High-Risk Medical Procedures – Part Two by Rabbi Chaim Jachter


 Last week we began to explore the issue of whether a gravely ill individual who is expected to live only a very brief while is permitted to undergo a very risky medical procedure in an attempt to restore his health.  We noted that the Gemara articulates a principle that “LeChayei Shaah Lo Chaishinan,” that we are permitted to risk a small amount of life in the hope of restoring one’s health.  Thus, even though the patient may die immediately from the medical intervention, he is permitted to risk Chayei Shaah (the brief amount of time that he is expected to live without medical intervention) in order to hopefully restore his health.

This week we shall begin to explore some of the parameters of this issue.  We shall review the debate regarding how much of a risk to Chayei Shaah one is permitted to assume and what the precise definition of Chayei Shaaah is.

How Much Risk?

The Gemara does not explicitly state how much risk to Chayei Shaah we are permitted to assume.  This issue, however, is debated by nineteenth and twentieth century Poskim.  The Mishnat Chachamim (cited in Teshuvot Achiezer 2:16:6) asserts that one is permitted to risk Chayei Shaah only if the risk to Chayei Shaah is fifty percent or less (Safek HaShakul).  According to this view, one who is expected to live only for a short while is forbidden to engage in a medical procedure if there is a chance greater than fifty percent that the medical procedure might kill him immediately, even though there is a chance that the procedure might completely heal him.  The Chatam Sofer (Teshuvot Y.D.  76, cited in the Pitchei Teshuva Y.D.  155:1) seems to agree with this ruling.  Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer ad.  loc.), however, disagrees and permits a patient to assume an even greater risk than fifty percent in the hope to achieve a longer life.

Later twentieth century authorities debate how to resolve this issue.  Teshuvot Tzitz Eliezer (10:25:5:5) seems to agree with the Mishnat Chachamim.  On the other hand, Rav Moshe Feinstein (Teshuvot Igrot Moshe Yoreh Deah 2:58, written in 1961) rules that one may risk Chayei Shaah even if there is only a Safeik Rachok (remote or slim chance) that the procedure will effect a cure, and it is more likely than not that the procedure will kill the patient immediately.  Rav Moshe writes that Rav Yosef Eliyahu Henkin agreed with this ruling (from 1936-1972, the Lower East Side of Manhattan was blessed with the presence of two outstanding Poskim, Rav Moshe and Rav Henkin; occasionally we find that regarding very serious and new issues Rav Moshe reports that he consulted with Rav Henkin).  However, writing in 1972, we find that Rav Moshe (Teshuvot Igrot Moshe Y.D.  3:36) is much more inclined to the opinion of the Mishnat Chachamim.  He concludes that we cannot protest if one wishes to rely upon the ruling of Rav Chaim Ozer and assume a very great risk to Chayei Shaah.

Proofs to Each Opinion

Rav Chaim Ozer writes that the Gemara’s statement that “LeChayei Shaah Lo Chaishinan” appears to be absolute with no reservations.  On the other hand, Rav Moshe (in the later responsum) points out that the concern of the Gemara (as discussed last week) is that a pagan doctor would immediately kill his Jewish patient.  Rav Moshe reasons that it is logical to assume that this concern only rises to the level of a Safeik Hashakul that the pagan doctor would harm his Jewish patient (see the Igrot Moshe for Rav Moshe’s understanding of Rashi s.v.  Safeik Chai).  Thus, Rav Moshe argues, the Gemara sanctions assuming only a Safek Hashakul risk to Chayei Shaah.

Rav Moshe also draws a proof from the story in Tanach (Melachim II 7:3-8) that serves as the source for permitting us to risk Chayei Shaah (as discussed last week).  In that story, the starving lepers were willing to enter the enemy camp and ask for food despite the risk that the enemy would kill them immediately.  Rav Moshe argues that the lepers were not assuming a greater than fifty percent risk to their Chayei Shaah, since it would appear to be more in the interest of the Arameans to take the lepers as slaves instead of simply killing them.  After all, the lepers were not combatants that posed a threat to the Arameans and thus there was no need to kill them.

On the other hand, one could argue that lepers would not be desirable slaves.  Accordingly, the only chance the lepers thought they had was for the Arameans to pity them since they were non-combatants and feed them.  As Rav Bleich notes, it seems that the chances for mercy were far less than fifty percent.

The conceptual basis for this disagreement seems to be as follows.  The more liberal approach would argue that the Halachic standard is essentially what most prudent people would choose.  They would argue that prudent people would view it as reasonable to place Chayei Shaah at great risk for a chance at achieving a cure for one’s ailment.

