Rabbi Jachter's Halacha Files
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Parshat Vayetzei          9 Kislev 5766             December 10, 2005             Vol.15 No.12


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<<Part 2<<

<<Part 3<<

High-Risk Medical Procedures - Part Four
by Rabbi Chaim Jachter

This week we shall conclude our presentation of Halachic perspectives on high-risk medical procedures. We shall discuss whether it is permissible to engage in a very dangerous procedure in order to extend life briefly and the role of the Rav in the decision making process regarding a very risky medical procedure.

Very Risky Surgery to Extend Life Briefly
Rav Moshe (ad. loc.) writes that it is forbidden to undergo very risky surgery if the doctors do not believe that there is a chance that the surgery will restore the patient’s health and achieve longevity. Interestingly, Rav Moshe forbids such a surgery even if the doctors believe that there is a possibility to restore a number of years to the patient’s life. In other words, Rav Moshe believes that we are permitted to risk Chayei Shaah only in the hope of achieving a normal lifespan, but not merely to achieve a longer Chayei Shaah.
Interestingly, Rav Moshe does not cite a source for this ruling other than the responsum (that we cited last week) of Rav Chaim Ozer Grodzinsky, which, Rav Moshe notes, permits risky surgery in a case where there is a chance that the patient will “live.” Rav Moshe understands the term “live” to refer to living a normal lifespan.
It should be noted that although many Poskim base their decisions to a great extent on precedent from the great Poskim of earlier generations, Rav Moshe tends not to do this. Instead, Rav Moshe almost always resolves an issue based on an analysis of an issue from the Gemara, Rishonim, and the Shulchan Aruch and its commentaries. Thus, this responsum is unusual for Rav Moshe and demonstrates the great respect Rav Moshe had for Rav Chaim Ozer, who was considered by many to be the leading Ashkenazic Halachic authority of the early twentieth century.
Rav Bleich, however, challenges Rav Moshe’s assertion. He notes that the Ramban (in his work Torat HaAdam, 2:38 in Rav Chavel’s Kitvei Ramban) presents the Gemara in Avoda Zarah 27b as teaching that we may risk Chayei Shaah for “Chayei Tuva”- more life. Rav Bleich explains this to mean that we may risk Chayei Shaah for even more Chayei Shaah. Thus, Rav Bleich understands the Ramban to teach that one may risk a very brief Chayei Shaah for a lengthier Chayei Shaah.
Rav Bleich offers a tragically common Nafka Minah (practical ramification) of his dispute with Rav Moshe. His example is someone with terminal cancer (Rachamana Letzlan) who has developed an intestinal obstruction. Without surgery, the patient is expected to live no more than three days. If, however, the blockage is removed he could be expected to live for thirty days. Nonetheless, the surgery to remove the blockage involves a thirty three and one third percent chance of death during the course of the surgery or shortly thereafter. Rav Moshe might not sanction this procedure, while Rav Bleich might rule that it is permissible to perform or undergo such surgery.
We should note, however, that the Jastrow dictionary translates the Aramaic word “Tuva” (which appears very often in the Gemara) as “much, many, more.” Rav Bleich understands the Ramban’s use of the word “Tuva” in this context to mean “more” – more life. However, Dr. Avraham Steinberg (Encyclopedia Refu’it 5:3) understands the Ramban’s use of the word “Tuva” in this context to refer to “much life” i.e. normal life expectancy. This appears to be the way that Rav Moshe would understand the Ramban.
Normally, the opposite of Chayei Shaah is Chayei Olam, eternal life (see, for example, Shabbat 10a and Shabbat 33b). However, the Gemara or Ramban cannot use the term Chayei Olam in our context as an antonym for Chayei Shaah since even when one’s health is restored, one’s body does not live Chayei Olam, forever. Thus, the Ramban had to use the term Tuva, despite its somewhat imprecise connotations that leave room for disagreement.
Rav Bleich writes, however, that the Ramban could have used the term Chayei Kiyum- which Rav Bleich understands to refer to lasting life- had he meant that the patient would have his normal lifespan restored. Indeed, in the Yekum Purkan prayer recited by Ashkenazim before Mussaf on Shabbat, we ask for “Zarah Chayah VeKayama”, viable children who will live a normal lifespan. In the context of Hilchot Chalitza, the term “Zerah Shel Kayama” refers to children who outlive their father (see for example Rama, Even HaEzer 157:4). Indeed, in the context of Hilchot Shabbat the term Shel Kayama refers to the normal amount of time something usually lasts (see Rav Dovid Ribiat, The 39 Melochos, 1: pp.132-134 in the Hebrew section). Thus, the fact that the Ramban chooses the term Chayei Tuva instead of Chayei Kiyum seems to prove that the Ramban even sanctions risky surgery merely to extend Chayei Shaah.
Rav Moshe might respond that the Ramban could not have used the term Chayei Kiyum, as life (in this world) is almost by definition unstable and this term would be entirely inapt (note that the Gemara, Avoda Zarah 27b, does not use an opposite term of Chayei Shaah, probably due to the difficulty in finding an appropriate antonym).
It is possible to suggest a compromise between Rav Moshe and Rav Bleich. Perhaps it is forbidden to engage in very risky surgery in an attempt to merely extend Chayei Shaah. On the other hand, it might be permissible to engage in a moderately risky surgery in order to achieve a longer Chayei Shaah. The resolution of this question would again appear to depend on what prudent individuals would regard as a prudent risk. Of course, this is difficult to gauge and must be done in consultation with top rank medical and rabbinic guidance.

