High-Risk Medical Procedures - Part One by Rabbi Chaim Jachter
This week we shall begin to discuss the question of the propriety of engaging in high-risk medical procedures. We shall survey this issue from its sources in the Tanach and Gemara, eighteenth-, nineteenth-, and twentieth-century Poskim. Rav J.David Bleich contributed a very important article on this subject to Tradition (Fall 2003) that provides much new insight with regard to this issue. We shall present Rav Bleich’s points and hopefully make some contributions to the discussion of this topic.
Tanach and Gemara
The Gemara (Avodah Zarah 27b), in its discussion of the propriety of risky medical procedures, cites a story recounted in Melachim II 7:3-8. In the course of the Tanach’s discussion of the king of Aram’s siege of Shomron during the reign of King Yehoram (the son of Achav), the Tanach records how four lepers were deliberating their course of action. Shomron was suffering from a terrible drought and the lepers realized that if they remained in the besieged city of Shomron they would soon die of starvation. They thought that it would be prudent for them to enter the camp of the enemy, for even if the Arameans would kill them immediately, they would have died shortly anyway if they had remained in the camp of Israel. It was worth risking immediate death because of the possibility that the Arameans would pity them and feed them, thereby allowing them to live much longer than if they had remained among their own people.
The Tanach records that they concluded that they should enter the enemy camp, whereupon they discovered that Hashem had made a great miracle for the Israelites and had chased the Aramean army away.
Talmudic Application – Pagan Doctors
The Gemara applies the reasoning and actions of the four lepers to a problem faced in the time of the Gemara. During the time of the Mishnah and Gemara, pagan doctors harbored enormous ill will towards Jews and posed a grave threat to their Jewish patients. Chazal therefore forbade using pagan doctors. However, the Gemara concludes that if a patient will soon die within a short time and no Jewish doctor is able to heal him, he may visit the pagan doctor with the hope of curing his illness, despite the grave risk associated with such a visit.
The Gemara sanctions assuming the risk of immediate death by the hands of the pagan doctor despite the fact that the patient would have certainly lived for a brief time if he did not visit this doctor, asserting that “LeChayei Shaah Lo Chaishinan,” we are not concerned about a very brief amount of life. The basis of this assertion, states the Gemara, is the above-cited story in the Tanach about the four lepers.
Two Questions on Avodah Zarah 27b
We may raise two questions regarding this Gemara. First, the Gemara’s assertion that “LeChayei Shaah Lo Chaishinan” seems astonishing in light of the Gemara’s teaching elsewhere (Yoma 85a) that we may violate Shabbat in order to preserve Chayei Shaah. Indeed, the Shulchan Aruch (Orach Chaim 329:4) codifies this rule and the Biur Halacha (ad. loc. s.v. Ela) adds that this rule applies even if the patient will not be able to do anything meaningful with the short period of life that he will be given as a result of the efforts made to save him.
Tosafot (Avodah Zarah 27b s.v. LeChayei) and the Taz (Yoreh Deah 155:2) answer that in both Talmudic passages the operating principle is to act in the best interest of the patient. On one hand, we violate Shabbat in order to allow a patient to live a bit longer. In this case, concern for Chayei Shaah is in the patient’s best interest. On the other hand, the Gemara tolerates risking Chayei Shaah in the hope that the patient will be cured and live for a considerable amount of time. In this situation, risking Chayei Shaah is also in the best interest of the patient. For further discussion of the “best interest of the patient” standard in the context of Chayei Shaah, see the Tiferet Yisrael (Yoma 8:3, s.v. Yachin).
The second question we may pose is why the Gemara bases its conclusion on the thought process and actions of these four lepers who do not appear to be Torah scholars. Indeed, Chazal believe that Hashem afflicts people with leprosy because of certain sins that they violated (see Arachin 15b-16a). Moreover, Chazal (Sanhedrin 107b) identify these four lepers as Geichazi and his three sons. Geichazi is regarded by Chazal as a profound sinner (see Berachot 17b, Sanhedrin 90a, and Sanhedrin 107b). Accordingly, it seems bizarre that Chazal derive a Halacha from Geichazi and his three sons!
We may answer that although these four lepers were not reputable individuals, the Tanach seems to approve of their actions. Indeed, the action of the four lepers led to the salvation of Shomron. Moreover, the very fact that the Tanach (so uncharacteristically) records the thought process of the four lepers, seems to signal the Tanach’s approval of their thought process and actions (although not of the four lepers as individuals; the fact that they remain anonymous perhaps indicates the Tanach’s disapproval of these individuals, which may have served as a cue for Chazal to conclude that these lepers were none other than Geichazi and his sons). Richard Schulz of Teaneck adds that if Hashem allowed them to live, He was directly approving their action. Indeed, Rav Yosef Dov Soloveitchik (cited in Nefesh HaRav p. 88) argues that history potentially can resolve certain Halachic policy issues.
Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 3:36) offers another answer to this question. Rav Moshe writes that Halacha allows prudent human judgment to determine when it is permissible to engage in risky medical procedures. Indeed, the Halacha, in general, looks to prudent human judgments to establish the norm regarding which behaviors involve tolerable risk (Keivan DeDashu Beih Rabbim Shomer Peta’im Hashem – see Yevamot 12b and Niddah 31a). Accordingly, although the four lepers were not Torah scholars, their logic reflects prudent human judgment (and proved successful), and therefore a Halachic principle may be derived from their thought pattern and actions.
Rav Bleich adds to this concept by noting that human beings are Shomrim (guardians) over the bodies that the Creator has bestowed upon them. He also notes that the standard expected from Shomrim (those who have assumed the responsibility to watch something) is that they guard items in the manner that prudent individuals normally guard them (see Bava Metzia 42a and 93b). Thus, the Halacha expects each of us to guard his body in the manner that prudent individuals would. Accordingly, it is understandable that the Gemara looks to four lepers for guidance regarding what is considered prudent behavior.
Eighteenth and Nineteenth Century Poskim – Risky Medical Procedures
In the eighteenth and nineteenth centuries, man was starting to make progress towards developing treatments to help heal individuals from serious illness. Accordingly, it is not surprising to find that a number of the great Poskim of this time were asked if the Halacha tolerates engaging in high-risk medical procedures in order to save one who, without medical intervention, would certainly die within a short while. The Poskim responded unanimously in favor of permitting such risky surgeries, despite the serious risk that such surgeries pose to the very short period of time the patient has left to live. The primary source of these authorities is the story of the four lepers and Avodah Zarah 27b. The Poskim who permit submitting to such hazardous medical procedures include Teshuvot Shvut Yaakov (3:75 cited in Pitchei Teshuva Y.D. 339:1), Gilyon Maharsha (Y.D. 155:1), Chochmat Adam (Binat Adam 73,93), Teshuvot Binyan Tzion (111), Tiferet Yisrael (ad. loc.), Teshuvot Achiezer (2:16:6), Teshuvot Igrot Moshe (Y.D. 2:58 and 3:36), and Teshuvot Tzitz Eliezer (4:13). I am unaware of any dissenting opinion.
These Poskim marshal sources in addition to the narrative in Tanach and Gemara Avodah Zarah 27b to support their rulings. The Binyan Tzion cites the explanations of Ramban (in his work Torat HaAdam, 2:43 in Rav Chavel’s Kol Kitvei HaRamban) and Tur (Y.D. 336) for why the Gemara (Bava Kama 85a) states that Hashem issued a divine license for us to practice medicine. Tosafot (ad. loc. s.v. SheNitnah) explain that we need the divine license to heal since otherwise it would appear to contradict the divine will for the patient to be ill. The Ramban and Tur, though, explain that since medical procedures are fraught with danger, absent a specific divine license we would have thought that we are not permitted to assume such risks. The divine license sanctions physicians taking risks in their attempts to heal their patients. The Binyan Tzion concludes from the Ramban and the Tur that since we are permitted to take risks in an attempt to heal patients, we should also be permitted to risk Chayei Shaah in order to restore the health of a patient.
The Tiferet Yisrael notes (based on the Talmud Yerushalmi, Terumot chapter eight) that one is permitted to place himself in a situation of possible danger in order to save another from certain death. Although the Talmud Bavli does not make this assertion, nonetheless, this passage in the Talmud Yerushalmi is cited as normative by the Beit Yosef (Choshen Mishpat 426). Indeed, Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:174:4) rules that one is permitted to choose to place himself in possible danger to save another from certain death (though not all Poskim agree with this ruling, see Teshuvot Yechave Daat 3:84 and the many sources cited therein). For further discussion of this issue see Pitchei Teshuva (C.M. 426:2) and Nishmat Avraham (1:220-222).
The Tiferet Yisrael writes that since one is permitted (in his opinion) to place himself in possible danger in an attempt to save another from certain death, one is also permitted to place his own Chayei Shaah in possible danger in an attempt to save himself from certain imminent death. Interestingly, the Tiferet Yisrael writes (towards the end of the nineteenth century) that based on this Gemara, we are permitted to inoculate ourselves against smallpox even though there is a small chance (he writes that one in a thousand was the prevailing risk in his time) that one may contract small pox from the inoculation. He argues that we are permitted to assume the small risk in order to avoid the must greater risk of contracting smallpox.
We should note that the Tiferet Yisrael is speaking of a considerably different situation than did the Tanach, Gemara, and the other eighteenth and nineteenth century Poskim. These other sources speak of a situation where someone assumes a very great risk when he is expected to die otherwise in a very short amount of time (Chayei Shaah). The Tiferet Yisrael extends the Gemara’s principle to teach that one may assume a small short-term risk in order to avoid a greater long-term risk. The basis for the Tiferet Yisrael’s ruling, though, is fundamentally identical with the Gemara’s case. In both cases it is permitted to assume these risks because most prudent individuals would agree that such risks are worth taking and constitute an appropriate manner for us to guard the body that Hashem has bestowed upon us.
We have seen that the Halacha permits us to place ourselves in danger in the attempt to extend our lives. Next week, we shall explore the parameters and limitations on when we are permitted to engage in hazardous medical procedures in attempting to achieve a cure for a serious illness.