Survey of recent halakhic periodical literature

Tradition

Volumn 36, Issue 1, 2002, Pages 89-114

  Bleich, J David ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; DEATH AND EUTHANASIA; ETHICS; HEALTH CARE AND PUBLIC HEALTH; HUMAN; PAIN; PALLIATIVE THERAPY; RELIGION; RELIGIOUS APPROACH; RISK; SOCIOECONOMICS; TERMINAL CARE; TERMINALLY ILL PATIENT; THEOLOGY;

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

HUMANS; JUDAISM; PAIN; PALLIATIVE CARE; RISK; TERMINAL CARE; TERMINALLY ILL; THEOLOGY; VALUE OF LIFE;

EID: 23844541796     PISSN: 00410608     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (63)

1. cPhillips, "JCAHO Pain Management Standards Are Unveiled," Journal of the American Medical Association, vol. 284, no. 4 (July 26, 2000), p. 428
2. nd edition (Philadelphia, 1990), I, 182
3. See Phillips, "JCAHO Pain Management," p. 429
4. Torat ha-Adam, Kol Kitvei Ramban, ed. R. Bernard Chavel (Jerusalem, 5724), II, 48
5. See R. Ya'akov Yeshayah Blau, Pitbei Hoshen, V (Jerusalem, 5748) 12:1, note 3, who, without citing Teshuvot Radvaz, declares that alleviation of suffering is subsumed in the latter obligation
6. Causing pain or anguish to another is also prohibited according to the many authorities who regard the prohibition against causing pain to animals (za'ar ba'alei hayyim) as also forbidding the infliction of pain or anguish upon humans. For a survey of those sources, see R. Betzalel Stern, Be-Zel he-Hokhmah, IV, no. 125
7. and Pithei Hoshen, V, 2:1, note 6
8. Shulhan Arukh, Hoshen Mishpat 359:4, rules explicidy that, in a life-threatening situation, one may appropriate the property of another person in order to avert danger but only with intent to make restitution at some future time
9. That ruling is confirmed by Sema, Hoshen Mishpat 259:10
10. Bi'ur ha-Gra, Hoshen Mishpat 259:4
11. Shulhan Arukh ha-Rav, Hilkhot Gezeilah it-Geneivah, sec. 2
12. and Arukh ha-Shulhan, Hoshen Mishpat 359:3
13. and is also the opinion of Yam shel Shlomoh, Bava Kamma 6:27
14. and a host of later authorities. That position is based upon the analysis of Bava Kamma 60b by Tosafot, ad locum. Teshuvot ha-Rashba, IV, no. 17, however, apparendy maintains that in such circumstances, subsequent payment is not required. Rashi, Bava Kamma 60b, is conventionally understood as maintaining that theft is not permitted even for the purpose of preserving life while Me'iri, Bava Kamma 80a, is understood as asserting that, although nor-matively permitted, it is not an act of piety to appropriate the property of anodier person for such purpose. See, however, the discussion of Meiri's comments presented by Sedei Hemed, Ma'arekhet ha-Alef, sec. 16
15. Rashi's position is accepted by Teshuvot Binyan Zion, nos. 167-168
16. Sho'el u-Mesbiv, Mahadura Kamma, II, no. 174
17. and Dvar Yehoshu'a, II, no. 24
18. However, Teshuvot Maharam Shik, Yoreh De'ah, no. 347, asserts that even Rashi would concede that, as a matter of normative law, theft and subsequent restitution is permissible
19. Teshuvot Zekher Simhah, no. 235, maintains that, in fact, Rashi understands the discussion in Bava Kamma 60b in the same manner as Tosafot. Iggerot Mosheh, Yoreh De'ah, I, no. 214, employs emphatic language in dismissing the conventional understanding of Rashi
20. For a comprehensive discussion of this issue, see Dr. Abraham S. Abraham, Nishmat Avraham, II, Yoreh De'ah 157:1, note 4(1)
21. For a discussion of the rescuer's liability for appropriation of property see this writer's Contemporary Halakhic Problems, IV (New York, 1995), pp. 309-314. In addition to the sources cited in that discussion, mention should be made of the comments of Netivot ha-Mishpat 340:6. The situation addressed by Netivot is that of a person who borrowed arms for use against enemy soldiers only to have those arms seized by the aggressor. The issue, of course, is the borrower's liability to the bailor. Netivot cites the statement of the Gemara, Sanhedrin 34a, to the effect that if a bystander who is intervening in order to rescue a potential victim from a pursuer breaks utensils belonging to a third party he is absolved from financial liability. Netivot argues that the borrower sought to defend not only himself but other potential victims as well and hence should not be liable and adds a comment to the effect that his privilege should not be diminished because he sought to preserve himself as well. Contrary to the position of R. Moshe Feinstein, Iggerot Mosheh, II, no. 63, Netivot does not regard the rescuer's immunity as limited to liability for tort damages but also to other forms of liability such as liability arising from a bailment contract. Moreover, the Gemara declares that the pursuer is absolved from financial liability because "if you say [that he is liable] the result will be that no man will rescue his fellow man from a pursuer." That rationale does not seem to apply in situations in which the rescuer is himself among the endangered since no inducement is necessary to prompt a person to act when he is also among those whose lives are endangered