The Role of the Rav
Finally, we will explore the role of a Poseik in the making of these very delicate and difficult decisions regarding high-risk medical procedures. Teshuvot Shevut Yaakov (that we cited earlier in this series) writes that this decision should be made “in consultation with the top doctors in the area, and one should decide based on the majority medical opinion and with the consent of the local Rav.” Rav Chaim Ozer Grodzinsky (in aforementioned Teshuva) also cites from the Mishnat Chachamim that the decision should be made by rabbinic authority together with consultation with top medical personnel.
One could ask, however, why Rabbanim should have a role in the decision- making process if they lack the necessary medical knowledge to make such a decision. One approach could be that perhaps Rabbanim should be involved in matters that do not involve purely Halachic issues. Indeed, Rav Chaim Ozer was renowned for not confining his activities only to purely Halachic matters such as Kashrut and Mikveh in his role as the spiritual leader of Vilna’s Jews. He played a major role in all matter regarding Jews in Vilna – a point emphasized by Rav Yosef Dov Soloveitchik in his celebrated eulogy for Rav Chaim Ozer. In fact, in 1993 I met an elderly, non-observant gentleman who was a leader of a non-observant youth group in pre-war Vilna, who recounted to me that he met regularly with Rav Chaim Ozer about communal concerns that were not of a Halachic nature. Incidentally, this gentleman recalled Rav Chaim Ozer with fondness and said he was a “great guy” who had a good relationship with everybody, whether they were religious or not.
Rav Bleich offers two other suggestions to explain the role of the Rav in this matter. First, he notes that although doctors are potentially qualified to offer their opinion regarding the risks and prospects of the surgery as well as the medical status of the patient, the decision whether or not to conduct the surgery fundamentally is an ethical one, not a medical one. In fact, one might add that in some hospitals such decisions might be made by a staff medical ethicist rather than the patient’s physician. Thus, the role of the Rav would be to render an ethical or Halachic decision and not a medical one.
Moreover, since the decision (as we have emphasized in the previous issues) fundamentally is what is the prudent way of guarding the body that Hashem has bestowed upon us, the decision regarding whether to undergo hazardous surgery is a religious decision that should be rendered by a Poseik who has been given all the relevant medical information from the finest available medical personnel.
Rav Bleich offers another reason based on a ruling of Rav Chaim Pelaggi (Chikekei Lev 1:Y.D. 50), a major Sephardic Halachic authority of the nineteenth century. Rav Pelaggi rules that even though the Halacha permits praying for the death of someone who is very ill and suffering terribly (see Ran to Nedarim 40a based on Ketubot 104a), the decision to permit such prayer may be made only by someone who is an entirely disinterested party. Such a profoundly delicate decision must be made by someone who can make an objective decision and not be biased by the myriad of possible issues involved.
Rav Bleich suggests that the same concern might apply regarding the issue of sanctioning a hazardous medical procedure. He argues that physicians might be too aggressive in their zeal to heal their patient or advance the field of medicine to act in the best interest of the patient. Recall that Tosafot to Avoda Zarah 27b explain that we are willing to risk Chayei Shaah only because it is in the best interest of the patient. In such a delicate situation, the Poseik might be the appropriate individual to determine what is in the best interest of the patient.
