Question
On what basis should medical professionals determine which patient gets lifesaving treatment
in a pandemic emergency setting?
Questions to Ponder
- Can you remove a viable patient from a ventilator or an ICU bed if someone with a more dire need is present (without their consent)?
- Should age be considered a factor in determining who receives treatment?
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Can a viable patient currently receiving treatment be disconnected in favor of another with a better diagnosis?
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Should someone who has a terminal illness receive treatment if there are limited supplies?
Definition of Triage:
The term used for deciding whom to save and whom to ignore is “triage.” It comes from the military environment, where medics had to decide which wounded soldiers on the battlefield they should try to save and which ones they unfortunately had to ignore. The general rule of triage that comes out of that environment is this: without regard to rank or other element of social status, pay attention first to those who need immediate attention in order to survive and, among those, treat first the ones who have the best chance of survival so that they can continue to fight if helped to survive now. (Rabbi Elliot Dorff)
Ancient sources in the Jewish tradition also spoke of triage, but not in a medical context. That is because although ancient and medieval medicine was remarkably good at preventive techniques, its curative capabilities were largely ineffective. Thus Leviticus 13-14 already understands that quarantine should be used to contain contagious diseases, and the Talmud tells us to avoid crowds during epidemics – remarkably astute advice for our time. The Sabbath was a significant Jewish contribution to human understanding of what is necessary for physical as
well as emotional and spiritual health. Rabbinic sources warn against eating uncooked meat and advocating eating vegetables
Bava Kamma 60B
3 B. Sanhedrin 9a.
4 B Berakhot 44b.
The Jewish sources that deal with triage are therefore not about access to health care, which was ineffective and therefore cheap. The sources instead address two other conditions of scarcity that Jewish communities faced, namely, poverty and redemption from captivity.The following criteria for determining who gets what emerge from the sources (see the book for the sources and a description of how each would be used in context):
1) Social hierarchy: save those who are most important in society
2) Concentric circles: yourself first, then your immediate family, then your extended family, then your local Jewish community, then the larger Jewish community, and then people of other faiths
3) A hierarchy of social responsibilities: redeeming captives first, then the sick among the poor, then feeding the poor, then clothing the poor (with women taking precedence over men for both food and clothing), then Jewish education, then building and supporting a synagogue (S.A. Yoreh De’ah 249:16; 251:7-8; 252: 1, 3).
4) Greatest needs of the individuals at risk: Save those whose lives are most at risk first, followed by those at lesser degrees of risk for their lives, followed by those at risk for harm (e.g., assault, rape) (S.A. Yoreh De’ah 252:8).
5) Everyone is equal (M. Sanhedrin 4:5; B. Berakhot 17a; and the difficult case of handing someone over to the enemy in J. Terumot 7:20 and Genesis Rabbah 94:9).
Triage Decisions in Hospitals
1) Treating people equally, either through “first come, first serve” or through a lottery.
2) Favoring the worst-off on the basis of the “rule of rescue.”
3) Maximizing total benefits (utilitarianism), measured either by the number of
lives saved or the number of life-years saved.
4) Promoting and rewarding social usefulness, based either on instrumental value
for the future of the society or on reciprocity for past contributions, including those on the front lines of fighting COVID-19
Utilitarianism
1) Maximizing the benefits produced by scarce resources (saving the most lives)
2) Treating people equally (assign resources without discrimination)
3) Promoting and rewarding instrumental value (some people are more useful)
4) Giving priority to the worst off
“saving more lives and more years of life is a consensus value across expert reports.”
Rabbi Yehiel Yaakov Weinberg (1884 Poland)
Responsa Seridei Aish II, #38
The explanation is that life is the ultimate and clear value, and it is not subject to quantification and assessment, even if many lives can be saved only by murdering one person. Murder is absolutely forbidden, with no limit or condition.
How do we decide which patient to help when we are short on supplies or space?
Jewish law differentiates between length of expected survival:
human treifa - a person who will live for less than one year
חיי שעה - (lives for the time) meaning one year of expected survival
חיי עולם - (lives for the world) long-term recovery
one life may not be sacrificed for another אין דוחין נפש מפני נפש
Rabbi Moshe Feinstein
Responsa Igrot Moshe, Hoshen Mishpat II, 75.
If there are two patients before us, and both can be healed from other diseases that afflicted them, precedence should be given to the patient who might live more than one year, since they have not relinquished their hold on life, over another patient who, according to the physicians, will not live more than a year, for [the second patient] is considered terminal by the physicians, and even worse that he can’t live more than a year, which is the standard for a human trefah, even if there is a chance he will live many more years. But when the case is that in the estimation of the doctors that he won’t live more than two years, then this has no halakhic significance, but the two [patients] are considered equally in possession of life, and the [longer term] predictions of the doctors does not diminish his claim to life [support] and this does not justify preferential treatment. Rather the physician should treat whoever was presented first, or whoever was closer to his home. If the two patients were [equal in this regard] we might give priority according to the order in Mishnah Horayot, and if that isn’t known to the doctor, then let there be a lottery, so it seems in my humble opinion.
