New York – Orthodox Groups Weigh In: Patient Autonomy vs. Medical Authority


    File photoNew York – Amid the often loud national debate over health care reform, a little noticed case of a New Jersey man whose family has been locked in a bitter legal fight with a local hospital reflects the concerns of many about who should be authorized to make final decisions about patient care.

    The man, Ruben Betancourt, 73, is no longer alive. But back in March, he lay unconscious in a bed at Trinitas Regional Medical Center in Elizabeth. Admitted for surgery, he suffered oxygen deprivation and, later, renal failure; he was placed on a ventilator and received nutrition through a feeding tube. While physicians admit that he did open and move his eyes, they considered him to be in a “persistent vegetative state” and likely to die soon. They wanted to effect that end themselves, by disconnecting him from life support.

    Mr. Betancourt’s daughter, Jaqueline, however, had other ideas. In line with her deep-seated religious beliefs, she considered her father fully alive, if unable to respond. And she believed that, if he could make his feelings known, he would wish to be assisted in breathing, fed and hydrated.

    The New Jersey Superior Court decided that Ms. Betancourt’s wishes, as surrogate decision-maker for her father, should be honored. The court ruled that, under New Jersey law, the patient and the patient’s family should be the final decision-makers with regard to whether to continue life support treatment or not. The court barred the hospital from removing Mr. Betancourt’s life support.

    The hospital immediately appealed that decision, claiming that doctors alone should have the final right to decide when a patient is meaningfully alive and, if they feel it is indicated, to unilaterally terminate life-sustaining measures.

    Before the higher court could hear the case, Mr. Betancourt died. But the hospital pressed its appeal, claiming that the principles involved in this case needed to be resolved by the courts. Various doctors and hospital associations joined Trinitas, submitting amicus curiae (friend of the court) briefs urging that doctors, not patients, should have the ultimate power to determine whether a compromised life should be supported.

    Among those weighing in on the side of current and future patients and their surrogates this week were Agudath Israel of America and the Rabbinical Council of America. In an amicus curiae brief filed Monday, the Orthodox Jewish organizations laid out the case for patient autonomy.

    The Jewish groups’ brief, written by Agudath Israel associate general counsel Rabbi Mordechai Biser and Agudath Israel summer legal interns Reuven Frankel and Chaim Kuznitz, and, on behalf of the Rabbinical Counsel of America, Rabbi Benjamin Kelsen, cites numerous New Jersey and other cases in which courts ruled that patients and their families have the right to refuse life-sustaining medical care in the face of objections from the patient’s treating physicians. Since patients have the legal right to refuse medical treatment, the brief argues, they have an even greater right to insist on continued treatment, since the state has an interest (as clearly expressed in its constitution and other laws) in the preservation of life. The hospital, the brief argues, is effectively taking the position that a patient should have a right only to choose to die, not to live.

    The brief, which was submitted to the Appellate Division of the Superior Court by New Jersey attorney Larry Loigman, a member of Agudath Israel’s national pro bono legal network with considerable experience in handling such medical-legal cases, states that “the central issue in the case is whether a patient’s right to self-determination should continue to be the guiding principle in New Jersey law when disputes arise between the patient and his or her family and health care facility personnel. The appellant’s position, should it prevail, would overturn the centuries-old principle of individual autonomy and would for the first time in New Jersey, enable a medical provider to terminate life support services for a patient even when that decision would be diametrically counter to the patient’s and his family’s personal, moral, or religious beliefs.”

    The brief points out that the hospital’s position, if adopted, would also violate such fundamental constitutional rights as the right to practice one’s religion and the right to privacy and personal autonomy.

    In fact, the Orthodox organizations note, each of them offers living wills and/or advance care directives to their constituents, in which they have stipulated that, should they become incapacitated, the health care decisions made on their behalf must be in accordance with their religious beliefs. Should the court adopt the hospital’s argument, the brief contends, all “such written living wills and health care proxies would essentially be rendered meaningless.”

    But the underlying assumption behind the hospital’s appeal – that doctors should have the right to end medical care – is the crux of the case – and is a proposition strongly criticized in the Orthodox groups’ brief.

    “The underlying assumption behind appellant’s argument . . . is that the decision to terminate medical care is fundamentally a medical decision.” The brief reads in part: “We challenge and question that basic assumption. While the decision as to which course of medical treatment would best treat a patient’s particular condition is a medical decision, the decision to not provide treatment is, quite simply, not a medical decision. It is an ethical decision, and a doctor does not have any superior ethical wisdom over anyone else when it comes to making such life and death ethical decisions.”
    Says Rabbi Biser: “Graduating from medical school does not confer upon doctors a superior ability to make life and death decisions.”

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    1. Society cannot afford to indulge those whose “religious beliefs” demand we all pay to sustain the physical remains of someone who all agree is clinically dead. We all pay either through direct reimbursement to the hospital for charity care or higher insurance premiums. That money could be much more effectively spent on the needy who cannot afford preventative health care. Until the rabbonim find a printing machine to make dollars we don’t otherwise have, their position is costing lives.

