Risk: Principles of Judgment in Health Care Decisions
An excerpt from Duty and Healing: Foundations of a Jewish Bioethic
This article is dedicated to the memory of my brother, Gary Freedman, a victor of AIDS.
This unique book has been published on the World Wide
Web, making it accessible to most physicians and others
concerned with the moral infrastructure of medical care.
Interested readers will find the entire book at http://www.mcgill.ca/CTRG/ bfreed/. We are
pleased to present this excerpt from Section 4 of the
book, which is entitled "Risk: Principles of Judgment in
Health Care Decisions." We trust that Benjamin
Freedman's work will engage our readers and stimulate
their interest in this timeless subject.
-- Gordon Nary
This unique book has been published on the World Wide Web, making it accessible to most physicians and others concerned with the moral infrastructure of medical care. Interested readers will find the entire book at http://www.mcgill.ca/CTRG/ bfreed/. We are pleased to present this excerpt from Section 4 of the book, which is entitled "Risk: Principles of Judgment in Health Care Decisions." We trust that Benjamin Freedman's work will engage our readers and stimulate their interest in this timeless subject.
-- Gordon Nary
In the previous chapters I have tried to explain how a regime of duty such as Judaism must retain, in some form, the doctrine of informed consent. As a reasonable, responsible caretaker of his own body, held in trust for G-d, a person is allowed and even required to investigate his or her medical options and to arrive at an informed and appropriate treatment decision. For those shotim, persons who are legally incompetent precisely because (as we have seen) they are unable to discharge the duty to care for the self, proxy decision-makers such as family members are similarly charged.
This chapter deals with the question, How is the appropriateness of a treatment decision determined? Is it possible, in general, to define a set of characteristics that will make a particular decision the right decision for a patient? We have already considered in the context of consent one approach to this question, that the patient is required to conform in all cases and in all respects to the physician's recommendation. As stated by R.Yechiel Mechal Tukatchinski 1:
Once the physician has done his part, and placed before him [the patient] the laws of medicine, and the behavior and nutrition that he requires -- the patient is duty-bound [chayav; emphasis in original] to obey the doctor's orders, no less and no more than the laws of the Shulchan Arukh [Code of Jewish Law] concerning the prohibited and the permitted, as a mitzva of the Torah: "You shall take great care of your souls."
This approach, grounded in the view that in general a medical recommendation expresses a clear and unique treatment approach that is unambiguously in the patient's interest, was rejected. More typically a health care decision is made under conditions of uncertainty; requires a weighing of costs and risks as well as prospective benefits; and consequently involves a range of responsible choice. But the moral question still remains: When making health care decisions, what risks and harms is a reasonable caretaker permitted to undergo, under what circumstances, and to what ends?
Jewish tradition affords a variety of principles to deal with this question, which will be the subject of this chapter. As before, while the material to be presented is largely drawn from Jewish sources, I believe it has more than parochial interest. Any religious or moral tradition that maintains that persons have self-regarding obligations, or, as some traditions put it, must express stewardship in their decisions, faces together with normative Judaism the question of how to discharge these duties in the health care realm. My discussion will be limited to this personal ethical issue, and is not primarily concerned with the question of when if ever a patient may be compelled to act responsibly, or to undergo treatment that he or she was duty-bound to accept. Also, because this study is restricted to the self-regarding obligations of the reasonable caretaker, I will not deal with the important topic of other-regarding obligations and self-sacrifice. Finally, as has been true throughout this book on the elements of a Jewish bioethics, I will not explore such complicated questions as arise, for example, when one principle conflicts with another.
Why is life-prolonging treatment refused?
The following consultation notes concern two cases of the sort dealt with in the sources I will present below. The first case involves a patient's refusal of recommended treatment, the second, refusal on behalf of a patient by a proxy. Both cases present fairly dramatic, life-and-death decisions, as does much of the Jewish literature itself. And both raise the basic question of responsible stewardship: Under what circumstances and for what reasons may a person responsibly refuse a medical recommendation?
Ethics consultation: A patient's instructions for no-code, and physician's denial. Mr. S is a 78-year-old man in the coronary care unit. He had just undergone a balloon angioplasty (a surgical procedure to open a blocked or narrowed artery of the heart). He was described to me on the phone as fully alert and competent. Mr. S had instructed his doctor and others in the unit that in the event of an arrest or sudden worsening of his condition, he does not wish to be resuscitated or intubated. Upon hearing of these instructions, Dr. T, the surgeon who had performed the angioplasty, insisted that the patient is to be "full code" for at least the next 24 hours. The purpose of the consultation, requested by Dr. V, the responsible cardiologist on the unit, was to clarify the patient's code status in that light.
I came and spoke with Mr. S, together with Dr. V, as noted above. He is a pleasant, intelligent, caring, sensible and sensitive man, concerned that his desires not inconvenience the staff. (At one point, in speaking of his wish not to be resuscitated, he qualified this by saying something like "Unless you really feel you have to because of your job.") He is determined that he not be a burden upon his family, and that if his condition should worsen such that he will not recover independent function, he be allowed to die.
Mr. S was completely competent and appropriate in his manner of speech when I met him. Follow-up of Dr. T's surgical patients is done not by him but by the coronary care unit's staff, so that I did not have the chance to speak with Dr. T. I cannot therefore comment upon his express refusal to abide by the patient's wishes. It is possible that he felt that since there was a heightened chance of reversible arrhythmia secondary to the angioplasty, it is inconsistent for a patient to agree to undergo the procedure and then to prospectively refuse a needed correction of this potential side-effect. This is a reasonable stance for Dr. T to hold, and it is his right to try to convince the patient of its wisdom. There is though no question in my mind that legally and ethically the patient is entitled to have his wishes respected.
