver for Transplantation, Assia, Vol. 7 1994, pp. 177 (cited in Encyclopedia of Jewish Medical Ethics; Feldheim: New York, 2003, pp. 905)
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• Feinstein M. Iggrot Moshe. Choshen Mishpat II, 73: 5, Moriah Offset Company: New York, 1985. Rabbi Feinstein rules that practically speaking, physical coercion of a competent adult is not an acceptable approach to convincing a patient to accept necessary medical care. Rabbi Feinstein suggests that non-physical coercion is only permitted for cases where the patient wants to avoid the pain and discomfort involved in a treatment that the consensus of medical opinion determines to be necessary. In a situation where the patient lacks confidence in the medical opinion that he has received, then the patient must be convinced of the appropriateness of the suggested treatment and coercion is not appropriate
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• Feinstein M. Iggrot Moshe. Choshen Mishpat II 1985; 74: 5, relates the degree of autonomy in choosing treatment for a terminal illness to the degree of risk and certainty of success
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• The distinction between required success rate and survival rate is subtle, but does exist. Nevertheless, since survival is a more specific and well defined outcome, for the sake of this discussion, success may be understood as survival (personal communication with Dr. Avraham Steinberg, June 29, 2006)
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• Mishnat Chachamim (cited in Responsa Achiezer 2:16:6); Responsa Chatam Sofer, Yoreh Deah 76 (cited in Pitchei Teshuvah, Yoreh Deah 155:1); Responsa Tzitz Eliezer 10:25:5:5
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• Feinstein M., Iggrot Moshe, Yoreh Deah III:36. It is possible that for true physical pain, Rabbi Feinstein would have been more lenient
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• Emden Y., Mor U'Ktziah, 328 (also excerpted in Responsa Tzitz Eliezer, 4:13)
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• Shulchan Aruch. Yoreh Deah, 241: 13
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• Responsa Tzitz Eliezer, 13: 87
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• Shmirat Shabbat K'Hilchatah. 32, footnote 150
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• Steinberg A. Encyclopedia of Jewish Medical Ethics. Feldheim, New York 2003; 905, Binyan Av, I:50:1 as reported by
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• Chaim Jachter C., www.koltorah.org/ravj/15-12_High-Risk_Medical_Procedures_4.htm
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