by Rabbi Yair Hoffman for the Sefas Tamim Foundation

The mother had not pre-registered, and the standard consent forms were not signed because she was already in full-fledged labor.  She was immediately wheeled to teh labor and delivery room.  The fetal heart monitor was placed on the mother to ensure a normal heart beat.  When the heartbeat goes below 120 for a while – that means fetal distress.

The obstetrician was experienced but anesthesiologist was in his first year of residency. It was in the middle of the labor and delivery when he heard the obstetrician call out, “Cord prolapse!” The umbilical cord was compressed, depriving the baby of oxygen.  The team had six minutes, and the mother needed an emergency C-section.

The anesthesiologist told the mother at the operating table, “We have to put you to sleep,” The mother cried out, “No!” Thinking that she wasn’t serious, he started to apply the black oxygen mask – a preliminary step before injecting the sodium pentothal.

The mother responded, “No! No! I don’t want to go to sleep!” The resident delayed – not knowing what to do.

The obstetrician roared at him, “Put her to sleep! WHAT ARE YOU WAITING FOR?!”

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The attending anesthesiologist, who had far more experience, walked in and reached for the sodium pentothal. He then instructed the resident to put the oxygen mask on the patient. The resident anesthesiologist responded that she had refused consent and was therefore reluctant to place the oxygen mask on her.

All doctors sign a certification that they will follow hospital protocols and not perform procedures without consent. This was thE situation.

What should the resident anesthesiologist have done? As a hospital doctor, he certified that he would follow hospital procedures which include not performing procedures without patient consent. Is it, therefore, a violation of Midvar Sheker Tirchak to put the patient to sleep when the client has clearly not consented?

Halachically, generally speaking, we do not force a medical procedure against the will of a sick person unless we are dealing with the provision of necessary oxygen or nutrition. This is the ruling of Rav Shlomo Zalman Auerbach.  We are, however, obligated to make every effort to convince the person to agree to the treatment. Rav Yisroel Dovid Harfenes Shlita, one of the leading Poskim in the United States, ruled, in a conversation with this author, that the aforementioned case  is Pikuach Nefesh and we ignore all else when it comes to Pikuach Nefesh. Rav Chaim Kanievsky ZT”L ruled that when it involves very serious matters, one may even at the outset agree to things which one may not necessarily honor later.

The concept of “no consent” is not such a clear matter when the competence of the patient may be in question.

A similar case came up to this author as a member of the Board of Ethics of a Long Island hospital.  The patient had refused consent for a blood transfusion because of religious reasons.  The author had successfully convinced many of the board members to ignore the patient’s desire, but the hospital itself overruled the board of ethics and deferred to the lawyers.  Here, in the aforementioned case, however, one lawyer explained that the risks to the hospital in a case where a baby is born with mental incapacity is far greater than the award generally given for wrongfully placing the mother to sleep against her consent.

In this case, however, there is no midvar sheker tirchak because of pikuach nefesh and there is no risk to the hospital because an award in the case of a lawsuit is so much less.

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