(By: S.L. Zacharowicz, MD, MA) The national controversy over Motl Brody, z”l, is a harbinger of what may await us in the years to come in end-of-life care.

The legal and medical aspects of the family’s tragedy ended when Motl’s heart stopped beating shortly after chatzos on a recent Friday night, and the federal court battle over whether the hospital could disconnect a boy they declared brain dead from life support came to an end. However, the crucial conflict regarding who will prevail in such decisions is very much alive.

HISTORICAL PERSPECTIVE

The amazing technological advances of the l ast century have created new solutions to medical and behavioral disorders, but also have resulted in highly complex ethical and legal dilemmas. Whereas for centuries a dying patient might have had cessation of heart and lung function within seconds of “brain death,” modern technology such as ICU care and ventilators may keep hearts beating and lungs functioning well after a person’s major brain functions have ceased.

To better understand the broad picture, let us travel back in time. Until about half a century ago, a physician could sometimes diagnose, often comfort and occasionally cure his patients. He could offer empathy and some palliative measures, but little could be done to alter the course of most serious illnesses and disorders.
With the discovery of germs as the cause of many diseases and the advent of antibiotics such as penicillin, doctors could very often cure many patients of their infectious diseases.

Subsequently, in the middle of the 20th century, psychoactive medications began to be used, in many cases enabling patients otherwise doomed to a life in a sanitarium to live productive lives in the community. Since then, there has been a surge in medical knowledge and technology, with the total amount of medical knowledge doubling every five to seven years!

The last few decades have witnessed widespread use of machines such as CT and MRI scans, along with rapid advances in other diagnostic and therapeutic tools. Genetic studies now enable many people to know their genetic risks for various medical and psychiatric disorders, and such knowledge subsequently empowers them to seek a more targeted treatment approach. For example, Jewish women who carry the BRCA mutation which leads to a very high risk (over 80%) of developing certain female-specific cancers can take measures to greatly lower their risks, once they are equipped with this knowledge.

The financial aspects of medical and psychiatric care have grown in importance over the past few decades. More could be done to help diagnose and treat people, so more was done — and sometimes doctors leery of being sued ordered extra tests and procedures, a practice called “defensive” medicine, adding more to costs. Cost containment on patient care became a top priority, but this was shrewdly presented to medical students and patients alike as benign “cost benefit analysis.”

Today, medical students and physicians are routinely taught to consider the costs of certain procedures and tests. Since end-of-life care accounts for a large percentage of the total U.S. healthcare budget, it is obvious that this is an area targeted by cost-conscious bureaucrats. Often, those professionals who order “too many” expensive tests or advocate “too vigorously” for their patients’ treatment find themselves abruptly removed from an HMO panel, and hence unable to get reimbursed for seeing patients from this HMO. 

Such draconian measures often have a chilling effect on physicians and lead to some doctors being psychologically co-opted, i.e. to think first of the financial interest of the HMO, and hence their own financial interest, rather than keeping the patient’s well-being or obeying their religious wishes as their prime objective.

SECULAR MEDICAL ETHICS: A SECULAR “RELIGION”?

Secular ethics has grown as a field, in tandem with the growth of technology and consequent concerns about costs. Secular ethics does not rely on biblical or religious sources, but on relatively modern, secular philosophies of mankind, such as the doctrine of personal autonomy — which has its roots in the U.S. Constitution. Under this notion, supposedly a patient of sound mind and body has the right to refuse even life-saving care. This view conceptualizes a person as the owner of his body and mind. No one is entitled to treat or even touch that person’s body without that person’s consent.

In contrast, in traditional Jewish thought, a person is not viewed as being the owner of his body. When it comes to medical issues such as end-of-life care, a believing Jewish person has a totally different mandate: he is not free to do with his body as he pleases.

Not surprisingly, many professional ethicists under the employ of hospitals often take the position most financially beneficial to the hospital center. However, they frame that position in philosophical, psychological and even “religious” terms which are appealing to the decision-makers — i.e., family members of a critically ill patient, for example.

In the past two decades, the concept of “futile care” has entered the lexicon of ethicists eager to please their employers, as well as those whose world outlook differs markedly from a traditional Jewish perspective.  This concept stems from the 19th-century secular philosophy called “utilitarianism,” which posits that in some cases one should sacrifice the few to benefit the many.

In the latest radical versions of futile care theory, a patient whose quality of life will not be much improved by modern medicine is not only expendable but a drain on limited resources, and the only “humane” decision is one that results in the shortening of that patient’s life via withdrawal of care — even if this violates personal autonomy, and the religious rights of the family.

While thousands of medical students and nursing students have been taught only a “quality of life” approach to end-of-life care, such a view is anathema to Orthodox Jewish thought as well as to traditional secular ethics.  In halachah, the overriding concern is the biblical prohibition against taking a person’s life, regardless of outside considerations, such as “cost benefit analysis,” the inconvenience or agony of family members, or the potential use of a patient’s organs — or life-maintaining equipment such as a respirator — to benefit others.

GOLUBCHUK AND BRODY CASES

The case of the late Samuel Golubchuk, z”l, which last year pitted the family of an awake but mute and disabled frum Jewish man against Canadian doctors who wished to end his life, is a classic example of what can happen when two different sets of ethics clash.

Regrettably, with the exception of Agudath Israel of America, the Golubchuk family and its supporters were unable to galvanize much public support from major Jewish organizations, despite the clear-cut nature of the case and its implications — indeed, it was called “the Terri Schiavo case” of Canada by none other than Terri Schiavo’s family, who wrote to the Golubchuk family to offer support.

