University of Notre Dame Presentation
October 26, 2022
By Rabbi Shmuel Lefkowitz, President Chayim Aruchim a project of Agudath Israel of America
Presentation Notre Dame Law School Religious Liberty Initiative
Before I begin, I would like to acknowledge the presence of Rabbi Yosef Chaim Danziger of the Hebrew Orthodox Congregation of South Bend Indiana and a delegation of his members who have come to show their support for Chayim Aruchim’s mission and to express their gratitude to University of Notre Dame Law School for organizing this very important panel discussion.
Good afternoon
I thank you for the opportunity to meet with such an esteemed group to discuss such an important topic. Simply put, the topic of end of life issues.
Specifically, I will discuss:
The particular issues faced by the Jewish community when evaluating end of life issues;
The issues Chayim Aruchim has encountered in advocating for those patients who are within the Jewish community; and
How Chayim Aruchim advocates for legal protections of rights of conscience within the health care arena.
INTRODUCTION
Let me begin by defining the name of the organization, Chayim Aruchim. Chayim Aruchim means an extended or long life in Hebrew.
Agudath Israel of America which sponsors Chayim Aruchim, has been involved in end-of-life issues for many years. In 1987, its former President, Rabbi Morris Sherer, initiated, advocated for and helped pass the DNR law in New York State. He did the same for other health care related legislation, including with respect to the definition of “brain-deadâ€.
Prior to 2010 when Chayim Aruchim was founded, when someone called Agudath Israel of America and asked for help in connection with a medical decision that was contrary to the person’s religious beliefs, such as pulling the plug on a brain-dead person, one of our lawyers sent a letter and that typically was sufficient.
By 2010, these kinds of calls related to a wider variety of issues such as DNR, refusal to put in feeding tubes, intubation, discharging people to hospice, or being told to give up – there is nothing more to do.
At that point, we decided that we must adopt a more comprehensive and proactive approach, including publicizing our mission through community outreach and developing stronger relationships with hospital leadership so that we could be more effective when we were called upon to assist.
In 2012, we launched a 24 hour hotline. This hotline is staffed by knowledgeable and compassionate Rabbis. For two years, these Rabbis attended classes for three hours a week, every other week, becoming familiar with the relevant medical matters. These classes were taught by specialists in various fields, such as cardiology, neurology, oncology and nephrology – just to name a few.
Not surprisingly, we quickly learned that family members and patients need a great deal of help and guidance. This is particularly true when dealing with a healthcare crises.
When an individual is seriously ill, the patient and the family are not equipped to properly evaluate the critical medical decisions that they are faced with. For example:
How are they supposed to make a decision when they don’t really understand the medical terms the doctor used?
Should they continue the treatments or not?
The patient isn’t eating, should they put in a Peg?
The medical staff is urging the family to sign a DNR (Do Not Resuscitate) or DNI (Do Not Intubate). Should they sign or not?
Is the medical staff describing all of the relevant options or is the advice colored by their personal values ?
Does the family really understand all of the options?
For us, our actions are guided by the Torah, the Jewish Bible. The Bible teaches us that the sanctity of human life outweighs all our earthly possessions.
While we are prohibited from building the holy Temple on the Sabbath, we are commanded to violate the Sabbath and do everything in our control to save a life.
That command also applies to a severely neurologically impaired person or a person who is destined to die due to a fatal illness or accident. Our Code of Laws, otherwise referred to as “halachaâ€, says that even if a person is under a pile of rocks and is dying and will only be able to live a very short amount of time, one must still violate the Sabbath to save him. The guiding principle is that life is of supreme value – every life. Life is precious.
So, let me discuss the four areas that cover most of our work. :
(1) Legal,
(2) Values,
3) Hospice, and
(4) Medical directives.
LEGAL ISSUES
Let’s examine two legal issues. The first is the issue of brain death. The second is the question of palliative care or continuing treatment options when facing a terminal illness.
The New York State brain death regulations define death as
(1) irreversible cessation of circulatory and respiratory functions; or
(2) irreversible cessation of all functions of the entire brain, including the brain stem.
