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Medical Accountability and the Patient / Physician Relationship

When called to the Torah, two blessings are recited. In the second, we bless Hashem for “giving us a true Torah; and the life of the world you planted in our midst.” The Bet Yosef (Shulchan Aruch, Orach Chaim, 139:10) explains the “True Torah refers to the Torah shebichtav (the written law) and the life of the world refers to the Torah sheba’alpeh (the oral law).”

The Rambam (Laws of Shabbat 2:3) comments that “it is prohibited to delay desecrating the Shabbat in   a life threatening situation, for it is written (Vayikra, 18:5) ‘the mitzvot that a person is obligated to fulfill (are that) he live by them and not die (because) of them.’ From this we learn that the laws of the Torah are not vengeance in this world, but instead are compassion, loving kindness and peace. And those apikorsim (Saducies, Karaites who do not believe in the Divinity of the oral law) and who rule that it is indeed a desecration of the Shabbat (to save another’s life) for it is prohibited for them to do so (thus leaving the person to die), concerning this the prophet (Yechezkiel 20:25) exclaims (that by not following the Torah) ‘And I have given them laws that are not beneficial and statutes that one cannot live according to them.’

We can understand from this Rambam that it is the oral law that teaches us that the Torah is a living Torah, whose purpose is compassion, loving kindness and peace. This offers insight into the above Bet Yosef that the life of the world is the oral law. It is the oral law that demonstrates that our Holy Torah is a Torah of life. With the written law alone, we could not survive.

The Rambam (ibid 2:1) states “Shabbat is compromised in a life threatening situation as are other mitzvot. Hence with respect to a sick person whose life is in danger, we care for all his needs on Shabbat in accordance with the instructions of an expert local physician.”

A halachic question was once posed by an Israeli married woman who was diagnosed as suffering from a benign uterine tumor. Subsequently the tumor was successfully removed. The accepted Israeli protocol at that time (which was based on a previous American protocol) called for a woman to wait a year before becoming pregnant in order to assure that the tumor not return.  InAmericathe protocol limited the time to only six months.

The couple not having been blessed with children was extremely interested in bringing a child into the world as soon as possible and fulfilling the mitzvah of pru urvu. The question that arose was which protocol should be implemented, the Israeli or American.  Based upon the above Rambam, it would seem that the couple would be obligated to put off having the child by a year according to the Israeli protocol and not six months.

The Gemara in Baba Kama (85a) relates to the monetary obligations of one who injures his fellow. Among the obligations is rapo yerape, the requirement to provide for medical expenses incurred as a result of the injury (Shmot 21:19). The Gemara states that “if the perpetrator is a physician and declares to the victim (why should I pay your medical expenses), I will treat you myself, the victim can reply, you are in my eyes as a lion waiting in ambush (as if to say I do not trust you).”    Commenting on this, the Rosh (8:1) says, “it is imperative that a physician enjoys the nachat ruach (confidence and trust) of his patient.” ((A medical center in Bnei Brak was searching for a new director of internal medicine and was at the stage of choosing between two candidates.  One was a superb physician but possessing of underwhelming bedside manners. The second was less experienced but had wonderful bedside manners. Not being able to arrive at a final decision, Harav Elyashiv, shlita, was approached for his opinion.  He narrated a story that took place in the city ofBrisk,Poland. The main shul was looking for a new chazzan. The requirements for a communal chazzan are articulated in the Shulchan Aruch (Orach Chaim 53:4 & 579:1) as:  “one experienced in prayer and is fluent in Tannach, has small children and does not make a living (hence will pray with a full heart, Mishnah Berurah 579:11). He is possessed of a fine reputation, is modest, is accepted by the community and has a sweet voice.” Two candidates were vying for the position, one fulfilled the entire set of requirement but one – his voice was lacking. The other lacked some of the requirements but had a lovely voice. Who should be chosen? This quandary was placed before Harav Yosef Dov Soleveitchick z”l, the Rav of Brisk. He replied that the core requirement of a chazzan is his good voice the other issues representing peripheral assets, consequently he advised hiring the man with the superior voice. (Cf. the Ramah to Orach Chaim 53:5.)  Similarly Harav Elyashiv, shlita, opined that the essence of a physician is his expertise, bedside manners are assets and therefore advised employing the more experienced physician.))

The Gemara in Baba Kama continues “What if the perpetrator says that I have a friend who will treat you at no cost, the injured party can reply that a physician that treats for free is of no value, i.e., he will not do his best to cure me.” The Rosh (ibid) remarks “When the doctor receives no payment, his heart and mind are not focused directly on the needs of the patient since he expects no payment. ((In parallel fashion the Shulchan Aruch (Orach Chaim 53:22) rules that a chazzan who is remunerated is preferred to one who volunteers his services.))

“(If the perpetrator can respond) I will bring a physician (who charges less) from a distant land. The victim can then respond that a foreign doctor has blind eyes.” Rashi (ibid) explains that blind eyes signify that “he will leave this location, go on his path and is not concerned if he blinds my (the patient’s) eye.” The Rosh (ibid) adds that a local physician is more cautious medically in that he is sensitive to retaining his reputation as an expert. The foreign doctor’s practice and clientele are distant. If he is negligent here, his prestige and reputation will not be compromised there. Consequently the possibility exists that he will not fully apply himself giving the victim cause to reject his treatment.”