Discussion with Mr. S was fairly brief. He explained the intention underlying his decision, and reiterated his wishes. I probed his desires somewhat, trying to ascertain whether there are procedures covered under his refusal which he might not necessarily wish to exclude. It appeared that his desires were predicated less upon aversion to resuscitative measures themselves than to a desire to not be treated if he will not be functional. After clarification, he agreed to a single effort at cardioversion should that become necessary, on the chance that his heartbeat might be easily recovered, but did not wish to go any further.
Patients may refuse treatment for any number of reasons, for example, because they don't think they are so ill as to need treatment, or because they fear the side-effects of treatment, or because they simply don't believe treatment will work. I had guessed that Mr. S's refusal was of the second sort. Although families who insist that "everything must be done" for their relative do not realize this, cardiopulmonary resuscitation (CPR) is far from the clean, painless, bloodless medical intervention that television dramas often make it appear. My guess, that Mr. S wanted to be spared the staged violence that CPR in fact requires, was wrong. His fear was a peculiarly modern one. He was afraid that resuscitation would in fact be successful -- but not successful enough. He refused CPR because he thought it would restore him to a crippled, helpless, bed-ridden life. Setting aside the accuracy of this judgment (I thought his prospects in the event of an arrest were neither as gloomy as he thought nor as rosy as Dr. T may believe), one question Mr. S's decision poses is: Is it responsible for a patient to choose to forgo the possibility of benefit for fear of a bad result? The following, rather puzzling case plays a variation on the same question:
Ethics consultation: Father and sons. A 98-year-old man -- described by Dr. N, a senior neurologist, as "one of our patients in late adolescence" -- was suffering from a bilateral subdural hematoma ("bruises," collection of blood and other fluids between the brain and skull, on both sides of the head) resulting from a fall he had experienced in the previous winter. He required a reduction by burr-holes (a surgical procedure to drain the hematomas). His two sons, one of whom lives in Florida and the other of whom is still in Montreal (both of whom appear to be in their 70s) were refusing to consent to this relatively simple operation.
Until the fall, the elder Mr. M was an active, alert man: mobile, taking walks every day, dabbling in the stock market. His deteriorating condition was not recognized save in retrospect as resulting from a significant event. (He had in fact been investigated immediately following the fall at another city hospital that had failed to rule out subdural hematoma via CT scan.) Over the following months he lost mobility and alertness, and was diagnosed as succumbing to dementia. At the present time, he was receiving artificial support in the hospital and was no longer communicative at all.
In sessions Mr. M's son held with Dr. N, with Dr. N and myself, and finally with me alone, -- amounting to several hours of meeting time in all -- the medical situation was outlined for them. It was possible -- quite likely -- that he would die regardless of the procedure, or even as a result of the procedure; and possible that he would survive in an impaired state. Most relevantly, Dr. N thought it was entirely possible that he could recover to baseline, that is, to the level of functioning the patient had enjoyed prior to becoming ill. Dr. N's "guesstimate" of the relative odds of these outcomes was given, rather loosely, as "low" in the case of death during the procedure ("maybe 10 percent"), and evenly divided as between impaired and fully functional survival.
Given that, the refusal by the sons was puzzling. They appeared to me to be in every way intelligent men who loved their father and wanted to defend his best interests. Yet, I could get no clear reason for their refusal. I was told that he is old, that he has suffered enough, that he wouldn't want this, etc., but each reason offered was unstable (i.e., abandoned when we focused our discussion about them). Also, the sons did not even attempt to consider, and respond to, the reasons why Dr. N felt to the contrary.
For Dr. N, a decision not to operate in this case would be nothing less than age discrimination: A man thirty years younger but with the identical diagnosis and prognosis would be operated upon without any question, and a refusal by next of kin would be overridden. I was inclined to side with Dr. N on this.
As near as I could make out, there were two important factors operating to sustain their refusal. First, over a period of months they had accustomed themselves to the idea that he was in irreversibly failing health due to dementia, and they found it difficult or impossible to re-gear their thinking or decision-making. Second, they wanted the decision to be taken out of their hands, and found that by refusing to consent to the surgery they could escape responsibility.
Late in a private discussion with them, when I thought they were about to change their minds (or at any rate wavering), one asked me what would happen if they still refused. I said that in that case I would talk to the hospital's Director of Professional Services (DPS), and tell him that he ought to consider contacting the office of the public guardian for authority to perform the procedure; and that, in all likelihood, he would so act and the office would approve the operation. After telling them that, they said, "Well, I guess that's what you'll have to do then." They were not at all angry at me for thwarting their desires, and in fact were both pleasant and grateful to me for taking so much time with them on this.
Given this last point, I was left uncertain as to what I would do in the next such case. In particular, knowing that talking about what we would do may give family members an out, should they be left off the hook in this way? I think probably they should -- they should be left free to escape responsibility in whatever fashion they find most natural or least threatening -- but I am still quite unsure.
This case, which took place some time ago, remains vivid in my mind for several reasons: Coming early in my work at that institution, it was the first time that I was involved in an attempt to override the wishes of a patient's next-of-kin (something which as a legal matter was much simpler then than it is now). The patient was the oldest patient on which I had consulted at that time, and the patient's children were the oldest "patient's children" with which I had dealt. Coming to meet them for the first time, confronted by two gentlemen in their 70s -- with one dressed in "full Florida," from white shoes to white belt to white golf cap -- I thought I had come to the wrong room: All of the patient's children with whom I dealt previously were middle-aged.