Each hospital is required to have a written policy regarding determinations of death. One of these policy issues is-
“(3) a procedure for the reasonable accommodation of the individual’s religious or moral objection to the determinationâ€
The regulations do not define what “reasonable accommodation†means. We take the position that irreversible cessation of all functions of the brain is in itself not considered that the person is dead and therefore Religious accommodation means no confirmatory testing for brain dead and no pulling of the plug and providing certain treatments.
In fact, this interpretation was followed until about 2010.
At that time, a patient’s family contacted Chayim Aruchim, because the hospital said the patient was brain dead and they were planning to “pull the plugâ€. When we told the lawyer representing the hospital that there is a clause in the law that talks about reasonable accommodation. The lawyer said,
“Rabbi ! Of course I will provide reasonable accommodation to the family. I understand that you are religious, and I am hereby fulfilling my obligation to you with reasonable accommodation. I am accommodating you for 48 hours and in 48 hours I am going to pull the plug. That is the way I define reasonable accommodationâ€.
In this particular case the hospital ultimately retreated from this extreme position. This hospital, like most others, realized that Chayim Aruchim, an affiliate of Agudath Israel of America, must be treated with respect and taken into account. The hospitals in New York and across the country, welcome religious patients. They are usually insured and it is not good business to reject a population due to their deeply held religious principles.
However, one major hospital did decide to challenge us; we took that particular hospital to court three times. In each case the judge agreed with us that the hospital was not permitted to pull the plug.
Honorable Devin P. Cohen, Justice of the New York State Supreme Court ruled that the patient’s religious right was violated, when the hospital performed brain death testing against the family’s religious objection. The judge further ruled that a reasonable accommodation can only occur by working with the patient or proxy holder.
The New Jersey Statute is far superior to the New York regulations. It flatly prohibits a hospital from declaring a patient “dead†based on brain death when there is reason to believe that such a declaration would violate the personal religious beliefs of the individual.
In several cases, we have recommended that a patient be transferred to care in New Jersey to avoid the risk that a hospital will act against the patient’s religious beliefs and wishes of the family.
One more legal category:
In 2008, New York State passed a bill Bill no. A. 7617 which states:
“ If a patient is diagnosed with a terminal illness or condition, the
patient’s attending health care practitioner shall offer to provide the
patient with information and counseling regarding palliative care “
One of our religious doctors came to our office and asked , Why doesn’t the bill require the physician to offer the patient palliative care and treatment options ?
We brought this to the attention of the Senate, Assembly and the Governor , and in 2011, an amended bill was passed which added the following language:
“If a patient is diagnosed with a terminal illness or condition, the
patient’s attending health care practitioner shall offer to provide the
patient with information and counseling regarding a) palliative care
And (b) information regarding other appropriate treatment options should the patient wish to initiate or continue treatment.â€
VALUES
Let me describe examples of how “values†influence medical decisions-
Patient is an 80 year old woman, and is not eating. One solution is inserting a feeding tube and prolonging her life.
Scenario one- The medical professional will come into the hospital room and tell the family , “I am sure that you don’t want to put a feeding tube and cause her discomfortâ€. Of course, the family will say: “we don’t want to cause mom any pain, we agreeâ€.
Scenario two – The medical professional will come into the hospital room and tell the family:
“I have great news. We can extend your mother’s life by giving her a feeding tube. It will be uncomfortable but eventually we can probably get her off the feeding tube. The discomfort will probably be temporary, and it can extend her life and she will be able to enjoy her grandchildren for hopefully years to comeâ€. Of course, the family will say that sounds great. Go ahead with the procedure.
Here is another example.
Scenario one- A medical professional walks into a hospital room and says to the patient, “Do you want to be in pain? Don’t you want to be comfortable? The patient or the proxy holder says of course, I want to be comfortable. The next thing you know is that this patient’s chart says that the patient and the proxy agreed to “comfort careâ€. Then the patient is put into a private room with a private bathroom and soft music is playing; there is no doctor or nurse in sight. When one of the children of the patient asked a few days later: what is happening, my mom has not been fed for two days- the medical professional explained to the family this is called “comfort care,†you agreed to “comfort careâ€.
Scenario two – A medical professional walks into a hospital room and says to the patient, do you want to die? Should we continue treating you? Do you want to continue living? When the questions are posed in this manner, of course the patient will say, “of course I want to continue livingâ€. This patient’s chart will say that the patient wants to be treated.
Why is the response different in these two scenarios ?