22. Nishmat Avraham, III, Hoshen Mishpat 426:1, addresses the question of whether a person who is impoverished at the time of his rescue is obligated to compensate the rescuer if he acquires funds at some later time. R. Shlomoh Zalman Auerbach is quoted as stating that, unlike the situation with regard to a person who accepts alms, a lien attaches to the beneficiary with the result that he remains liable. It should however be noted that Teshuvot Maharashdam, Yoreh De'ah, no. 204, rules that a person lacking assets at the time of rescue cannot be held liable subsequendy
23. See also sources cited by Pithei Hoshen, V, 12:5, note 11
24. Cf. also the ruling of Rema, Yoreh De'ah 252:12, regarding the liability of a captive for reimbursement of funds expended for his ransom
25. See also Yam shel Shlomoh, Bava Kamma, 6:15, regarding the liability of a captive whose life is in danger and the sources cited by Pithei Hoshen, V, 12:4, note 8, regarding the liability of an impoverished captive who subsequendy acquires funds and of a captive of means who has no access to his fortune. 10. Cf., the discussions of R. Shlomoh Zalman Auerbach, Minhat Shlomoh, I, no. 7
26. and Dr. Abraham S. Abraham, Nishmat Avraham, Orah Hayyim 334:1
27. For a discussion of this controversy, see this writer's Bioethical Dilemmas: A Jewish Perspective (Hoboken, NJ, 1998), pp. 90-94
28. This point was earlier noted by R. Abraham I. Kook, Mishpat Kohen, no. 144, sec. 17
29. Iggerot Mosheh's ruling with regard to the need for consent of family members for cadaveric organ donations is subject to question on extraneous grounds. A person need not accept pain that may be regarded as an expenditure of a sum greater than his entire fortune but it is far from clear that the vicarious grief and suffering of another party is to be taken into account, particularly when such anguish is misplaced. For example, an unobservant parent may regard Judaism as a cult and be exceedingly distressed at the sight of a son donning phylacteries. The parent's anguish may be so inordinate that he or she is willing to offer a deprogrammer a sum in excess of her or his net worth in order to convince the child not to perform the mizvah. It is certainly the case that the parent's anguish, genuine as it may be, does not relieve the child of his obligation with regard to the mizvah. The situation with regard to organ donations is entirely similar. Relatives have no proprietary interest in the corpse of the deceased. The obligation of pikuah uefesh that supercedes considerations of nivul ha-met devolve upon medical practitioners who have the requisite skills to perform the necessary acts of rescue. It is difficult to understand why the mis-founded emotional pain of the relatives of the deceased, who essentially have no standing or involvement in the matter, should serve to vitiate the obligation of medical practitioners
30. For an explanation of the dual names, see Daniel 1:7
31. Cf. Midrash Rabbah, Shir ha-Shirim 2:18: Said R. Hiyya bar Abba, "If a person will say to me 'Give your life in sanctification of the name of the Holy One, blessed be He,' I will give [my life] but only if they will slay me immediately; however, in a generation of [forced] apostasy, I could not bear [torture]."
32. The comments of Rabbenu Nissim, Nedarim 40a, sanctioning prayer for death in face of intractable pain are not relevant to this discussion for reasons discussed in this writer's Judaism and Healing (New York, 1981), pp. 142-143
33. See also, R. Shlomoh Zalman Auerbach, Halakhah u - Refu'ah, ed. R. Moshe Herschler, III (Jerusalem, 5743), p. 60
34. reprinted in Rabbi Auerbach's Minhat Shlomoh, I, no. 91, sec. 24
35. and R. Shmu'el Eliezer Stern, "Be-Inyan Tefillah al Holeh Mesukan," Stab Tefillah (Jerusalem, 5759), p. 622
36. cf., however, Tiferet Yisra'el, Yoma, Bo'az 8:3
37. and Iggerot Mosheh, Hoshcn Mishpat, II, no. 73, sec. 1