The Golubchuk family fought a relatively lonely, and quite costly, battle for their father’s life.  Fortunately, we were able, b’chasdei Hashem, to convince the judge in the Golubchuk case to issue two injunctions, and Mr. Golubchuk died, apparently of natural causes, seven months after doctors tried to end his life.

In the more recent Brody case, there was clearly a clash between two very different views on the definition of death — secular and halachic — and who should decide when to terminate care.

On a more mundane level, professionals whose allegiances are co-opted by healthcare and other systems may not represent your interests — or that of your child — to the extent you deem appropriate, or halachically mandatory.

HOW TO PROTECT YOUR RIGHTS

What can be done to protect your religious rights? Here are some suggestions.
1. Make sure your physician is sensitive to your religious beliefs, and will advocate for you and your loved ones in your time of need. If your doctor will not respect your beliefs, switch to someone who will.

2. Talk to your Rav soon, before the enormous stress of dealing with a serious illness clouds your thinking and legions of healthcare personnel descend upon you insisting that “the only humane thing” to do is to “pull the plug.” (Be warned: even some yarmulka-wearing doctors may in their ignorance advocate this!)

3. Encourage your Rav to occasionally discuss important but uncomfortable topics like end-of-life care from the pulpit or to give shiurim on these topics for both men and women.

4. Prepare a halachic living will — a sample is available from Agudath Israel of America (212-797-9000) — and designate a health-care proxy to make decisions for you in the event that you are, chas v’shalom, incapacitated. Prepare a durable power of attorney whereby a loved one can access funds and make financial decisions when you cannot do so.

4. Go to shiurim and talks on medical halachah. Major metropolitan areas have these from time to time, and some shuls sponsor talks on such topics occasionally.

5. Attend seminars on end-of-life care and other topics of interest. (However, beware of who is sponsoring the seminar and what their agenda might be, especially if a corporate sponsor picks the speakers.) 

6. Realize that even frum doctors may have special knowledge in medicine, but they are not necessarily authorities in medical ethics in general or in medical halachah in particular. This is one of the most complex areas in halachah, and the stakes are literally life and death. Do not rely on the “psak” of a doctor!

7. Ask your doctor when he/she last attended a seminar on Jewish medical ethics. If he/she has not done so in more than a decade, he/she may be as “out of date” in this rapidly advancing halachic field as a doctor who has not attended medical lectures in a similar period of time might be, and maybe that should factor into your choice of a doctor.
Why? It is nearly impossible for such a doctor to rely solely on asking a Rav important she’eilos, since he/she will often be oblivious to the need to communicate halachically relevant nuances which may alter the final psak radically.  The Rav who relies on a doctor ignorant of halachah or the occasional doctor with an agenda that is clearly at odds with halachah may inadvertently be misled.
The issue of the reliability and veracity of the medical information presented to the posek is a growing problem in medical halachah, but suffice it to say that some doctors may inadvertently omit halachically crucial facts for various reasons.

8. Develop a relationship with a Rav who is qualified to render life-and-death decisions and will be there for you in your hour of need. Ideally, the Rav should speak directly with knowledgeable medical staff so as to minimize the chances that a layman may fail to communicate important medical facts to the posek.

9. Acquire and read sefarim, such as Rabbi Dr. Avraham S. Abraham’s Nishmat Avraham, available in English translation, but do not rely on such sefarim for a final psak, even if the situation seems clear-cut.  There are frequent developments in medical halachah; some sefarim become halachically out of date as new technology changes the situation.

10. Realize that laws vary from state to state. While New York and New Jersey may have built-in clauses in their law books which take into account religious exemptions to certain statutes such as the determination of death, that may not be the case in other jurisdictions.
In some areas of Europe, for example, assisted suicide may be legal, and in some countries doctors are given rights to make decisions on a patient’s well-being and life that they are not given here. In some areas of Canada doctors may claim the right to end a patient’s life if they deem the quality his life to be below their standard for quality of life. This knowledge may impact on your decision when choosing a doctor/hospital, since once the patient is in a hospital in a state or country that gives authority for making life-and-death decisions to the medical practitioner as opposed to the patient, the patient may be totally at their mercy, as Samuel Golubchuk z”l was at Grace Hospital — until Agudath Israel stepped in.

11. If you are confronted with a hospital system determined to act against a patient’s religious wishes, seek help from an organization such as Agudath Israel quickly.

The decision who shall live and who shall die — and when this shall occur — belongs to Hashem. Anyone who deliberately shortens a life by even a second is guilty of a grievous sin. By taking some of the steps outlined above, you can learn more about the field of medical halachah, and help ensure that your values are respected in the “brave new world” of healthcare — and that none of your loved ones meets an “untimely” death due to decisions made outside of a Torah hashkafah, chas v’shalom.

Neurologist Dr. Zacharowicz was the pro bono consultant for the Golubchuk family’s legal battle, about which he lectured at recent conferences on end-of-life care in Yerushalayim and N.Y. He also was a pro bono consultant to the legal team in the Brody case. Co-founder of an international Yarchei Kallah series on medical halachah, he is currently helping coordinate the 6th New York seminar on medical ethics, to be held February 26-March 1, at the Edmond Safra Synagogue in Manhattan. Dr. Zacharowicz continues to be involved in end-of-life medical halachah cases worldwide.

(Article Previously Printed in Hamodia USA)