An example of this phenomenon appears in Teshuvot Tzitz Eliezer (10:25:5:5) regarding heart transplant recipients at the early stages of the performance of such procedures. Among his many objections to heart transplants, Rav Waldenberg thought it wrong for the recipients who would otherwise be able to live for a number of years (albeit with some pain) to undergo this very hazardous procedure for which two thirds of the patients die shortly after the surgery. Rav Waldenberg objected to taking such a great risk to what may constitute even more than mere Chayei Shaah. In this case, the zeal of the doctors to advance the field of heart transplants and the patients’ desperation to lengthen their years seems to have led them to make imprudent decisions. Rav Waldenberg evaluated the situation in an unbiased manner and reached the conclusion that these procedures were not serving the best interest of the patients.
On the other hand, both the Rav and the physicians must realize their respective limitations and roles. The physician should not try to play the role of a Poseik (even if the physician is a Torah scholar) and the Poseik should not try to play the role of a doctor (even if he has extensive medical knowledge).
One may suggest yet another reason for a Poseik’s involvement in the decision- making process. The Rav should ensure that the finest and most experienced medical personnel assess the patient and his situation as well as conduct the hazardous medical procedure. Indeed, Chazal (Sanhedrin 32b) teach that one should seek the finest Beit Din to adjudicate a monetary dispute (monetary disputes are usually quite intricate and it is very challenging to resolve them in an appropriate manner). I heard Rav Yosef Dov Soloveitchik comment that the same applies to other areas of life, such as choosing the institution that will educate his child. Similarly, one should choose only the finest available medical care especially regarding a hazardous medical procedure, where the finest staff, experience, and equipment can often mean the difference between life and death. The Rav should do his best to insure that these are made available to the patient.
Moreover, the Poseik also serves to remind all involved that although one should act prudently and seek the finest care, at the end of the proverbial day, it is the Ribbono Shel Olam who will decide whether the surgery will be successful. Thus, while every effort should be made to make the best decision, Tefillah on the part of the patient, his family, and even the physicians are an essential (if not the most important) component of achieving success in a very difficult situation.
Finally, a Poseik’s involvement will help a family, physician, and institution cope with disaster in case the medical procedure fails and results in the death of the patient (Rachamana Letzlan). The fact that a reputable Poseik was consulted and sanctioned the procedure provides everyone involved the security of knowing that the procedure was conducted in harmony with Halacha and that it was the appropriate action to take. Otherwise, those involved might find it difficult to cope with the guilt associated with the failure of a high-risk procedure.

Conclusion
The decision whether to undergo a hazardous medical procedure can be one of the most difficult an individual or a family will even have to make. Although we have presented in the past four weeks the parameters of the Halachic issues involved, there is no substitute for proper consultation with the finest available medical personnel and one’s Rav who will guide one through such a situation. May Hashem grant good health to all of His people.

 

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