A story is told concerning a psak of Harav Moshe Feinstein, z”l, from the 1960s. A woman with a serious heart ailment was being treated by a senior cardiologist. He informed her that the symptoms indicted the necessity of open heart surgery and that he and his team could perform it either at NYU, a private hospital, or atBellevue, a free public hospital. It was her decision. The woman informed her husband that she preferred NYU; he agreed but raised the obstacle of funding the expensive procedure there.  At approaching the officer of a local tzedakah fund, they were told that there was no justification for allocating charity funds when the option of performing the surgery gratis by the same surgical team was available. The couple decided to ask Harav Moshe Feinstein, z”l, for his psak concerning the use of charity monies. Upon hearing the case and investigating the facts, he found out that if the surgery was performed in NYU, its results, even negative, would be recorded, publically known and resulting in physician accountability. However if it was carried out inBellevue(at that time), no permanent record would be established thus any surgical failure would not be recorded. Given this lack of professional accountability inBellevue, Harav Feinstein, on the basis of the above Gemara in Baba Kama, ruled the use of public tzedakah was totally justified.

In another incident, the Chazon Ish (Harav A. Y. Karelitz, z”l) was consulted by a man in Israelfor whom a complicated surgical procedure was indicated. He had previously contacted a surgeon in the ColumbiaMedicalCenterin New Yorkand a date had been scheduled. In the meantime this surgeon was invited to Israelto train Israeli surgeons in certain surgical techniques. Upon arrival in Israelthe surgeon contacted the above patient and expressed his willingness to perform the scheduled surgery in Israelthus saving the patient considerable travel, housing and American hospital expenses. The patient asked the Chazon Ish if the surgery could be done in Israel. After expressing his opinion that the surgery be done in New York ((This author understands that the Chazon Ish based his decision on the Gemara in Baba Kama, viz., that a foreign physician has attenuated accountability.)) , the surgeon himself approached the Chazon Ish and inquired concerning the justification of his decision.  In reply the Chazon Ish pointed out that although the surgeon was indeed present inIsrael his practiced surgical team was not. And a procedure of this complexity demanded the combined, cumulative experience of the team. The surgeon agreed.  Subsequently on the scheduled date inNew York the patient was operated on and during the operation a life threatening complication arose which required certain specialized equipment. If carried out inIsrael in the absence of said equipment and experienced team members the patient would likely have died.

In a case of a child suffering from severe hydrocephaly, Harav Elyashiv, shlita, was asked if cosmetic surgery could be done in order to improve the appearance of the child. The hydrocephaly had so distorted his head as to look like a human aberration. The intervention held considerable risk but was urgent in order to ensure that  the mother be willing to care for her child; as she was  repulsed by his appearance. Rav Elyashiv permitted the surgery but added that a surgeon be chosen,  who strongly believed in the sanctity of life and who would relate to the child as if he were totally normal. The Rav’s apprehension was that another surgeon might not feel this to be his duty, for he may believe that this child’s life was futile and better off dead and might thus not perform at his professional best.

This Gemara in Baba Kama which stresses a physician’s accountability and personal prestige among his peers as a variable   impacting directly on his objectivity and professional endeavors is in fact the source of the above Rambam. Hence for a valid medical decision to be articulated, not only need the attending physician be a rofeh uman (experienced physician), but he must also be local.

Returning for a moment to our Israeli married woman who was diagnosed as suffering from a benign uterine tumor which was subsequently excised, must the couple indeed be dictated by the Israeli protocol of waiting a year before having a child, or can they adopt the considerably shorter American protocol? This author would like to suggest that the inherent weakness of a non-local doctor’s diagnosis and treatment is due to his expressing a medical opinion for patients who are not his usual clientele. Certainly for an American couple the protocol would be appropriate. The research and its application were carried out and formulated by American scientists and physicians for an American population and should certainly be seen as reliable and valid.  Additionally there seems no cogent reason to claim that the different climate or other conditions inIsraelshould influence in any way the recurrence of the neoplasm that would counter indicate the application of the American protocol inIsrael. Thus the Rambam’s limitation of employing only a local physician would not be relevant in this case.  Consequently after waiting for six months, the couple may live together naturally.


Situations in which no added authority is accrued to a local doctor

     The Tiferet Yisroel (Yuma8:5:28) discusses the parameters of heeding a physician’s advice regarding fasting on Yom Kippur. He opines that if a physician declares that a person must eat, then his advice must be followed.  However if we observe that a secular physician invariably instructs people to eat on Yom Kippur declaring that fasting is dangerous for them, even for seemingly non-serious medical situations, then we suspect him of harboring the incorrect hashkafah (religious view) that Yom Kippur holds little value. In this situation we should seek the advice of a more suitable medical source.

At the polar extreme of this instance is a case of a patient suffering a kidney ailment who asked his Jewish nephrologist if he could fast on Yom Kippur. To his great surprise the physician said that he could indeed fast. Subsequently the patient related the exciting news to his local Rabbi that this year he could fast. The Rabbi being acquainted with his congregant’s medical condition found this medical opinion to be odd. He immediately contacted the nephrologist and queried if indeed he had allowed the person to fast and was answered in the affirmative. The Rabbi then inquired concerning the doctor’s definition of fasting, to which he replied that fasting involved not eating, but that drinking was surely allowed. The Rabbi then informed his congregant that he would be drinking on Yom Kippur.

Sorrowfully because of ignorance or incorrect hashkafah on cannot always rely upon the medical judgment of a local doctor.  One hears from medical professionals that treating an elderly, demented patient or someone in a persistent vegetative state (PVS) or someone suffering from a terminal illness that any intervention is futile. This position may be abhorrent to the Torah based Jewish attitude that life has sanctity which extends beyond its quality. The doctors’ position may be based upon his personal  outlook on life.

It is thus of major importance for Rabbis and families to be alert and sensitive to medical decisions that deprive the patient of care. Such decisions may not be rooted in science and medicine or a Torah based understanding of the sanctity of life, but instead on the unacceptable, personal ethics of the attending physician.

May we all be blessed with health, happiness and nachat.   Amen

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