And I remember it for its outcome. I did meet with the hospital's DPS who agreed with my assessment and immediately sought legal authority for the procedure. (He knew better than I that Dr. N is by no means "quick on the trigger," and was impressed that a physician who is generally very conservative in ordering procedures was adamant that this operation be done.) The scheduled burr-hole reduction was delayed by two days. In the interim, Mr. M experienced an apparently-unconnected coronary event which proved irreversible, and died. In the end, his children were right to refuse, though perhaps for the wrong reasons.
In the following sections, I will explore some lines of reasoning that have been developed in Jewish sources to clarify decisions about health care that involve risk. Traditionally, normative Judaism has been exceedingly risk-averse, preferring in every case to err, if error it will be, on the side of life:
Yet even this tradition has recognized the necessity for allowing a degree of personal judgment, of choice -- even of style -- to operate. I will be emphasizing the scope for choice that some sources of normative Judaism tolerate, as a corrective to the received view expressed above by R. Tukachinsky, among many others. Nevertheless, it is clear that in a regime of duty such as Judaism such choices are subject to strict moral constraint. From the Jewish point of view, as our bodies are not our own property, our choices need to be validated by more than simple personal preference; and yet, as we shall see, choices of personal value and individual judgements of quality of life are often sufficient validation.
Allowable Risks 2: Risking Pain and Life for Quality of Life
Persons value more than length of life; they value quality of life as well. Yet judgments of quality of life are notoriously subjective. It is structurally difficult for a regimen of duty such as Judaism to accommodate the notion of quality of life when understood as the mere expression of individual patient preference; individual preference, if given an important role, puts a perpetual check upon the demands of duty. Nonetheless, a position on quality of life may be established by means of community reflection and, ultimately, preference.
Jewish attitudes towards pain
It would be impossible, for example, to approach the legal question of quantity and quality of life in Judaism without considering the underlying valuational inquiry into Jewish attitudes towards pain and suffering. It is undeniable that Judaism, in common with many other religious and philosophical traditions, assigned some value to suffering and the positive effects it has: "purifying" the soul and leading persons to repent. In principle, then, the Talmud states that it is a privilege to suffer for seven years rather than to die instantly.4 Overall, however, the negative aspects of pain were held to outweigh the positive, so that when the suffering rabbi was asked, "Are your torments dear to you?" he responded, "Neither they nor their reward."5
More ascetic traditions may see pain as a mixed blessing. It would be more accurate to say that for Judaism pain is rather a mixed curse: despite its good points, it is something that one should avoid. A good illustration is found in an oft-quoted incident that occurred while Rabbi lay dying of a painful gastrointestinal illness. (Rabbi Yehuda the Prince, who prepared the Mishna in its final form, was because of his preeminence known simply as "Rabbi."):
This poignant tale found expression in Jewish law. Ran, using it to explain a difficult talmudic passage, ruled that it is a duty to pray for the death of one who is in great suffering.7 There can be no doubt that for at least one important strand in Judaism, it is acknowledged that life can be so devoid of quality that death is preferable.
Alleviating pain as a permitted goal of medicine
A number of practical questions now arise, for example: Is it permissible to undergo risk to life on behalf of alleviating pain? One of the most extensive, recent treatments of this question, by R. Eli'ezer Waldenberg, is a useful point of departure:
Why may pain relief be sought in spite of risk?
One difficulty in reading any response to a case -- whether the response come from a common-law court or from a theologian -- is that of extracting the ratio decidendi, the reason the judge expressed for deciding the case in the way that he did. Three separate (or, in principle, separable) reasons are offered here by R. Waldenberg:
Concentrating upon the first reason, it would follow that the permission to utilize risky methods to alleviate pain applies to any patient. The second reason suggests that clear permission is only present when the patient is dying. The third by contrast implies that the permission is only present when the "risky" treatment (as judged by its potential to shorten life) is not absolutely risky; that is, when it is also possible (equally possible?) that the "risky" treatment may prolong rather than shorten life.
When one case judgment combines different factors, pulling in opposed directions, clarification is usually sought by comparing other judgments on different cases, "triangulating" towards greater precision in the reasoning. This will not work when, as here, the confounding factors are common to the situation under discussion:
How much of these responsa are restricted to the facts of the case before them, and how much of what they say is to be generalized to other cases -- and, how? Consider their handling of the question of pain and survival. I am torn two ways in my reaction to the fact that both of these responsa reject the premise of the question: Asked whether a dangerous treatment may be employed, they respond that the treatment is not dangerous. On the one hand, the statements seem to derive from the "physicalist" approach (see Introduction), and as such to be irrelevant and even presumptuous. After all, these rabbis were not asked about the permissibility of non-dangerous treatments, and they possess neither the education nor the authority to provide scientific conclusions about medical treatments. On the other hand, they point to a fact that is frequently ignored or elided by the questioner. Certainly I have often met with families of incompetent patients who were concerned about the risks associated with pain medication, but who failed to weigh these against the risks associated with pain itself -- often, because they were not told of those risks.
The problem posed to R. Waldenberg is a good example of this. Morphine is dangerous because the doses that may be required over time (as the patient develops drug tolerance) to suppress pain may suppress the patient's breathing. But morphine also may improve a patient's breathing, by alleviating chest pain that causes the patient to take shallow breaths.
Understanding the rabbinic responses to the problem of pain relief
This though returns us to the problem of generalizing these discussions. Is it only when treatments may prolong as well as shorten life, as in the cases of morphine injection and prostate surgery -- or worse yet, in these particular cases of morphine and surgery -- that risky treatments for pain relief may be attempted? Or do they mean to be asserting, for example, as a scientific matter, that in every case pain relief has the potential to prolong rather than to shorten life?
