a. Medical care of a Patient for Whom no Cure is Possible

b. Assumption of Risk in Attempting a Cure

1. You ask for further clarification of responsum no. 73. The analysis I gave is lucid and leaves no room for misinterpretation. Nevertheless, I will reiterate: If physicians have no means of healing a terminal patient or of improving his quality of life by reducing his pain, but do have the ability to keep him alive for a limited time, then they should not do so. This conclusion can be seen from the incident with Rebbe [Kesubos 104a], where the prayers of his students did not bring about a cure or even ease his lot, but only succeeded in keeping him alive in an anguished state. His maidservant, who was wise in Torah knowledge, prayed that the angels above would overpower the prayers of the students. When she realized that her prayer was not efficacious because of the continued efforts of the students, she did something to quiet their prayers. She threw down an urn and interrupted the prayer service, [thus] allowing Rebbe's soul to depart.

It is obvious from the Gemora that this was recorded to teach the halachah and is not just a "story." The Ran, in tractate Nedarim 40a, uses this incident of Rebbe to rule that it is proper to pray for someone's death if prayers for him to live without pain are unsuccessful.

It must be noted that there is no comparison between our prayers and those of the Tannaim in the time of Rebbe. The fact that our prayers are not answered and a patient does not recover or does not improve enough to become free of pain is no evidence that prayer will not be successful in the future or if offered by someone else. Therefore, nowadays it is not proper to pray for someone to die. However, we may infer from this incident that if physicians have no way to cure a dying patient or ease his burden, but do have the ability to prolong the dying process, they should not intervene. On the other hand, if a consultation has been requested and the expert physician has not yet arrived, it is certainly appropriate to do whatever is necessary to keep the patient alive until the new physician arrives.

In such a circumstance, one must ask whether the patient is really "incurable," because there is still hope that someone else may find a treatment that can help him. In my opinion, you need not ask the patient's permission to give him whatever drugs or treatment are necessary to prolong his life until the consulting physician arrives. Even if he objects, it would be appropriate to disregard his objection. This is so because there is still hope that the new physician will find a cure.

Clearly this is also the opinion of the Rema in Yoreh De'ah 339:1, for he not only permits but even requires the cessation of the treatment that is prolonging the dying process, even though the individual will die more quickly. The life of anguish which this goses is experiencing justifies the cessation of therapy. If the patient is not in pain, there is no rational reason why any effort should be made to shorten his life, even though he is in a terminal condition. It may very well be that there is no Biblical obligation to cure such a patient, or rather, to attempt to prolong his life. The commandment "And he may heal" may not apply to a [physician treating a] patient for whom there is no potential for healing. Nevertheless, it seems obvious to me that if the patient is not suffering any pain—in other words, if there is no burden in his maintaining his present state—there is no reason why he should not be given all medical care to prolong his life as much as possible.

The ruling of the Rema to remove the pellet of salt from under the tongue of the dying patient, which was placed there to prolong his life, surely is based on the assumption that the patient is experiencing intractable pain.

Doctors should not offer drugs or treatment unless they are convinced that these may help the patient. Sometimes, however, even if there is no real medical advantage to be gained, there may very well be a psychological advantage in that the patient does not feel neglected as long as some treatment is instituted. This placebo effect is often of great value to the patient. In deciding that there is no treatment of value to the patient, it is important that as many physicians as possible should be consulted, even those whose prestige is less than that of the physician in charge of the patient. Occasionally, a young physician may come up with an idea that an older physician has not considered. Even in Torah study, we have the warning: "Error can sometimes be caused by sharpness of mind." With reference to physicians this is even more true, because it is often very difficult to determine which of them is more brilliant, more expert.

In addition, healing requires the intervention of Hashem, Who chooses the right physician for the patient. The world-renowned physician may not be the one that Hashem has chosen for the mitzvah of healing this sick patient.

You expressed concern about my introduction of the concept of quality of life, which I did by pointing out that in terminal patients a life of pain need not be preserved. The medical community [you said] will extend this concept to the physically or mentally challenged, and that may lead to involuntary euthanasia. In truth, I do not see how my analysis will make this eventuality more likely to happen. Nothing in my analysis even hinted at a concept of quality of life which would exclude those who have mental or physical disabilities. It is, or should be, absolutely clear, without any doubt, to anyone who has studied our Torah and who fears Hashem, that one must heal or save every individual without any differentiation based upon his intelligence or physical stamina.

In cases of triage, the Talmud in Horios 13a establishes a list of priorities. The list presumes that the requests for help come simultaneously, so that there is no time gap between the two requests. Otherwise, the physician is obligated to respond to the first individual who asks for his help, even if a little later someone higher on the priority list is also in need of his help. Abandoning abandon the first patient in order to help the second is forbidden. The only time the physician should go to a second call is when it comes from a patient in danger of his life, and the first patient has been stabilized, so that he can safely respond to the new medical emergency. A very difficult decision is imposed upon the physician when more than one person needs his help. He must direct his prayers to Hashem to give him the wisdom to make the correct choice in cases of patient triage.