      • This is not a question of the position of today’s rabbonim, it’s Halacha. Alternate side parking is not in effect on Yomim Tovim, and it’s costing the city money (albeit money that they don’t deserve) – should the rabbonim come out and say, “Well, you can move your cars on Yom Tov, and we’ll tell the city to reinstate alternate side, because hey – our ‘position’ is costing the city money!!” Halacha does not change.

    2. I am not going into the halacha aspect of these case

      However in a few cases when a relative went through something like that, their spouses also very ultra-orthodox frum would say to me, when we spoke about their wife or husband, most of the time tell me don’t let me go through that . I do not want to be hooked up to a ventilator and received nutrition through a feeding tube for months on end with no hope of getting better. Please, don’t let them do that to me.

      Maybe they confided to me since I am not longer black hat, and felt I was safe or that I would not lecture them about halacha so they felt safe telling me that.

      As far as the new health care it states clearly the options are to be decided by the patient. Of course the doctor can and hopefully will tell the patient and or family the options and the chances of recovery or at least to remove the ventilator and feeding tube . Sometimes I am sorry to say the doctors might say Zero

    3. This is a good reminder to have a “living will” or an “advance directive” or “health care proxy” (whatever they call it where you live) to designate someone to make health care decisions for you when you cannot and to specify how far you want the medical team to go to keeping you alive. If you have one of these documents, make sure your loved ones know where it is and what it says, and review and update it from time to time.

    4. The irony here is that Judaism does not place a high value on patient autonomy; we are entrusted with our bodies by HaShem and charged to take care of it. We do not have the right to do things to it that are contrary to HaShem’s will.

        • We don’t pasken that way; to the contrary we pasken halachah that (1) it is a chiyuv to return someone’s health to them,and (2) it is asur to stand by and not do that if we can!

      • . . but everything that has become a part of normal procedure (teva), is not contrary to Hashems will, since Hashem acts accordingly.
        thats why one is allowed nowdays to buy Life insurance, and thats why one is allowed (or is obligated..) to take the Dor Yeshorim test..

        and to you who put Halacha aside, you have no right to comment on something like this, its the Halacha, the Torah who is to have the final say.

    5. There is one aspect of the brief that is quoted in the article that may be confusing: A physician has an ethical obligation *not* to provide treatment if he/she believes that the treatment will not help the patient — even if the patient or the patient’s family insists. That of course is very different from taking action that would cause premature death. I hope the full text of the brief affirms this distinction.

    6. Hashem decides when it’s time for us to go by whatever which way. Just yesterday we read Unisaneh Tokef which names various ways of death.
      Even when people are on machines they don’t live forever. Perhaps it may prolong a persons life or maybe it’s only a philosophical thought. Yes, it should be discussed when a person is still able to make their own decisions and not wait till the burden, yes it is a burden when family has to make such serious decision. Our family was in this position several years ago. The person is still alive. But yes it is painful to the family and it comes with guilt of having to have made such decision.
      Whether you are 20,40,60 or 80 sit down with your family and get your affairs in order so that it is easier for the family when time comes.
      Perhaps this government talk will force people ignoring this issue to face reality and take care of it.

    7. For doctors, who have sworn an oath to heal, to disconnect life support machines from a patient who is clearly alive, albeit in a coma, is murder, in civil law and in Jewish law.

      The mere fact that there are posts here sympathizing with would-be murderers is indicative of how much we have been influenced by the sickening values of the outside society.

    8. As FRUM Yiden we cannot say DIE to a person. It is our obligation that as long as there is LIFE – we MUST sustain it. Doctors have already declared people BRAIN DEAD and were completely mistaken. So would you take the RISK and responsibility??? The job to play G-D does not belong to the family and surely not to a Dr. who may have other motivations. As long as there is LIFE – there is HOPE!

      • You are absolutely right. It is not our life to decide when to end it. It came from Hashem and when Hashem decides the time is up – then it’s over…not a minute sooner. We know nothing of Hashem’s “chesbonos” when and for what reason the time should be up. As long as there is life – we are not allowed to end it. That would be the equivalent of killing someone chas v’sholom.

    9. When physicians take the “Hippocratic Oath”they are swearing by al the gods of the Greek pantheon. What is the halachic position on that?
      I would be interested to know the halacha for refusing to be hooked up in the first place. My physician Mom always said to refuse “extraordinary” measures for prolonging life. She meant, do not let them hook you up to anything artificial in the first place because then you can’t unhook. She felt that part would be tantamount to murder but letting someone go “naturally” was acceptable. This would be my wish. We can’t know the will of Hashem but, while Mom died of cancer she absolutely did not suffer. This was in the bad, old days of very little chemo. I can only think that she merited a merciful passing because of her stand on various ethical questions in medicine. Although she was far from frum in everyday observance, philosophically she was absolutely so. I know, I know. Please no lectures. I’m trying to work this out for my own life.


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