Considering the interplay of the other factors noted in these and related responsa compounds the difficulties. R. Feinstein seemed to join R. Waldenberg in ruling that pain relief is an acceptable goal of treatment. Yet R. Feinstein had elsewhere stated that "if there are drugs that relieve the pain and do not shorten even one moment of life these should be given..."13 This seems to conflict with the inference from Ramban's Torat Ha'Adam that reasons that since all treatment involves risk, risk may be faced on behalf of the alleviation of pain.14 Or should R. Feinstein's statement be understood narrowly, as prohibiting those drugs which are given for the sole purpose of shortening life?
Another issue: Does the concept of pain embrace psychological suffering and anguish for these purposes? As we will see in our later discussion of cosmetic surgery, R .Waldenberg appears to reject such an extension, while other writers15 specifically refer to great psychological pain (sevel nefesh chazak m'od) as an important consideration.
Relieving pain: Ethical as well as medical uncertainty
I find no definitive resolution of these issues. In fact, the theme that seems to emerge from the problem of risk and extreme pain is precisely one of uncertainty, ethical as well as medical. In the meantime, how may a responsible caretaker act under these tragic circumstances? There is no retreating to the quietist principle "sit and do not act," if indeed the imperative to treat encompasses the imperative to relieve pain.
The issue of action under uncertainty appears to be the leitmotif in the following excerpt from R. Feinstein's writings. He is asked whether there is an obligation to treat a patient who is in great pain with the aim of prolonging the patient's life. In the absence of any definitive precedent on this question, he decides upon a procedural rather than a substantive solution; in cases when we do not know what to decide, all we can determine is who should decide.
The procedural solution suggested here is that used so commonly by contemporary bioethics. But in Judaism this procedural approach is the last, rather than the first, resort. It is an admission of failure -- albeit perhaps necessary failure -- to answer the personal ethical question, How should a reasonable caretaker act under the pressure of extreme pain?
Pain relief in extremis: Limits of precedent and of logic
R. Feinstein had no answer to whether a patient in intractable pain should undergo treatment to prolong his life. He could find no precedent on this question from within talmudic discourse or from subsequent commentators, theologians, and jurists. But why was there no precedent? The reason is that this dilemma is itself the product of medical progress, that has come very far, but not far enough. Patients with astonishing damage, with devastating disease, can have their lives prolonged, sometimes indefinitely, by the use of medical technology and expertise. But our ability to sustain life is often far in advance of our ability to eliminate pain and suffering.
In the times of the Talmud, and for centuries thereafter -- indeed, until quite recently -- when the pain was bad enough, and damage serious enough, a person would necessarily die. Not so today. R. Feinstein's failure to find a precedent reflects the fact that modern medicine has, as an unwanted side-effect, innovated the heights and depths of pain and suffering that a person can undergo and survive. Within rabbinic literature, the paradigm cases for maximal suffering are found in the tale of the ten rabbinic martyrs,17 put to death by the Romans for the crime of teaching Torah. The tortures they suffered were terrible indeed, but I believe the potential of a modern hospital to inflict pain and suffering exceeds that of any Roman master of torture, because in a hospital death is not a reliable and timely deliverance. Rabbi Akiva had his skin flayed from him with iron combs; and died. A burning victim today can have his skin flayed as well -- debridement of dead and burned skin -- again and again and again; and can survive being skinned over a major portion of his body, and the infections that will follow, and many surgical grafting procedures thereafter. Rabbi Chanina ben Teradyon, we are told, was burned alive; the torture master had him wrapped in wet cloth to prolong his anguish; and he died. We can go the Romans several better than that today; when our patients are burning up alive with fever, for example. Their ending is not in all cases as merciful as was his.
There is a second reason why R. Feinstein found no answer. even when there is no precedent, logic would ordinarily show the way. But in this case, he found, logic failed him. I do not believe R. Feinstein is alone in finding that logic is an insufficient guide in these extreme cases, in which it seems that whatever you will do will be wrong. The following consultation note illustrates the point:
Ethics discussion: Snowing in October. Mrs. X is a 66-year-old woman with advanced and intractable esophageal cancer. The issue concerned her medical management during this final admission and terminal phase. This note is prepared following a discussion with the attending physician responsible for her basic hospital care, Dr. D, on 2 Oct., that was followed up by a meeting of the medical and nursing team in that unit at 2 pm, on 6 Oct. The patient had expired in the interim. It was felt that the scheduled meeting remained important because of the issues and emotions raised by the care of Mrs. X.
The patient had been cared for by a family physician, Dr. E, and in a later stage by Dr. C, a medical oncologist. Her cancer had not responded to standard treatment, and she opted for treatment on an experimental protocol, which itself failed to arrest the progression of her disease and caused substantial side effects.
In discussions with all three doctors mentioned above, Mrs. X and her husband had expressed the desire that the doctors "provide her with euthanasia," i.e., kill her. The primary motivation for this was anguish, suffering at her state and future prospects, rather than pain itself (although her pain and nausea may not have been fully controlled at all times). She was an active woman who had in the later stages of her illness consented to treatment and re-treatment more in the hope of regaining function and some mobility than for cure. She could not bear being bedridden, and she had asked that her friends not come and visit her because she did not want them to see her in this state.
She was told that euthanasia was not something any of the staff were prepared to consider. At one point, though, her doctor offered to discharge her home with a month's supply of pain medication. That would have permitted her and her husband to arrange her suicide, but this was declined: They wanted her to remain in hospital.
As a result of her suffering, she said, the only time that she is comfortable is when she is sleeping, and not ruminating on her condition. An alternative possibility was offered to her by Dr. C, the oncologist: If nothing else would help, she could be given enough pain medication so that she would sleep continuously, i.e., be "snowed under." This was the choice she settled upon, with the agreement of her husband. Her children were aware of the arrangement, and acquiesced as well.
