By Rabbi Jonathan M. Brown, March 30, 1992
Centuries ago, Jewish authorities grappled with the question—"whose responsibility is it to heal the sick?" God’s or man’s? If, as many believed then, and some still believe today, an illness represents a visitation from God, why would man need to heal what God himself has caused; indeed, it would be chutzpadic to even consider human intervention. If God is the ‘maymeet um’ohayeh," the one who takes life, as well as the one who sustains life, how can human intervention ever be justified?
We read in Maimonides’ Mishneh Torah that "whosoever is able to save another and does not save him transgresses the commandment ‘Neither shalt thou stand idly by the blood of thy neighbor." This injunction applies to abroad range of circumstances, but clearly implicates a physician who fails to respond; he or she would be guilty of "shficut damim", shedding blood. Another example is taken from the passage in Exodus which describes a fight between two men, where one is sufficiently wounded so as to require staying in bed, but then recovers, the assailant is unpunished except that he must compensate the victim for the loss entailed by absence from work, and cause him to be thoroughly healed – "rapo yirapeh" (Exodus 21: 18-19). And in considering this passage, the School of Rabbi Ishmael says: "Rapo yirapeh" – heal he shall heal -- means that authorization was given to the physician to heal the patient. Yosef Karo wrote in the Shulchan Aruk (yoreh deah 336): "The Torah placed it within the providence of the physician to heal; moreover this a mitzvah, and it is included in the category of saving life, as we have seen.
There is then no question that under Jewish law physicians are required to heal – and patients are required to allow themselves to be healed. As we find in the Birkey Yosef: "Nowadays one must not rely on miracles, and the sick person is duty bound to act in accordance with the natural order by calling on a physician for healing. In fact, to depart from the general practice by claiming greater merit than the many righteous men of previous generations who were cured by physicians, verges on the sinful, both on account of the implied arrogance, and the implied reliance on miracles when there is danger to life." Therefore, one should act as all men do, and be healed by physicians.
There are, however, some limitations to this injunction. A treatment whose efficacy is uncertain is not incumbent upon a patient, even if no potential hazards are known. All the more so is treatment not incumbent when there are significantly hazards, as there are for example, in kidney dialysis. And even if it could be argued that risks were minimal, and that the treatment’s curative power was well founded, one might still defend the patient’s right to refuse it.
Let us assume, though, for the sake of the argument, that the obligation to heal, and that of being healed are clearly established. We have only scratched the surface of the problems with health care delivery, cost and equity in the United States of America. For a country as rich as ours, and for a country with such advanced medical technology, to have so many people receiving inadequate or sometimes no health care, to be 17th or 19th on the list of nations with regard to infant mortality, and to have a system so costly that it eats up more than an eighth of our GNP, is not tenable. There is much more to this situation than the physician’s desire to heal, and the patient’s need to be healed.
The OCAR Health Committee, working the Interreligious Health Care Access Campaign, has determined that what will best resolve all three major concerns – access, cost and equity—would be a universal access, single-payer health care delivery system. Details of our objectives are recorded in the health care resolution passed by the OCAR in Ft. Lauderdale last June. There would be room, in many specific proposals, for private insurers to provide more comprehensive coverage for those able to afford it, or to provide elective procedures, cosmetic surgery, private hospital rooms, and a range of other services not offered under the basic plan.
Rabbi Immanuel Jakobvitz, former Chief Rabbi of Britain, and a medical ethicist of some note, recently visited Northern California, and made some trenchant observations about the American system of health care delivery. He was appalled by the conditions he discovered in the United States: "I hear, for instance, about millions of people who are not covered by any form of health insurance. We as Jews should be in the forefront of advocating and alerting public opinion to the urgent necessity of remedying a major fault in the structure of society."
He continued: "We ought to resume our role as Jews to play a part in the advance of moral concerns, in the preservation of human health and life. These are issues which are not merely marginal to Jewish concerns, but central to the Jewish purpose."
Rabbi Jakobvitz reminded his audience that according to Jewish Law (Halakhah), it is the patient, not the physician, who must initiate the healing process. It is the patient who must ensure access to medical care. He pointed out, for instance, that a Talmud Chacham (a student) must not live in a community, which has no doctors. But of course today’s expensive treatment modalities are far beyond the means of most individuals to pay for, sometimes even when insured, and far beyond the means of any Talmud Chacham I’ve ever heard of!
That’s where society begins to have an obligation to those who cannot afford to supply these requirements, he added. And that includes the freedom of citizens in need to have the most advanced medical techniques and services available to them, whatever they may cost. This, however, is the sticking point; we do not have sufficient resources to meet such needs and the ‘freedom’ of which Dr. Jakobvitz speaks cannot mean that everyone should expect the state (by which I mean any branch of government) to provide that expensive care.
One of the key questions then becomes how to balance whatever obligation exists to provide what we might call ‘Cadillac’ health care with the obligation to provide even minimal care to the residents of our urban ghettoes. We do not, in fact, have unlimited resources, nor do we have a delivery system that can yet provide the resources we have to all those in need.