The answer is, the values of the medical professional influence the manner in which the question is asked, and consequently the answers will be dramatically different. Some Rabbis recommend that when dealing with seriously ill patients one should seek a doctor who shares the patient’s values.
HOSPICE
When it is determined by the patient/family, in conjunction with their religious advisor, that hospice care is appropriate and is in accordance with halacha, Chayim Aruchim provides them with guidelines:
- Pain medications – Pain medication will likely be offered/prescribed to relieve a patient’s pain symptoms. Relieving pain is very important. It is important to note, however, that certain pain medications and high dosages could cause respiratory suppression and accelerate death, which is against halacha.As many of you know this year there was a major case in Ohio where a doctor was accused of killing patients by prescribing wildly excessive doses of Fentanyl. According to the Washington Post article, he prescribed 1000 micrograms of Fentanyl for multiple patients. Nevertheless, he was acquitted. The dosage given by this doctor was actually 10 times the recommended dosage.
Therefore, we urge our community that if they do use hospice, the patient’s care must be carefully monitored by a Rabbi who is knowledgeable in medical matters as well to determine what the appropriate dosage is.
- According to Halacha (Jewish Law), nutrition and hydration (food and drink) must be provided to a patient in almost all cases. In reference to medication, any symptoms that might indicate infection or other illnesses should be treated .3. DNR – DNR and DNI orders – When offered Do No Resuscitate (DNR) or Do Not Intubate (DNI) advanced care directives at ANY medical facility, we urge people NOT to sign them UNLESS you have already thoroughly discussed the situation with a knowledgeable Rabbi.
For hospice patients and all seriously ill patients in hospitals, we urge the families to arrange that a knowledgeable family member will be with the patient continually, i.e.at all times throughout the day AND night..
MEDICAL DIRECTIVES
Medical Directive – The Halachic medical directive, is a medical directive which complies with Jewish law; it is very simple. It says the following, “I hereby appoint this person as my health care agent to make any and all health care decisions for me consistent with my wishes as set forth in this directive and that so and so Rabbi be consultedâ€. Simply said, the patient is saying I choose to be treated in accordance with my religious values as defined by my Rabbi.
Recently we have found that nurses, especially palliative care nurses, will go into a patient’s room when there are no family members present, and begin to talk with the patient about whether or not the patient wants to be resuscitated if they have a medical emergency, or if they want to be intubated, or if they just want to be comfortable. The way they present the questions, the medical professionals get the response that they are seeking. Whatever the patient says at that moment is recorded in the record.
The next day the family comes in and asks why was the patient transferred to “comfort care� The hospital staff will point to the chart and say the patient said that he/she wants to be comfortable.
Therefore, the Halachic Medical Directive now includes Paragraph 8, which basically says, “If you are going to have a discussion with me about my health care decisions, that you only do so when my health care agent is present and if possible my Rabbi as well participating in the discussion ideally in person or by phone if necessary.
SUMMARY
To summarize, we believe that we have been very successful in explaining our community position to the medical community. In most cases, the hospital staff initially will try to convince the family to give up. In most cases, once Chayim Aruchim is asked by the family to help, the hospital staff will eventually realize that it is a good idea for the medical staff to provide their service in accordance with our religious values. In a few cases, the institution has gone further and actually embraced Chayim Aruchim and encouraged the physicians to involve Chayim Aruchim early on in order to better serve the patients . In other cases we have found it necessary to send a lawyer’s letter, or to get a Temporary Restraining Order. In one case we’ve had to actually bring a legal action in court against the hospital .
The United States of America, thank G-D, has the most outstanding medical institutions in the world. We are grateful for that. As long as the physicians and the medical staff believe that they can cure the patient, they will do everything possible to cure the patient. However, when it is determined that a patient cannot be cured, but could be treated and that their life will be extended through the treatment, this is where the religious values and the new progressive liberal values collide.
We recognize that we are not going to change people’s values; but what Chayim Aruchim demands is that they recognize and respect those whose values differ and provide the medical care in accordance with the patient’s values. Such care is consistent with the hallowed American principle of self-determination.
I thank you very much for the opportunity to make this presentation to such a distinguished audience. I hope that this conversation will help ensure that healthcare continues to be delivered throughout this glorious nation with cultural sensitivity to all.
I thank you for listening.