38. For further discussion of this notion as well as of the general question of withholding of treatment from a goses, see Bioethical Dilemmas: A Jewish Perspective, pp. 61-112
39. Porter Storey, "It's Over, Debbie," Journal of the American Medical Association, vol. 259, no. 14 (April 8, 1988), p. 2095
40. Brief of the American Medical Association et al., as amici curiae in support of petitioners at 6, Washington v. Glucksberg, 117 S. Ct. 2258 (1997) (No. 96-110)
41. Albert Einstein, "Overview of Cancer Pain Management," Pain Management and Care of the Terminal Patient, Judy Kornell, ed. (Washington: Washington State Medical Association, 1992), p. 4. Another study indicates that when treated by skilled practitioners the pain of 98% of patients in hospice care can be relieved
42. See American Medical Association Council on Scientific Affairs, "Good Care of the Dying Patient," Journal of the American Medical Association, vol. 275, no. 6 (February 14, 1996), p. 475
43. See also C.S. Cleeland et al., "Pain and its Treatment in Outpatients with Metastatic Cancer," New England Journal of Medicine, vol. 330, no. 9 (March 3, 1994), p. 592
44. See T.D. Walsh, "Opiates and Respiratory Function in Advanced Cancer," Recent Results in Cancer Research, XXXIX (1984), 1115-1117
45. E. Bruera et al., "Effects of Morphine on the Dyspnea of Terminal Cancer Patients," Journal of Pain and Symptom Management, vol. 5, no. 6 (December 1990), pp. 341-344 (December, 1990), p. 6
46. M. Angell, "The Quality of Mercy" (editorial) New England Journal of Medicine, vol. 306, no. 2 (January 14, 1982), pp. 98-99
47. See also R.R. Miller and H. Jick, "Clinical Effects of Meperidine in Hospitalized Medical Patients," Journal of Clinical Pharmacology, vol. 18, no. 4 (April 1978), pp. 180-189
48. and R. R. Miller, "Analgesics," Drug Effects in Hospitalized Patients, ed. R. Miller and D. J. Greenblatt (New York, 1976), pp. 133-164
49. Torat ha-Adam, Kol Kitvei Ramban, II, 43
50. See Walter B. Cannon, "'Voodoo' Death," American Anthropologist, New Series, vol. 44, no. 2 (April- June, 1942), pp 169-181
51. reprinted in Psychosomatic Medicine, vol. 19 (1957), p. 189
52. nd edition (Jerusalem, 5739) 32:56, note 150
53. See Keith D. Lillemoe, John L. Cameron, Howard S. Kaufman et al., "Chemical Splanchnicectomy in Patients with Unresectable Pancreatic Cancer: A Prospective Randomized Trial," Annals of Surgery, vol. 217, no. 5 (May, 1993), pp. 447-55
54. For a report of other studies see S. Staats, "The Pain - Mortality Link: Unraveling the Mysteries," Assessment and Treatment of Cancer, ed. R. Payne, KB. Patt and C.P. Hill (Seatde, 1998), pp. 145-156
55. and idem, "Pain, Depression and Survival: Progress in Pain Research and Management," American Family Physician, vol. 60, no. 1 (July, 1999), p. 42
56. For reference to authorities who would regard unintentional death as a shogeg rather than a davar she-eino mitkaven, see this writer's Contemporary Halakhic Problems, III (New York, 1989), pp. 7f
57. See Iggerot Mosheh, Even ha-Ezer, IV, no. 31, s.v. u - mah she-nizkar and R. Yitzchak Zilberstein, Halakhah u - Refu'ah, ed. R. Moshe Hershler, II (Jerusalem, 5741), 193f.
58. reprinted in Emek Halakhah: Assia, ed. R. Mordecai Halperin (Jerusalem, 5746), pp. 136f. The question of the circumstances in which a physician is liable to the penalty of exile is addressed at length by the present writer in an as yet unpublished article
59. See the statement attributed to the late R. Shlomoh Zalman Auerbach cited by R. Avigdor Nebenzahl, Sefer Assi'a, IV (Jerusalem, 5743), pp. 260-262, and his own difficulty with that statement
60. Cf. also, Dr. Mordecai Halperin, Emek Halakhah: Assi'a (Jerusalem, 5746), p. 310
61. and idem, "Modern Perspectives on Halakhah and Medicine," Assi'a: Jewish Medical Ethics, vol. 1, no. 2 (May, 1989), p. 157
62. It has been argued that, on Shabbat, a person may perform a series of acts which will eventually lead to an unintended and unwanted effect which, if intended, would be forbidden. Since the person does not know which act will yield that effect each discrete act, it is argued, does not constitute a psik reisha. See this writer's "Use of Surveillance Systems on Shabbat," Tradition, vol. 35, no. 3 (Fall, 2001), p. 68. That situation, however, is readily distinguishable from homicide in that violation of Shabbat restrictions occurs only if the act is a melekhet mahashevet, i.e., the particular act is designed to produce a forbidden effect
63. Application of the President and Directors of Georgetown College, Inc., 331 F.2d 1000, 1010 (Washington, D.C., 1964)