The more conservative approach could adopt one of two approaches.  These authorities might argue that prudent people would not view a very great risk to Chayei Shaah as reasonable.  Alternatively, they might argue that although prudent people regard such a risk as prudent, the Halacha places a limit on the degree of risk we are permitted to assume.  Recall from last week that we cited Tosafot who explain that we sanction the risk to Chayei Shaah only because it is done LeTovato, in the patient’s best interest.  One might argue that the Halacha believes that an enormous risk to the patient’s Chayei Shaah is not in his interest and therefore we disregard “the prudent person standard” in such a situation.

Defining Chayei Shaah

The Gemara does not precisely define Chayei Shaah.  Rashi (s.v.  Chayei Shaah) explains that the Gemara is speaking about one who is expected to live for only a day or two.  This statement does not appear to establish a formal standard for the category of Chayei Shaah, as Rashi seems to deliberately use an imprecise example – a day or two.  Indeed, we do not find a precise definition for the term Chayei Shaah in the writings of the Rishonim and early Acharonim.  In fact, Rav Shlomo Eger (Gilyon Maharsha 155:1) permitted a very risky medical procedure on a patient who was expected to live “Zeman Mah,” only a short while, even though it seems that he was expected to live longer than a day or two.

Accordingly, we should not find it surprising that Rav Chaim Ozer permits a very risky surgery for someone who was expected to live for six months.  Rav Chaim Ozer writes “the logic is obvious” that there is no conceptual distinction between a day or two as opposed to six months.  Indeed, as we explained earlier, the basis for permitting a risk is that reasonable people regard such action as prudent and thus it is an appropriate manner for us to guard the body that Hashem has given us.  Therefore, since most people would regard risking six months of life in the hope of achieving a cure to be as reasonable as risking a day or two of life to achieve a cure, there indeed is no conceptual difference between risking a day or two as opposed to six months.

Rav Chaim Ozer does not set six months as the upper limit on the time that he believes is permissible to risk.  This simply was the situation of the case regarding which he was asked to adjudicate.  Indeed, Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D.  3:36) writes that one may undergo very risky surgery in the hope of achieving a cure, even if the person is expected to live up to a year.  Rav Avraham Yitzchak HaKohen Kook (Teshuvot Mishpat Kohen 144:3) agrees with this standard.  Rav Moshe writes, however, that this ruling does not apply if the patient is expected to live more than a year.

Rav J.  David Bleich (Tradition Spring 2003) raises the possibility that the standard of one year is not ironclad and might depend on the circumstances.  He gives an example of someone who is afflicted with a slowly developing lethal form of leukemia, and doctors expect that he will live for thirteen months unless he receives a bone marrow transplant.  The bone marrow transplant does involve a significant risk of death from tissue incompatibility or infection.

Rav Bleich notes that in such a case it seems imprudent to wait a month for the patient’s life expectancy to dip below a year in order to permit him to assume the risk of the bone marrow transplant.  This is because the chance of the surgery’s success diminishes as the leukemia has developed further and the patient’s condition has deteriorated further.  Rav Bleich cites Tiferet Yisrael’s ruling that we discussed last week permitting smallpox inoculation (despite a one in a thousand chance of contracting smallpox from the inoculation) as a precedent to permit a risky medical procedure on a patient who is expected to live longer than a year.

It appears to me that Rav Moshe would not necessarily forbid the bone marrow transplant (or the smallpox inoculation) in the scenario described by Rav Bleich.  Rav Moshe speaks of a very risky medical procedure that would be performed only if the person had a very short life expectancy.  The risks involved in a bone marrow transplant do not seem at all to be similar to the risks involved in the procedure addressed by Rav Moshe.  One could argue that the lower the risk, the longer the amount of life one is permitted to risk.  According to this approach, even Rav Moshe would permit the smallpox inoculation at a time when it involved a one in thousand risk of contracting the disease.

One could argue that it is difficult to establish objective criteria for precisely how much risk of how much life is considered acceptable according to the Halacha.  One approach could be, as we have presented earlier, that the Halachic standard follows the opinion of most prudent people.  Most reasonable people may deem a certain amount of risk to a certain amount of life to be either prudent or imprudent, and this is the standard that we follow.  Obviously, consultation with top tier doctors and rabbis is necessary for one who (Rachama LeTzlan) finds himself in such a situation in order to properly assess the wisdom of any high-risk surgery.

Next week we shall (IY”H) continue our discussion of high-risk medical procedures by further exploring the parameters of the permissibility of engaging in dangerous medical procedures in the hope of effecting a cure.

High-Risk Medical Procedures – Part Three By Rabbi Chaim Jachter

High-Risk Medical Procedures – Part One by Rabbi Chaim Jachter