We come then to the crux of the matter. Can we justify any form of rationing of health care so that all will get some, instead of some getting as much as is available? Judaism offers us some guidance on these matters, though I do not wish to suggest that what I am about to say is accepted on all fronts. My reading of the situation is like this: Let’s suppose that a band of brigands has captured a group of hostages. Jewish law says that if they demand one or several unnamed hostages, so the rest can go free, you may not respond; but if they name one hostage, to be turned over to be executed, under threat of killing everyone, you may do so. If we transfer this logic to the health care delivery system, we can argue that allowing a particular terminally ill patient to die, rather than applying expensive treatment modalities, which would then allow resources to be attached to more viable patients, the decision could be justified.
Or take the famous instance where the conundrum is posed: Two men are wandering in the desert, and there is only enough water to enable one to survive. Should the water be divided so both shall die? Or should a decision be made as to which one has the most reason to live and give that person all the water? While there are divided opinions on this, it seems clear that one option would certainly be to decide which one has the best reason to continue living, or perhaps the most utility to society, rather than that both shall die. When there are limited resources, such decisions become necessary.
Of course, many have argued that the United States has unlimited resources, which makes these examples superfluous. It is hard for an American, even more so for a Jewish American, to accept that there are limits to available resources for health care. Our colleague Marc Gellman, who chairs the committee on medical ethics of the UJA/Federation of New York, stated that, "The notion that there would be reasons not to heal -- either economic or personal -- is not immediately comprehensible to Judaism. Our tradition supports triage when a society has limited resources and must select among various possible beneficiaries. But what we have in America is false triage." I assume he means that we do have the resources we require, but not the political clout to apply those resources to health care. Consider the story of Rabbi Joshua Ben Levi, as recounted in Midrash Rabbah. We are told that Rabbi Joshua went on a mission to Rome, and ventured forth on a tour of city. He saw magnificent statues that were erected in the squares and parts of the metropolis. He saw that those masterpieces of art were covered with expensive drapes and tapestries to protect them from the ravages of the elements. But at the same time he also saw abject poverty. He beheld a poor man dressed in rags and tatters, standing virtually at the feet of one of the statues. Rabbi Joshua marveled at the stark contrast. At the time, Rome was the capital of the civilized world, but would rapidly fade into insignificance; a city in which statues wear robes and human beings wear rags cannot long endure.
I would however argue the case that we do not have unlimited resources, and thus are making triage decisions all the time, whether they are made by doctors who quietly refuse to suggest or apply expensive treatments, or by the fact that residents of our urban ghettoes simply don’t get to participate in the health care delivery system except via the emergency room.
Given a choice between prolonging life, at whatever cost, and enhancing quality of life, traditional Judaism comes down clearly on the side of prolonging life. I think, however, it is time for us to challenge that conclusion. As people live longer and longer, and more and more expensive treatment modalities are discovered, the proportion of cost involved in prolonging life overloads the system.
Here is the argument as presented by Dr. David Bleich, an Orthodox authority. He asks the question: Does a physician have the responsibility to prolong the life of an incurable patient? In his response, as printed in the recent issue of Sh’ma, Bleich explained that in a recent lecture, he had pointed out that in Jewish law there are relatively few exceptions to the general obligation of providing all available medical therapy. A physician who had listened to the lecture with increasing discomfort came up to him afterwards and said: "I have been practicing medicine for over thirty years, and I have been taught that it is a physician’s duty to cure patients, but no one have ever told me that prolonging the life of an incurable patient is itself part of the physician’s responsibility."
Dr. Bleich realized that there was a chasm between Jewish values and the values of the dominant culture in which we live. One might naively suppose that the sanctity of human life and of every moment of that life was a value universally accepted. But when nip comes to tuck, decisions are made on the basis of entirely different considerations.
There was a time, he argued, when there was good reason to assume that American courts would hold that the value placed by society upon human life constitutes a state interest of a magnitude sufficient to overcome any claimed constitutional right to privacy. The decision of the New Jersey Supreme Court in the Quinlan case tempered such notions by making state interest contingent upon the quality of life to be preserved. The U.S. Supreme Court decision will probably be understood to mean abandoning that concept entirely.
If a physician has to choose between prolonging life of one patient and improving the quality of life of another, he or she has not real choice: preservation or prolongation of life takes precedence. Which is why, in Bleich’s view, the proposed Oregon plan for the allocation of medical funds is, from a Jewish perspective, morally flawed in the tacit priority it gives to improving the quality of life over the prolongation of life.
He refers to a decision already implemented: In 1987 Oregon eliminated Medicaid payments for certain organ transplants. Oregon did not do so because it questioned the efficacy of the transplant procedures in prolonging the lives of recipients, or because it regarded the mortality rate to be of a magnitude that rendered the procedure unconscionable. Nor did Oregon do so because it sought to protect donors from precipitous removal of their organs on the basis of brain death criteria. Oregon did so knowing full well that people whose lives could be saved would be allowed to die for no other reason than their ability to pay for the procedure. The sole justification was the plea that the funds saved would be dedicated to providing prenatal care.