A period of more than a week was required to find the right dosages and combinations of medications to achieve the desired result. Dr. D was left with this task, and was frustrated and rebuffed in efforts to get some advice about this from anesthesiology and palliative care specialists in other city hospitals. In the interim period Mrs. X, in times of lucidity, repeated her desire that this be done. Even after this medically-induced state of coma was achieved, however, her husband continued to insist that she was suffering and should be euthanatized. After seven to 10 days or so of being snowed Mrs. X did expire.
The discussions were intended to review and explore this case and its associated issues and feelings. I had been told that several nurses were uncomfortable with the course of action chosen, although at the meeting, attended by many nurses, only one admitted to feeling this way. (She had asked not to be assigned to this patient, and her wishes were respected.)
Nevertheless, many of those affected, doctors and nurses alike, expressed discomfort or feelings of failure about the course of events. These feelings were reinforced by the negative feedback experienced when consults on the treatment regimen were requested. I experienced this myself, in the reaction I had gotten from a colleague when discussing this case: He believed this case was mishandled. There should have been a better palliative resolution, in his view; he suggested that counseling and a psychiatric consultation should have been pursued. He pointed to the ambiguity of decisions made by Mrs. X and her husband, as in their declining the opportunity to be discharged home. Another example: While her sleeping was being titrated, when awake, Mrs. X did eat at mealtimes.
The question of whether "there was anything further that could have been tried" was discussed at some length. The question of psychiatric involvement and counseling had not been raised with the patient, but all who know her were certain she would have rejected this: She was not crazy, and her reaction was a reasonable and human one to terrible life circumstances. It was also felt that even had she consented psychiatry had nothing useful to offer her.
That apart, there were other things that could have been tried -- as there always are; but the question is, Should they have been? She knew how she wanted to spend the very limited time she had remaining, and it was within the power of her doctors to supply that. This was not a case in which we immediately agreed to a patient's request to be snowed, simply because that is how the patient wants to be treated. Here we were faced with a lucid woman who had tried standard and even experimental treatment, and failed both; and was at the end of her rope. Will all her time remaining be spent in futile, paternalistic efforts at finding a medical or psychiatric magic bullet that will reconcile her to a brief, bedridden existence?
Everybody agreed with the concept that the patient as a person needs to be treated under concepts of total pain burden, that does not give more significance to "physical pain" than to psychological anguish; and yet paradoxically everyone would have felt more comfortable in reaching this decision to snow the patient if it were the only way to control physical pain. I suggested, and some agreed, that it would be wrong to give in to this ill-grounded, medicalizing prejudice.
A consensus was reached at the second meeting that the course of action was proper under the circumstances. Still, we need to realize in advance that any time such a decision is reached it can always be second-guessed, and will always carry with it a burden of guilt: While a patient's request to be snowed is resisted and alternatives are pursued, we are wrong in inflicting unwanted treatment; once a patient's wishes are respected, we can always say that something further should have been tried. It was because no resolution is fully satisfactory that the outside consultations were so negative, rather than because the particular resolution reached was wrong. Finally, and for the same reason, it was agreed that staff who disagree with this form of management should have their wishes to be relieved of looking after the patient respected if at all possible.
I do not mean to suggest, in quoting this case, that any of the rabbinic authorities whose views were described above would have validated its resolution. I have not seen the issue discussed, and am uncertain how they would react. Certainly, though, the extreme difficulty which all of us felt in reaching and discussing this resolution seems to me to echo in the last-quoted excerpt of R. Feinstein.
Pain and wounding; pain along a continuum
Pain is, of course, not merely the absence of pleasure; but the absence of pleasure is, or can be, a component of pain. The next talmudic passage delves into this point regarding the reasonable caretaker's responsibility to the self in the course of clarifying a statement that persons are forbidden to wound themselves. In analyzing proposed foundations for the rule against self-wounding -- two of which are rejected, while the third seems to be accepted -- the Talmud at the same time implicitly states parameters for the tradeoffs which a reasonable caretaker may undertake:18
The reasonable caretaker is enjoined against wounding himself (chavala), and its accompanying suffering. The prohibition is important in the context of considering when consent to surgery, or even to invasive medical treatments, is consistent with the responsibilities of the reasonable caretaker. The first proposal asks us to derive the prohibition against self-wounding as a corollary deriving from a Biblical verse understood to prohibit suicide. This proposal is, though, rejected. "Killing is different" from "wounding" and pain; the laws regarding quantity of life are incommensurate with those regarding quality of life. A second proposal is therefore offered:
The second proposal reasons from the general prohibition against causing wanton damage to a specific prohibition against causing damage to one's own physical self. This too is set aside, by citing the curious story of R. Chisda, who chose to let his skin be scratched rather than let his garments be torn, with the accompanying wastage and financial loss.
In rejecting the proposal, the Talmud in fact lifts the analytic divide often erected between risk-benefit analysis, which only considers harms to persons themselves, and cost-benefit analysis, which at least includes (if indeed it does not restrict itself to) financial considerations. This passage, and its tale of R. Chisda, stands as a source for the proposition that at least at certain minimal levels of harm, the responsible caretaker is permitted to factor in to decision-making the financial implications of choice. Having established that irreparable financial harm may outweigh minor physical wounds that will be self-healing, it is impossible to derive a prohibition against the latter from the former.20
A third proposal is therefore attempted. It derives from the Biblical laws of a nazirite (nazir), one who has voluntarily taken an ascetic vow to refrain from some of the ordinary pleasures of life, e.g., drinking wine or grooming his hair. Following the nazaritic period, this person is required to bring a sacrifice at the Temple, a sin-offering. The question is, What is the sin which he has committed that requires this act of atonement?
