Last
week we began to explore the issue of whether a gravely ill individual
who is expected to live only a very brief while is permitted to undergo
a very risky medical procedure in an attempt to restore his health. We
noted that the Gemara articulates a principle that “LeChayei
Shaah Lo Chaishinan,” that we are permitted to risk a small
amount of life in the hope of restoring one’s health. Thus,
even though the patient may die immediately from the medical
intervention, he is permitted to risk Chayei Shaah (the brief amount of
time that he is expected to live without medical intervention) in order
to hopefully restore his health.
This week we shall begin to explore some of the parameters of this
issue. We shall review the debate regarding how much of a risk to
Chayei Shaah one is permitted to assume and what the precise definition
of Chayei Shaaah is.
How
Much Risk?
The Gemara does not explicitly state how much risk to Chayei Shaah we
are permitted to assume. This issue, however, is debated by nineteenth
and twentieth century Poskim. The Mishnat Chachamim (cited in Teshuvot
Achiezer 2:16:6) asserts that one is permitted to risk Chayei Shaah
only if the risk to Chayei Shaah is fifty percent or less (Safek
HaShakul). According to this view, one who is expected to live only for
a short while is forbidden to engage in a medical procedure if there is
a chance greater than fifty percent that the medical procedure might
kill him immediately, even though there is a chance that the procedure
might completely heal him. The Chatam Sofer (Teshuvot Y.D. 76, cited in
the Pitchei Teshuva Y.D. 155:1) seems to agree with this ruling. Rav
Chaim Ozer Grodzinsky (Teshuvot Achiezer ad. loc.), however, disagrees
and permits a patient to assume an even greater risk than fifty percent
in the hope to achieve a longer life.
Later twentieth century authorities debate how to resolve this issue.
Teshuvot Tzitz Eliezer (10:25:5:5) seems to agree with the Mishnat
Chachamim. On the other hand, Rav Moshe Feinstein (Teshuvot Igrot Moshe
Yoreh Deah 2:58, written in 1961) rules that one may risk Chayei Shaah
even if there is only a Safeik Rachok (remote or slim chance) that the
procedure will effect a cure, and it is more likely than not that the
procedure will kill the patient immediately. Rav Moshe writes that Rav
Yosef Eliyahu Henkin agreed with this ruling (from 1936-1972, the Lower
East Side of Manhattan was blessed with the presence of two outstanding
Poskim, Rav Moshe and Rav Henkin; occasionally we find that regarding
very serious and new issues Rav Moshe reports that he consulted with
Rav Henkin). However, writing in 1972, we find that Rav Moshe (Teshuvot
Igrot Moshe Y.D. 3:36) is much more inclined to the opinion of the
Mishnat Chachamim. He concludes that we cannot protest if one wishes to
rely upon the ruling of Rav Chaim Ozer and assume a very great risk to
Chayei Shaah.
Proofs
to Each Opinion
Rav Chaim Ozer writes that the Gemara’s statement that
“LeChayei Shaah Lo Chaishinan” appears to be
absolute with no reservations. On the other hand, Rav Moshe (in the
later responsum) points out that the concern of the Gemara (as
discussed last week) is that a pagan doctor would immediately kill his
Jewish patient. Rav Moshe reasons that it is logical to assume that
this concern only rises to the level of a Safeik Hashakul that the
pagan doctor would harm his Jewish patient (see the Igrot Moshe for Rav
Moshe’s understanding of Rashi s.v. Safeik Chai). Thus, Rav
Moshe argues, the Gemara sanctions assuming only a Safek Hashakul risk
to Chayei Shaah.
Rav Moshe also draws a proof from the story in Tanach (Melachim II
7:3-8) that serves as the source for permitting us to risk Chayei Shaah
(as discussed last week). In that story, the starving lepers were
willing to enter the enemy camp and ask for food despite the risk that
the enemy would kill them immediately. Rav Moshe argues that the lepers
were not assuming a greater than fifty percent risk to their Chayei
Shaah, since it would appear to be more in the interest of the Arameans
to take the lepers as slaves instead of simply killing them. After all,
the lepers were not combatants that posed a threat to the Arameans and
thus there was no need to kill them.
On the other hand, one could argue that lepers would not be desirable
slaves. Accordingly, the only chance the lepers thought they had was
for the Arameans to pity them since they were non-combatants and feed
them. As Rav Bleich notes, it seems that the chances for mercy were far
less than fifty percent.
The conceptual basis for this disagreement seems to be as follows. The
more liberal approach would argue that the Halachic standard is
essentially what most prudent people would choose. They would argue
that prudent people would view it as reasonable to place Chayei Shaah
at great risk for a chance at achieving a cure for one’s
ailment.