Let’s now take a closer look at the Oregon plan, because it serves as a paradigm as we try to confront the question of rationing health care. Basically, what Oregon is trying to do is to ration health by ranking all services according to their costs and benefits. Oregon’s plan would expand Medicaid to cover all state residents below the poverty level, but it would reduce the level of services, refusing to pay for medical treatments that rank below number 587 on a list of 709 medical procedures.
In ranking various treatments, Oregon considered their cost in relation to their effectiveness. It also weighed their contribution, if any, to a patient’s quality of life and to the well being of society. Under current law, people under the age of 21 are entitled to all medically necessary services if they are enrolled in Medicaid. Under the Oregon plan, there is no minimum set of benefits, and the plan would no longer have to pay for the treatment of viral pneumonia, viral hepatitis, chronic bronchitis, certain types of asthma or certain back sprains because the treatments for these conditions rank below 587 on the list. Nor would it have to pay for treating cancer when doctors concluded that a patient had less than a 10% chance of surviving for five years or more.
In addition, some common medically necessary pediatric services would not be covered, and it is unclear whether children with ailments like viral pneumonia would receive the treatment they need, the report said. The problem of providing appropriate and adequate health care for children is a challenge within the larger challenge of health care.
Oregon plans to enroll most welfare recipients in health maintenance organizations, and other forms of managed care under which doctors coordinate care for patients in return for a monthly fee, set in advance. Oregon says this will save money by reducing hospital admissions and the use of emergency rooms for primary health care.
The Oregon plan is awaiting permission from the Federal department of Health and Human Services to disregard certain requirements of the Federal Medicaid law. In the meantime, the debate continues.
I think we can agree that it would be far better if additional resources for health care delivery could be diverted from other sources - the Space program, for example, or the peace dividend. But I think we can assume that the enormous costs of health care delivery and the glaring inequities it spawns, will not be resolved by throwing more money at it, and that we must come up with a more cost-effective plan with a whole new system of providing coverage. The multitude of proposals that are being promoted on the state and national levels offer some rather creative choices.
I’d like to address one other issue that has received a lot of media attention – the matter of malpractice suits. The impact of the increasing litigation on the ways in which doctors provide health care, or on their decisions to provide any health care, is enormous. You and I all know Obstetricians and Gynecologists who have stopped delivering babies, because so much can go wrong, and so many people are willing to sue them if it does. Surgeons comprise another high-risk group for malpractice suits. Since physicians are mandated to heal every patient who needs him or her, it is inevitable that some patients will not be relieved of their pain and some will die.
To what extent then, is the physician legally liable for some unfortunate results of his ministrations? In Tosefta Gittin we learn that if a patient dies through no malice on the part of the doctor, the physician incurs no guilt. This decision is based on the general principle that if a person performs a mitzvah and in performing it some harm comes inadvertently, he should not be held liable.
The Tosefta makes this analogy: if a father strikes a child disciplining him (a duty) and a fatal accident occurs, or if an agent of the courts is sent to flog a culprit and the culprit dies, these men are held guiltless. They were performing a duty and did not intend the unfortunate result. The Tosefta includes the physician in this list because he is performing the mitzvah of healing. This free from guilt is an exception in favour of physicians, since the general rule is that someone is liable for negligence even if no malice is intended.
This exception is justified Mipney Tikkun Ha-Olam—for the maintenance of society. The reason being that if physicians would constantly be endangered because of non-malicious error, then no one would risk choosing this form of livelihood and thus the safety of society (Mipney Tikkun Ha-Olam) would be endangered. It is a public necessity, therefore, that physicians be held guiltless in cases of unintended misfortune.
If a physician errs and knows that he has erred, and realizes that he has been careless, then he is obliged to pay damages as outlined in the law, and since it is difficult to know whether there was serious neglect and whether the physician acted to the best of his knowledge, even though he may be free from human recourse, he will be judged by God. For an unintended and unrealized injury, he has no liability. (All of this assumes that the doctor is properly trained and licensed; the material is quoted from New Reform Response by Solomon Freehof, pp. 226-230).
But the point here is that any reform of the health care delivery system must also include specific limits on the amounts that can be assessed in malpractice suits, and should make filing them far more difficult. This is not a time to encourage physicians either to turn away from difficult pregnancies, for example, or give an excessive number of tests to protect themselves from a suit.
We have only begun the analysis of the ethical and moral issues raised by the transparent need to overhaul our nation’s health care delivery system. I would append here just a few of the questions that must be confronted by any Jewish audience that intends to be serious about advocating radical change in the system. Some indeed go to the heart of what we have come to expect as health care consumers. Does a patient have the right to choose a particular physician? Could we give up that right if we knew that would mean better health care for more people? What if our 93-year-old aunt needed cataract surgery, but we knew that the resources allocated for that procedure could enhance the life of several neonates? Would we still insist on that surgery? Do we require that expensive CAT scans and Magnetic Resonators be available in our small communities, or are willing to travel to a metropolitan area to obtain the tests? In other words, is our expectation of unlimited, immediate, and expensive health care realizable and equitable in the face of 37,000,000 Americans who have no health insurance at all?