2. This concerns a case where a patient is terminally ill, but then acquires a second illness for which there is a cure. [For example, a terminal cancer patient develops pneumonia, an illness for which there is a cure. Should he be treated for the pneumonia even though the treatment, if successful, will restore him to his life of pain from the original illness?]

If the patient's illness is causing him great pain, and he would prefer to die rather than live under these conditions, it may well be proper not to treat him in any manner that would prolong the dying process. This means that it might be best to withhold treatment for the second illness, since if the pneumonia is cured, it would impose upon the patient the burden of his first disease, for which relief is not available.

This is a decision which the patient must make. When the patient is incompetent, his family must be consulted. The family's role as guardians for an incompetent patient is established as a priority, since the mitzvah to heal initially falls upon the family. The family's guardian role is also necessary so that a thoughtful opinion may rendered before any treatment is initiated. A patient cannot be treated as if he had no opinions or rights simply because he is now incompetent. However, the family's authority is not absolute. It is subservient to medical opinion. The key decisor in such cases must be the learned physician, who then discusses his recommendations with the family, and if they are uncomfortable with his opinion, they can call in another physician. In fact, the community is obligated to provide money from its charity funds or to raise money from donors in order to provide proper medical care for an individual whose illness is life-threatening and no physician has offered a treatment that is expected to be successful.

I would like to add another comment concerning the halachic import of the story of the martyrdom of Rebbe Chanina ben Tradyon in tractate Avodah Zarah 18a. Whereas Rebbe Chanina ben Tradyon would not open his mouth to hasten his death, we may infer that if his mouth had been open, he would not have been required to close it in order to prolong the dying process. From this we further infer that a patient does not have the obligation to prolong a life of pain. [Note: The analysis of the halachic implications of the executioner's actions, discussed above on pp. 42–43, requires further study.]

I have devoted lengthy responsa to these questions because they involve life-and-death decisions and often lack the clarity that would enable one to make a [proper] halachic decision. It is, therefore, very important to utilize the services of as many learned sages as are available; to consult as many physicians as possible; and to arrange for rabbis and physicians to discuss each case thoroughly, so that, with the help of Hashem, a proper decision can be reached.

3. Should intravenous feeding be provided to a terminally ill patient for whom there is no means of easing the painful burden he bears, and should this be done even against his will? Your question stems from my previous responsum to the physicians concerning providing ventilator assistance to a patient for whom there is no hope of cure. I pointed out then that oxygen hunger is a very painful experience and, therefore, that the ventilator should be provided, not for the sole purpose of prolonging life, but so as to ease the pain that the dying patient is experiencing. Quite clearly, providing nutrition to a patient is beneficial. In cases where it is better not to feed a patient, as when there is a high fever, then, of course, that becomes the medical decision for the benefit of the patient. In the absence of any such contraindication the patient should be fed, because food will strengthen his general constitution and enable him to bear his illness better. It is proper to urge a patient to eat when he refuses to do so. It is proper to speak sternly to such a patient to make him eat. However, a patient should not be restrained physically in order to provide him with nutrition. This is especially so when the patient feels that food is not good for him, finds it difficult to eat, and feels that the food is causing him discomfort. The decision to disregard a patient's wishes must be taken only after very serious consideration. Disregarding a patient's wishes so that he is put under stress is in itself harmful to the patient. The physician must be absolutely certain that the decision to disregard the patient's wishes is clearly for the patient's benefit. He should not do so without taking care to consult with members of the family and with colleagues, because the responsibility he assumes unto himself is great indeed.

The halachah, as interpreted by our sages, gave special consideration to the critically ill even in monetary matters, permitting a person who is critically ill to make binding commitments even without the normal procedure of due process of law, so as not to stress or frustrate him, as would be the case if we were to insist on full attention to all the legal technicalities. I would like to reiterate that distinguishing between short-duration and long-duration survival is a very sensitive area, for as I have already stated, if the procedure ensuring short-duration survival requires that the patient be subjected to significant pain and discomfort, then it should not be done. What is called short duration, what is called intractable pain, is often a subjective analysis.

For this reason, it is necessary to consult with the members of the family and the physicians to reach a rational decision. If the patient is sentient, surely the patient's opinion, in cases where there is doubt as to what is appropriate, must be given full authority. In the case of a pediatric patient, the opinion of those family members who have the major obligation to care for the child should be given the highest consideration in making such decisions.

4. You asked me to clarify further my reference to the death of Rebbe and the action of his maidservant as it affects the decision to pray for the death of a patient who is suffering pain, and for whom there is no hope of ameliorating his condition. The analogy I drew from that incident is, indeed, fully valid. However, it must be understood that the conclusion that prayers for his welfare are not efficacious, as evidenced in the case of Rebbe, where the students unsuccessfully prayed for his well-being and merely succeeded in keeping him in his anguished state, does not apply to our prayers. The great sages whose prayers were accepted by our merciful Hashem could understand that further prayer is futile. We [for our part] cannot be so confident that our prayers will normally be answered, and so we cannot conclude that in this case prayer would not be efficacious. We must therefore assume that if one is as certain as the maidservant in Rebbe's case that further prayer would be futile, it would be justified to pray for Hashem above to take the patient's life.