The more conservative approach could adopt one of two approaches. These
authorities might argue that prudent people would not view a very great
risk to Chayei Shaah as reasonable. Alternatively, they might argue
that although prudent people regard such a risk as prudent, the Halacha
places a limit on the degree of risk we are permitted to assume. Recall
from last week that we cited Tosafot who explain that we sanction the
risk to Chayei Shaah only because it is done LeTovato, in the
patient’s best interest. One might argue that the Halacha
believes that an enormous risk to the patient’s Chayei Shaah
is not in his interest and therefore we disregard “the
prudent person standard” in such a situation.
Defining
Chayei Shaah
The Gemara does not precisely define Chayei Shaah. Rashi (s.v. Chayei
Shaah) explains that the Gemara is speaking about one who is expected
to live for only a day or two. This statement does not appear to
establish a formal standard for the category of Chayei Shaah, as Rashi
seems to deliberately use an imprecise example – a day or
two. Indeed, we do not find a precise definition for the term Chayei
Shaah in the writings of the Rishonim and early Acharonim. In fact, Rav
Shlomo Eger (Gilyon Maharsha 155:1) permitted a very risky medical
procedure on a patient who was expected to live “Zeman
Mah,” only a short while, even though it seems that he was
expected to live longer than a day or two.
Accordingly, we should not find it surprising that Rav Chaim Ozer
permits a very risky surgery for someone who was expected to live for
six months. Rav Chaim Ozer writes “the logic is
obvious” that there is no conceptual distinction between a
day or two as opposed to six months. Indeed, as we explained earlier,
the basis for permitting a risk is that reasonable people regard such
action as prudent and thus it is an appropriate manner for us to guard
the body that Hashem has given us. Therefore, since most people would
regard risking six months of life in the hope of achieving a cure to be
as reasonable as risking a day or two of life to achieve a cure, there
indeed is no conceptual difference between risking a day or two as
opposed to six months.
Rav Chaim Ozer does not set six months as the upper limit on the time
that he believes is permissible to risk. This simply was the situation
of the case regarding which he was asked to adjudicate. Indeed, Rav
Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 3:36) writes that one may
undergo very risky surgery in the hope of achieving a cure, even if the
person is expected to live up to a year. Rav Avraham Yitzchak HaKohen
Kook (Teshuvot Mishpat Kohen 144:3) agrees with this standard. Rav
Moshe writes, however, that this ruling does not apply if the patient
is expected to live more than a year.
Rav J. David Bleich (Tradition Spring 2003) raises the possibility that
the standard of one year is not ironclad and might depend on the
circumstances. He gives an example of someone who is afflicted with a
slowly developing lethal form of leukemia, and doctors expect that he
will live for thirteen months unless he receives a bone marrow
transplant. The bone marrow transplant does involve a significant risk
of death from tissue incompatibility or infection.
Rav Bleich notes that in such a case it seems imprudent to wait a month
for the patient’s life expectancy to dip below a year in
order to permit him to assume the risk of the bone marrow transplant.
This is because the chance of the surgery’s success
diminishes as the leukemia has developed further and the
patient’s condition has deteriorated further. Rav Bleich
cites Tiferet Yisrael’s ruling that we discussed last week
permitting smallpox inoculation (despite a one in a thousand chance of
contracting smallpox from the inoculation) as a precedent to permit a
risky medical procedure on a patient who is expected to live longer
than a year.
It appears to me that Rav Moshe would not necessarily forbid the bone
marrow transplant (or the smallpox inoculation) in the scenario
described by Rav Bleich. Rav Moshe speaks of a very risky medical
procedure that would be performed only if the person had a very short
life expectancy. The risks involved in a bone marrow transplant do not
seem at all to be similar to the risks involved in the procedure
addressed by Rav Moshe. One could argue that the lower the risk, the
longer the amount of life one is permitted to risk. According to this
approach, even Rav Moshe would permit the smallpox inoculation at a
time when it involved a one in thousand risk of contracting the disease.
One could argue that it is difficult to establish objective criteria
for precisely how much risk of how much life is considered acceptable
according to the Halacha. One approach could be, as we have presented
earlier, that the Halachic standard follows the opinion of most prudent
people. Most reasonable people may deem a certain amount of risk to a
certain amount of life to be either prudent or imprudent, and this is
the standard that we follow. Obviously, consultation with top tier
doctors and rabbis is necessary for one who (Rachama LeTzlan) finds
himself in such a situation in order to properly assess the wisdom of
any high-risk surgery.
Next week we shall (IY”H) continue our discussion of
high-risk medical procedures by further exploring the parameters of the
permissibility of engaging in dangerous medical procedures in the hope
of effecting a cure.
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