The prohibition against self-wounding is at last grounded upon the proposition that the reasonable caretaker should not deny himself benefit in the world without adequate motivation. Elsewhere, the lesson is put this way: "In the future [i.e., in the time of final judgment], every man will be called to account for everything he had seen and not eaten,"22 i.e., every lawful pleasure which he had denied himself.
To sum up: In general, the active causing of wounding and its accompanying pain is judged along a continuum that extends to the withholding of allowable pleasures. Suffering a wound to be caused, or even causing it oneself, is permitted to the person exercising responsible stewardship, provided this is done for a proportional cause, as in the case of R. Chisda; contrariwise, the denial to oneself of a pleasure is impermissible if inadequately motivated. Yet at the limit there is a break in this continuum: "Killing is different," and the ordinary weighing and counterbalancing of considerations that suffices when judging actions that involve self-wounding (chavala) and suffering (tza'ar) do not apply in the same way when considering serious risk to life (sakana).23
Considerations of risk and wounding: The case of cosmetic surgery
These principles of responsible judgment are illustrated well in some of the rabbinic literature that has appeared concerning the permissibility of cosmetic surgery. The range of views has been summed up by Prof. Abraham S. Abraham24 as follows:
The issues at stake in the argument may be discerned by examining the view of one of the opponents of cosmetic surgery; as will appear, his rejection is at best equivocal:
This author appears to be dealing with a clear case of cosmetic surgery, "done for the sake of beauty" alone, rather than with the broader class of plastic surgery that is performed for functional as well as aesthetic reasons. The issue resolves itself into two questions: First, Is it consistent with the task of a reasonable caretaker to undergo self-wounding and its accompanying pain (chavala and tza'ar) on behalf of the promised improvement of appearance? Second, Is he allowed to undergo risk towards this end?
The first question is resolved in the affirmative. Consistent with the talmudic passage discussed above, a person is permitted to choose to undergo a degree of self-wounding and pain on behalf of that which he or she judges to be a greater good. The author adverts to Rambam's discussion of the general prohibition of wounding, that is, when wounding is in itself and necessarily prohibited. There exist in fact two texts of Rambam on this, that qualify, in different ways, the general prohibition. According to one, wounding that is done in a humiliating manner (derekh bizayon) is prohibited; according to another, wounding done in a belligerent manner (derekh nitzayon) is prohibited. Whichever text is chosen, wounding done or allowed on behalf of a proportional benefit has not been per se prohibited. (There will, of course, be differing opinions as to what shall count as a proportional reason. R. Moshe Feinstein, in his unequivocally permissive responsum, dealt with a woman seeking self-beautification on behalf of improving her prospects for marriage.)30
The second question, regarding the risk associated with surgery, is the sticking-point, for "Killing is different." The author of Minchat Yitzchak leaves this question undecided. It is undeniable that the person seeking cosmetic surgery may be suffering greatly from his appearance; indeed, Tosfot31 had stated that there is no greater pain than that suffered by one who is embarrassed to go out amongst people. But while such considerations can override the prohibition against self-wounding, may they override that against endangering life itself? Is the person seeking surgery so distraught that he may be considered to be suffering from a dangerous disease?
It appears that this question of risk is that which divides the other writers on cosmetic surgery. R. Waldenberg, who unequivocally prohibits cosmetic surgery,32 rests his case upon the view of Ramban in Torat Ha'adam, who had stated that every single medical intervention involves risk and therefore specific permission had to be supplied to the physician to engage in medicine. This permission, in his view, does not extend to interventions done for cosmetic rather than medical reasons.33 By contrast, R. Feinstein, who unequivocally permits cosmetic surgery, does not raise the question of risk in his responsum at all. It may be that what stands between them is a question which will be discussed in a later section, namely, Is there a level of risk which is so low that it may be disregarded by the reasonably conscientious caretaker? If so, where do we locate that level? For, turning to the question of risks that are allowed on behalf of functioning, there is indirect effidence that R. Feinstein holds that the lowest common denominator of surgical risk, the risks that necessarily accompany any surgery (e.g., post-operative infection; complications of anesthesia) are not great enough to be considered even "doubtful risk"(ch'shash sakana). 34
The assumption of risk and social functioning
In cases of cosmetic surgery, it had seemed possible that whereas pain and wounding may be permissible towards this end, serious risk to life is not. Such a stance is consistent with an extremely conservative reading of the idea that the person is charged with responsible caretaking of the body, and with the bias for life and safety noted at the beginning of this chapter.
But, is it then the case that such serious risks to life may only be voluntarily assumed on behalf of a chance of a prolongation of life itself, as is done by the dangerously ill who agree to surgery? This surely cannot be true, as R. Ya'akov Ettlinger, a German authority from the nineteenth century, notes:
A special prayer of thanksgiving had been composed to be recited by those who have been delivered from situations of great danger. When must this blessing be recited? Some of the paradigm cases include situations in which danger was forced upon the victim, for example, one who recovered from a serious illness or one who was released from prison. Other such cases involve dangers that typically have been voluntarily assumed, including those presented above: those who cross the sea or travel over the desert. These feats, so commonplace today, were the source of extremely serious danger during the time of the Talmud and for over a millenium thereafter. How was it permissible for persons to assume such serious risks?36
R. Ettlinger innovates the following approach to resolve this problem:
This radical view, while noted (if not adopted) by later authorities, is logically hard to follow. R. Ettlinger seems to be saying that for present danger, the smallest chance must govern; for danger that has yet to eventuate, any risk of death up to the 50 percent level is morally acceptable. Logically, when do we say that danger is present; when, that it has yet to eventuate? Do you step into danger when you step into a boat; into a boat planning to go where none has gone before -- or, where many have gone but from which just over half have returned? Into a seaworthy boat; into a boat that will almost certainly spring a leak, but which is dry at the moment; into a boat that is already leaking but has not yet foundered, whose captain tells you that there is a "better-than-even" chance that it will stay afloat?
