Survey of recent halakhic periodical literature: Hazardous medical procedures

Tradition

Volumn 37, Issue 3, 2003, Pages 76-100

  Bleich, J David ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; DEATH AND EUTHANASIA; DECISION MAKING; DRUG TOXICITY; ETHICS; EUTHANASIA; HEALTH CARE AND PUBLIC HEALTH; HIGH RISK BEHAVIOR; HUMAN; LIFE EXPECTANCY; LONG TERM CARE; LONGEVITY; MEDICAL TECHNOLOGY; MORTALITY; PAIN; PATIENT CARE; RELIGION; RELIGIOUS APPROACH; RISK ASSESSMENT; SOCIOECONOMICS; TERMINAL CARE; TERMINALLY ILL PATIENT; TREATMENT REFUSAL; VACCINATION;

DEATH AND EUTHANASIA; HEALTH CARE AND PUBLIC HEALTH; RELIGIOUS APPROACH;

BIOMEDICAL TECHNOLOGY; DECISION MAKING; DRUG TOXICITY; EUTHANASIA; HUMANS; JUDAISM; LIFE EXPECTANCY; LIFE SUPPORT CARE; LONGEVITY; PAIN; PATIENT CARE; RISK ASSESSMENT; RISK-TAKING; TERMINAL CARE; TERMINALLY ILL; TREATMENT REFUSAL; VACCINATION; VALUE OF LIFE;

EID: 14744290839     PISSN: 00410608     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (22)

1. It is on the basis of this consideration that R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 49, peremptorily dismisses the contention that cigarette smoking constitutes a violation of Jewish law. In that brief responsum, but seven and a half lines in length, Iggerot Mòsheh does little more than cite the various talmudic references to shomer peta'im Ha-Shem. To be sure, in earlier periods in Jewish history, the Sages promulgated decrees against specific forms of activity that they regarded as hazardous. Tosafot, Beizah 6a, describe the prohibition against drinking uncovered water, a practice forbidden lest a snake had previously partaken of the water and had deposited poisonous venom therein, as the subject of a davar she-be-minyan, a formal rabbinic decree. The hazards of cigarette smoking are quite probably greater than those of drinking uncovered water. Had smoking been prevalent in days gone by and the hazards of tobacco been known, the Sages of the Talmud might well have deemed it wise to ban smoking. Thus Iggerot Mosheh's responsum reflects the unexceptionable observation that, in the absence of biblical grounds and in the absence of a rabbinic decree either in the past or in the present, it cannot be maintained that a popularly accepted practice constitutes a violation of Halakhah because of an element of attendant danger.
2. For a review of the controversy concerning smoking see this writer's " Smoking," Tradition, vol. 16, no. 4 (Summer, 1977), pp. 121-123.
3. For an application of this principle in another context see the letter of R. Joseph Shalom Eliashiv quoted in Am ha-Torah, vol. II, no. 3 (5742), p. 102.
4. Jewish teaching thus stands in stark contradiction to the Catholic view expressed by the seventeenth-century Spanish Cardinal, Juan de Lugo, in his De Justitia et Jure, Disp. 10, n. 30: "The duty of preserving one's life .. does not include the duty of using means that will prolong life so briefly that they may be considered morally as nothing." See this writer's, "The Obligation to Heal in the Jewish Tradition," Jewish Bioethics, ed. Fred Rosner and J. David Bleich, 2nd ed. (Hoboken, N.J., 2000 ), pp. 16-18.
5. As a practical matter, although it may not be difficult to establish the possibility of therapeutic efficacy it may be extremely difficult and even impossible to quantify the probability of success as more or less than fifty percent. For example, the four lepers described in II Kings had rational grounds to believe that feelings of pity might be evoked in the enemy but what basis might they have had for assuming that the chances of mercy were at least fifty percent? Cf., R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 36.
6. Cf., however, & Eliezer Waldenberg, Ziz Eli'ezer, IV, no. 12, sec. 1, s.v. velakhen, who somewhat tentatively forbids self -endangerment unless it is certain that, absent intervention, the patient will die.
7. See also Iggerot Mosheh, Yorch De'ah, II, no. 36, s.v. ve-hineh, who regards it as self-evident that it is forbidden to perform a hazardous medical procedure on behalf of a patient who would otherwise suffer chronic pain and remain bedridden for life.
8. Cf., however, Ziz Eli'ezer, 13, no. 87, who notes that, in a terminally-ill patient, extreme pain may serve to hasten death.
9. See also the comment of R. Shlomoh Zalman Auerbach cited by R. Joshua Neuwirth, Shmirat Shabbat ke-Hilkhatah, I, 2nd ed. (Jerusalem 5739), 32:56, note 150
10. as well as this writer's " Palliation of Pain," Tradition, vol. 36, no. 1 (Spring, 2002) p. 105.
11. See Shulhan Arukh, Hoshen Mishpat 291:13.
12. Cf., Iggerot Mosheh, Yorek De'ah, III, no. 36, who explains the discretionary nature of such decisions in terms of a notion of at least limited proprietorship of one's body. In this writer's opinion, the problem requiring resolution does not compel establishment of a notion of limited proprietorship.
13. See Shulhan Arukh, Hoshen Mishpat 291:14.
14. See also Ginat Veradim, Hoshen Mishpat, klal, no. 5
15. and R. Joshua Blau, Pithei Hoshen, II, 2:1, note 3.
16. Another reason for requiring rabbinic endorsement of a decision to institute hazardous therapy may be gleaned from comments made in an entirely different context by R. Chaim Pelaggi, Hikkekei Lev, I, Yoreh De'ah, no. 50.
17. Rashi, Avodah Zarah 27b, s.v. hayyei sha'ah, comments: ".. and perhaps he will live a day or two days." R. Abraham I. Kook, Mishpat Kohen, no. 144, sec. 3, categorizes that comment as contextually explanatory rather than as normatively definitive. Accordingly, Mishpat Kohen dismisses the position of his interlocutor who sought to define hayyei sha'ah as a period of no more than twenty-four hours.
18. Iggerot Mosheh, Hoshen Mishpat, II, no. 75, sec. 2, posits the same distinction for purposes of triage decisions.
19. See D. Mike Hardin, Jr., "Acute Appendicitis: Review and Update," American Family Physician, vol. 60, no. 7 (November 1, 1999), p. 2027.
20. See this writer's Bioetbical Dilemmas: A Jewish Perspective, I (Hoboken, N.J., 1998), 154- 156.
21. The analogy presented herein as well as the notion of maximization of lifequanta as a basis for decision- making were earlier formulated in this writer's " Baby Jane Doe and Baby Fae," Bioethical Dilemmas, I, 333-337.
22. Cf., however, Avraham Steinberg, Encyclopedia Halakhatit Refu'it, V (Jerusalem, 5756), 3, who understands Ramban as sanctioning the risk of hayyei sha'ah only for hayyei olam, i.e., normal longevity anticipation. In this writer's opinion Ramban abjured use of the phrase " hayyei olam" or of the phrase "hayyei kiyyum" and advisedly employed the phrase hayyei tuva in order to negate the notion that hayyei sha'ah may be risked only in anticipation of gaining a normal life span.