I emphasize most strongly that we are discussing praying or not praying for a patient to recover. Under no circumstances is it permitted to do anything to shorten the life of a patient, even with merciful intent. To do so would be to commit an act of murder, which is a capital crime punishable by death.

5. This concerns undertaking some danger or risk in order to obtain a cure. Who makes such a decision? Does it depend solely upon the wishes of the patient? The second part of this question concerns a patient who refuses surgery that is necessary to save his life because it will leave him severely handicapped, as, for example, in the case of an amputation.

First of all, let me emphasize that it is difficult to lay down general rules. Every case is unique and should be evaluated as such. The Talmud in Avodah Zarah 27b declares that in order to attempt to achieve a cure, it is proper to risk the life of a patient who will die shortly if not helped, even if the cure involves great danger. Is this ruling a requirement or a permission? That is, may a patient risk his life in order to search for a cure, or must he do so, since he is risking a life that is now of short duration in the hope of achieving a normal life span?

I have already written in a responsum in Yoreh De'ah III:36 that if the risk/benefit ratio is 1:1, i.e., there is a 50 percent likelihood of mortality and a 50 percent chance of a long-term cure, then the Talmud's ruling should be interpreted as permissive. If, however, the doctor is convinced that a cure can be achieved with a higher degree of probability, it is obligatory to undertake the risk in order to obtain long life. I would like to emphasize that when dealing with major surgery involving the internal organs, danger always lurks, and therefore only a physician whose expertise is recognized by other members of his profession should be entrusted with such surgery. Only in an emergency situation, where failure to act will lead to the death of the patient, should a regular, licensed surgeon be used, since we assume that a surgeon who undertakes to do an operation knows himself to be capable of doing it and has been well trained. In such cases, it is the surgeon's certainty that counts. The surgeon's confidence that he can succeed is what permits the risk to be undertaken. If the surgeon is quite doubtful, however, and is not a recognized expert among his colleagues, it would be better not to do anything. Patient autonomy is significant in a case where there is great risk and physicians are hesitant as to whether a specific treatment modality should or should not be attempted. But when the patient realizes that in the absence of treatment he will surely die, and is desirous of taking that chance, it would be best to accede to the patient's wishes. The possible adverse side effects of the medication, or the danger of the surgery, must be weighed against the psychic trauma to a patient who may interpret the lack of action for his benefit as evidence of the total hopelessness of his situation, or of lack of support for him among family or medical professionals. With treatments that have a potential for adverse affects or for serious morbidity or even mortality, we are dealing with a risk/benefit evaluation. If the risk is indeed the high as people say, the patient has one chance in a thousand or even one chance in a million, but [if they say,] "what do you have to lose?", the halachah would not approve of undertaking such a risk. In all such circumstances, decisions are difficult to make, and hence it is critically important to consult with [the surgeon's] peers and others who have an understanding of these matters.

Surely when a patient decides he does not want to undertake the risk, and would rather take his chances without running the risk of imminent death, the patient's decision should be honored. I would like to add that if the patient decides he does want to undertake surgery that has a limited chance of success, it is permissible to raise funds for his surgical care by asking people to contribute to a charitable fund for this purpose. It is not necessary to advise them that the surgery may be futile because of a significant risk, so long as the patient is convinced that it will be for his benefit. In the case of an incompetent patient or a child, it is proper to ask parents or other close relatives to make such decisions. The family's role here is based on the assumption that the patient would normally rely on the opinion of close relatives, and hence, by doing so now, even though he is incompetent, we are following his presumed wishes. In the absence of close relatives, of course, a Beis Din should make the decision. [If it is known that the relatives are not "friendly guardians" due to family animosities, then it is preferable for the Beis Din to make all such decisions.]

If a patient requires surgery to save his life, but refuses because the surgery will leave him maimed, as in the case of an amputation, it is quite proper to coerce the patient, even if physical restraint is necessary. However, it is not possible to say that one is required to do so when the patient who is resisting the surgery is an adult. Indeed, the extent to which coercion should be used is doubtful; I have already expressed this concern.

It is more logical, however, to assume that there is an absolute halachic obligation for every patient to seek the best medical or surgical treatment even if it means undergoing a serious surgery. With full cognizance that every invasive treatment involves great dangers, the expertise of a well-trained surgeon should provide the confidence needed to undertake the recommended surgery.

In this age of specialization, it is, of course, comforting to have a surgeon who specializes in the particular type of surgery involved. However, one may trust any well-trained surgeon who is willing to undertake the surgery because he has the competence to do so. Additional insights into the great halachic issues concerning the care of the critically ill may be found in responsum no. 75.