As a practical matter too this view is not acceptable. I have heard prudence caricatured by the fool's saying, "Why worry until something bad happens?" R. Ettlinger's responsum implies that this is an acceptable stance for the reasonable caretaker; but it is of course antithetical to the foresight and caution which is expected of a caretaker.
Acceptable risk and occupational exposure
There is, fortunately, a much better approach to the problem R. Ettlinger poses. A person does not act irresponsibly in exposing himself or herself to occupational danger, to risk undertaken on behalf of livelihood; and, to some extent, the allowable level of danger may rise according to the desperateness of one's economic straits. One source for this principle arises in a discussion of the Biblical prohibition against delaying the wages of a worker:
This principle of allowable risk is applied by R. Yechezkel Landau, an 18th-century rabbi from Poland, known eponymously for his collection of responsa, Nod'a BiYehuda:
In an almost off-hand, quite elegant, way, R. Landau resolves the question posed by R. Ettlinger. One who "crosses the sea" may do so because he is a merchant and this is his job, though he could not have done so out of personal preference, for example, as recreation.
How much risk is permitted, on behalf of how much gain?41 R Landau issues his ruling on behalf of a "poor person" who "has no choice"; but these words should not I think be taken too literally. The responsum extends permission not only to those who need to take risks on behalf of having food to eat -- bare subsistence, michya -- but also to those whose occupation, parnasa, entails risk. The dignity and value which Jewish sources have traditionally attributed to labor may be the underlying basis for this extended permission. The poor person, after all, has the choice of being supported by others: In 18th-century Poland, by the communal provision to the poor of foodstuffs (tamchui) and money for the necessities of life (kupa); in 20th-century America, by welfare and foodstamps, if not by a less-risky occupation. (The contemporary American authority, R. Moshe Feinstein, stated that a person is permitted to make his livelihood by engaging in dangerous sports.)42
Nor can the principle be limited to occupational requirements, or other financial circumstances. Persons are more than just economic units. Rather, it must be understood as encompassing both occupations and any other important social role (e.g., marriage, and filial duty) that person occupies or plans to occupy.43
Medical risk and social roles as a continuing issue
These questions continue to arise today, in debates over occupational risk and the existence (and propriety) of associated "risk premiums," hazard pay provided to those who undertake dangerous tasks.44 And new ones loom on the horizon, as in the issue of whether persons at extremely high occupational risk of contracting AIDS should be compensated for this risk over and above compensation for the work they perform.45
In medical jurisprudence, too, we find recognition that such occupational concerns are legitimate on the part of patients. The landmark Canadian case on informed consent to medical treatment, Reibl vs. Hughes,46 turned on just such an issue. The patient, Mr. Reibl, had not been informed of the risk that a recommended surgical procedure (carotid endarterectomy) carried with it a substantial risk of surgically-induced stroke resulting in death (estimated at 4 percent) or permanent paralysis (estimated at a further 10 percent). There was no dispute that the procedure was indicated; without it, Mr. Reibl faced a high risk of stroke, that would grow year by year. The average reasonable person would choose immediate surgery, the court found, trading in the higher risks of stroke caused by a narrowing of an artery for the lower risks of stroke caused by surgery itself. But Mr. Reibl was not an "average, reasonable patient," as the surgeon was or should have been aware. A long-time employee of a large firm, he would have kept working for the brief period pending until his pension benefits were assured, and so delayed his surgery. In Canadian law, the concept of an "average, reasonable patient" cannot be understood without considering that person's specific life plans, including economic circumstances. In Jewish law, the concept of an "average, reasonable caretaker" is similarly socially conditioned.
(The difference between the Canadian regime of rights and the Jewish regime of duty should however be noted. In Canada, if some fact is potentially relevant to the decision a reasonable patient might reach, the patient has a right to be informed of this. In Judaism, if some fact is potentially relevant to the decision of a reasonable caretaker, the patient has a duty to consider that fact and take it into account. In either case, the doctor has a duty to disclose the information; in the case of Canadian law, that duty is secondary to the patient's right; in Jewish law, the doctor's duty is secondary to the patient's duty.)
These principles though leave open some difficult questions. Social circumstances are ill-defined, and represent a wild card in decision making. We have grown used to a world in which the traditional sources of risks -- travel, food, work, childbirth, etc. -- have been driven, through technological advance and vigorous government regulation, to unprecedentedly low levels; in some cases, one-hundredth or even one-thousandth what they had been in the time of Nod'a BiYehuda. It is easy to imagine that the level of risk accepted without comment two hundred years ago would be ruled completely unacceptable today on behalf of anything other than the most urgent activities.