Can lifesaving medical equipment be removed from a person to save another person?
The background principle to these stories may be that the burden of proof lies on the one who does not have current possession of the goods.
Inference based on this text:
If someone has use of the equipment, they do not need to share it with another person.
Rabbi Nevins
To remove a medical intervention from one person for whom the intervention is futile to be used by another who may benefit from it is not a violation of the Rabbinic principle of ain dokhin nefesh mipne nefesh that one may not prefer one life over another, because that refers to situations in which it is simply our decision as to whom to save; in triage situations the medical condition of the patients involved is determining which one is more likely to survive, not our voluntary choice.
A person may never intentionally end the life of another, except in self-defense, justified war, and in very narrow and largely theoretical forms of capital punishment. Even if our intention is to save a different life, we may not intentionally end an innocent person’s life. To do so would violate the cardinal rule of halakhah, “we do not sacrifice one life to save another"
Differing Conclusions between Rabbis Nevins and Dorff
Nevins:
In the throes of a pandemic or other health emergency clinicians may need to choose among patients (or have a triage officer choose for them) to receive intensive medical treatment.
Jewish law provides several criteria for the prioritization of care based on the sacred obligation to heal those who are ill.
Patients who have the most urgent need should be the first to receive treatment, unless they are unlikely to survive, in which case patients who are expected to survive with intensive therapy should receive priority. After that, the first patient to request the resource has priority.
If a patient who is currently being sustained through artificial means decides (themselves, through advanced directive, or through proxy) to discontinue this therapy due to their experience of futile suffering, then it may be reallocated to another patient based on the above criteria.
Likewise, if a ventilator (or dialysis) dependent patient is deemed terminal, the scarce resource may be reallocated to a viable patient.
However, it is forbidden to remove a patient from a ventilator, causing their death, based only on the utilitarian assessment that another patient has a better long-term prognosis, or meets some other socially valued criterion.
Dorff
As I understand Rabbi Nevins’ position in comparison to mine, the primary place where we disagree is on my assertion that sometimes an intervention should be removed from Patient A in favor of Patient B because Patient B’s has a better chance of survival than Patient A does. Several things about this need to be explained. First, as I stated in paragraph #5 above, this is not, in my view, a violation of the Talmud’s principle that we may not prefer one life over another because all of those cases are ones in which it is simply a decision based on the actor’s preference to choose one person over another, for whatever reason the actor has for that choice. In triage situations, in contrast, it is the underlying medical conditions of the two or more patients before us that determines who should have access to the machines, medications, and personnel needed.
Which view do you agree with? Why?
P’sak Din: Consensus Halakhic Conclusionby Rabbis Dorff and Nevins
Our respective responsa addressed many of the medical, logistical, moral and spiritual challenges of medical triage in a crisis such as the Covid-19 pandemic. While our presentations differ in approach and presentation, and we reach some incompatible positions, we agree on the following practical conclusions:
1. Equal access to medical care is a moral and halakhic imperative. Triage decisions must not be based on criteria other than the best chance to save lives.
2. Scarce resources used to prevent infection such as personal protection equipment and vaccines may be assigned on a priority basis to medical professionals and other emergency responders in order to support them in their life-saving efforts.
3. Jewish law differentiates between brief respite (חיי שעה) and recovery (חיי עולם). Scarce medical resources may be directed toward patients who are expected with this therapy to recover over those who are not expected to recover, even with this therapy. Diagnostic tools such as the Sequential Organ Failure Assessment may be used to prioritize allocation of scarce medical resources towards patients who may be rescued, and away from those who are not expected to survive to hospital discharge.
4. If a patient is already receiving medical therapy and is responding, they may not be removed from the equipment prematurely in order to rescue the life of another person based on comparison of the two patients’ age, ability, general health, or social status. The only criterion for removing a person from therapy is the determination that they cannot survive to discharge, or their own request to shift to palliative care.
5. If the triage officer determines that a patient cannot be saved, and that their medical resources must be reallocated to another patient in urgent need, the basis for this decision must be explained fully and sensitively to the patient or their representative, and the hospital must continue to support the patient with appropriate palliative and pastoral care, maintaining the respect and dignity of the patient until the end.
Teshuvot of the Committee of Jewish Law and Standards of the Conservative Movement