Talmud Bavli Yoma:83a. (back)
TB Sota:20a. (back)
TB B'rakhot:5b. (back)
TB K'tubot:104a. (back)
Ran on TB N'darim:40b. (back)
Cf. "From the words of Ramban it explicitly follows that bloodletting itself poses a certain danger, and nonetheless bloodletting for medical purposes was ruled permissible. From that, apparently, it follows that a person is permitted to expose himself to danger on behalf of medical treatment and the alleviation of pain." R. Leivi Yitzchak Halperin. Regarding an Operation: Is it Permissible to Accept Danger for the Sake of Relief... (Hebrew). In: R. Moshe Hershler, ed. Sefer Halakha Ur'fu'a 3. Jerusalem: Regensberg Institute; 1983:142. (back)
Orach Chaim:328. (back)
TB K'tubot:62a. (back)
R Eli'ezer Waldenberg. Responsa Tzitz Eli'ezer 13, sec 87; cf. also Tzitz Eli'ezer 12, sec 18 (7) regarding the permissibility of dangerous operations performed to heal great suffering, but not to protect or prolong life. (back)
R Moshe Feinstein. Responsa Igrot Moshe, Choshen Mishpat 2, sec 73, pt 9. See below on the possibility that R Feinstein did not view the risk common to all operations as morally considerable. (back)
R Moshe Feinstein. Responsa Igrot Moshe, Choshen Mishpat 2 sec 73. Emphasis added. (back)
See above, n. 10. Cf. also Nishmat Avraham, Yore Dei'a 155:48-49, speaking of "a patient who is not in danger but who is suffering: May he undergo a risky procedure? The author of She'arim M'tzuyanim B'halakha writes (sec 190), 'Our present custom to perform operations not necessary to preserve life, may perhaps be said to at any rate involve pain, and thus to be permissible to save him from pain. . . .'" (back)
R Shlomo Zalman Auerbach. In: Minchat Shlomo, sec 91, pt 24. (back)
R Moshe Feinstein. Responsa Igrot Moshe, Choshen Mishpat 2, sec 74. (back)
The story, recounted in several midrashic sources, is most familiar through compilations of these sources included in the liturgy, eg, the Ele ezk'ra portion of Yom Kippur's Musaf prayer. (back)
TB Bava Kamma:91b. (back)
Genesis 9:5. (back)
Note Tosfot, TB Bava Kamma:91b, s.v. Ela hai tana. This has been read as standing for the proposition that chavala done for a proportional reason is nonetheless prohibited. R Moshe Feinstein (An Operation Upon a Girl for her Self-Beautification. In: R Moshe Hershle, ed. Halakha Ur'fu'a 1. Jerusalem:Regensberg Institute; 1980:323-327) therefore notes the apparent contradiction between Tosfot and what appears to be the conclusion of the talmudic passage, that allows for chavala undertaken for sufficient reason. I believe there is an alternative reading of the Tosfot possible: Tosfot were not speaking from the point of view of the law, but were rather elaborating the second proposal the Talmud considers, according to which self-wounding falls within the prohibition of wanton destruction. From that point of view, destruction per se is prohibited. Since this view fails to account for the fact that destruction undertaken for a proportional reason is permitted, it was rejected by the Talmud, and does not stand as a valid legal proposition. (Tosfot there also deals with the first proposal, also rejected.) (back)
Numbers 6:11. (back)
Talmud Yerushalmi Kidushin 4:12. (back)
Another example of a legal distinction between harm and danger occurs in respect of filial obligation. Sefer Chasidim, sec 234, notes that when a father commands his son to bring him something to eat or drink which the doctors had prohibited, the son is not obliged to fulfill the father's request. Birkei Yosef qualifies this by saying that this is only true if the food or drink is dangerous, that is, represents sakana. If, however, it is only going to harm him, but not endanger him, the son should obey. (Cited in: R Ya'akov Pinchas Feldman. Sefer Kibud Av V'em. Jerusalem: privately printed; 1990:17 (back)
Nishmat Avraham, Yore Dei'a 155:49. (back)
Responsa Chelkat Ya'akov 3, sec 11. R Moshe Feinstein, Halakha U'R'fu'a 1:323. Sh'arim M'tzuyanim B'halakha, sec 190. R Jakobovitz, Noam 6:273. (back)
R Eli'ezer Waldenberg. Responsa Tzitz Eli'ezer 11, sec 41; Responsa Minchat Yitzchak 6, sec 105. (back)
In his note 45. (back)
Hilkhot Chovel Umazik 5:1. (back)
Responsa Minchat Yitzchak 6, sec 105, pt 2. (back)
R Moshe Feinstein. An Operation Upon a Girl for her Self-Beautification. In: R Moshe Hershler, ed. Halakha Ur'fu'a 1. Jerusalem: Regensberg Institute; 1980:323-327. (back)
TB Shabbat:50b s.v. Bishvil. (back)
R Eli'ezer Waldenberg. Responsa Tzitz Eli'ezer11, sec 41. (back)
R Waldenberg does, however, discuss at some length why chavala prohibits such surgery as well; and, denigrates the intent of one seeking, by such surgery, to improve upon the wisdom of his or her Maker. (back)
See R Moshe Feinstein, Endangering temporary life on behalf of possible lengthening life. In: Halakha Ur'fu'a 1:131-142 at 137-138. He permits there an operation that might restore a patient's mobility provided it does not pose a "doubtful risk" (ch'shash sakana). It must follow that those risks posed by any operation, eg, postoperative infection, anesthetic reaction, etc, are not even considered to be "doubtful risks." They fall below a threshold of concern, perhaps along the lines described below. (back)
Responsa Binyan Tziyon sec 137. (back)
On the question of whether the blessing may be recited by a person who had negligently become ill, see Responsa Yechave Da'at 4, sec 14. (back)
Ibid. R Ettlinger bases his view upon a second example demonstrating that some risks may be ignored. "A further proof for this derives from what is said in TB B'rakhot, 33, 'even if a snake is coiled about his ankle he should not interrupt (recital of the Shema prayer); R Sheshet stated, This was only taught regarding a snake; were it a scorpion he does interrupt'; and Rambam explained in his Commentary on the Mishna (similarly, R 'Ovadia Bartenura in his Mishna commentary) that since a snake does not bite in most cases, but a scorpion bites immediately, he should interrupt. Can we not question this: "What significance is there to the fact that the snake does not bite in most cases, inasmuch as we do not rule in matters of protection of life after the majority?" -- unless the reason is this: Here, there is no danger to life." A response to this second example is implicit in the discussion later in the section on risk in my work Duty in Healing. (back)
This article was provided by International Association of Physicians in AIDS Care. It is a part of the publication Journal of the International Association of Physicians in AIDS Care.