Proposed Emergency/ICU Triage Protocol based on Jewish Values

May 1, 2020

By Rabbi Jason Weiner, Cedars-Sinai

During the Covid-19 pandemic, many healthcare systems worried that they would face very severe shortages which would have a significant impact on clinical decision making for physicians, patients and families. Shortages of ICU beds and ventilators created very real concerns about how to properly ration them, which led to wrenching life-and death-decisions.

Judaism provides detailed guidance for all areas of life, including times of crisis. This rich tradition is especially important in considering unique approaches that may become necessary during challenging times. Jewish teachings reflect ancient, wise values that have long shed light on issues of life and death and can thus provide practical guidelines for making the most difficult of decisions in times such as these.

Hospitals develop triage policies to guide decisions in situations of scarce medical resources. The process of creating such policies involves a bioethics committee and approval by medical staff leadership, followed by implementation by an allocation review committee and specific critical care allocation teams in each case that arises.[1] When all clinical determination metrics are equal, many of the tie-breaking triage decisions become value based, at which point spiritual leaders can often provide significant input to policy development. Furthermore, for religious patients who would like treatment decisions to be made based on their values as much as possible, spiritual care providers can be influential in guiding the implementation of religiously sensitive medical decision-making. It is therefore beneficial to examine some of the key values that arise in this context, which are summarized below:

Summary of Some Jewish Emergency Triage Values

  1. Triage as much as possible to try to avoid the need to withdraw any treatments.
    1. The goal is always to save as many people as possible.
    2. Prioritize patients most likely to benefit and have overall better chances of survival.
    3. Prioritize patients with potential to live a full lifespan over one who is terminal.
    4. Base decisions only on the clinically relevant health of the patient, not their age.
  2. If a patient will likely not survive and other patients need their room/ventilator/staff or other resources, it is preferable to withhold further interventions from that patient in order to allow them to die naturally, rather than by withdrawing any interventions.
  3. If there is no other choice and it seems clear that a patient currently on a respirator will die soon in any case, withdrawal of a respirator can only be considered on a case-by-case basis, in consultation with a posek (senior rabbinic authority in Jewish law).

Detailed Discussion

Below is a more detailed discussion of each point listed above, intended to more explicitly articulate and clarify the underlying values that provide the foundation for the above framework. The primary goal is to: a) save as many people as possible, and b) do so by prioritizing according to clear and transparent principles based in classical Jewish sources and the works of contemporary rabbinic scholars.

  1. Saving the Many 

A fundamental principle of triage in Jewish law is that priority must be given to saving as many people as possible.[2] For this reason, rabbinic authorities encourage an approach to triage that bypasses treating those who are too sick to benefit from, or too well to absolutely need treatment. Their reasoning is that since treating these patients requires more time and resources, many others will die waiting. Treating the more moderately ill should be the focus of efforts, since that generally takes less time and uses fewer intensive resources, thus enabling treatment of more people (hatzalat rabim).[3]

  1. Priorities

When making decisions about allocating scarce resources such as ventilators and dialysis machines, before considering withdrawing any interventions it is preferable to triage as effectively as possible. It is not always required to intubate (put on a respirator) a dying patient who is suffering,[4] particularly in triage situations when other patients may be able to benefit more from the limited respirators available, even if those other patients are not yet present in the hospital, but are expected.[5] Some of the following relevant priorities are detailed in Jewish law:

  • Preference to withhold rather than withdraw: If the ventilator, dialysis machine or other mechanical life-sustaining device of a patient who is completely dependent on it will be needed eventually by another patient, it is preferable to allow the former to die naturally through passive means, such as not refilling IV medication bags or not increasing ventilator settings, rather than by terminal extubation.[6] This may sometimes include allowing patients with very low chances of survival to be given Do Not Resuscitate status, which will make their ventilator available after the patient dies naturally.[7] The reason for this preference is due not only to religious perspectives that differentiate between the morality of withholding versus withdrawing life sustaining treatments, but also as an attempt to mitigate some of the anguish that clinicians often experience when asked to withdraw ventilators for reasons other than the welfare of the patient.[8]
  • Situations in which treatment was already initiated: Although, as noted above, terminal extubation may sometimes be permitted in order to save another patient’s life, ideally a patient who is already intubated or being treated, even if not likely to survive, acquires a certain right to continued treatment.  It follows that whenever possible, treatment should not be removed from one patient in order to treat another.[9] However, a patient who is terminal or has a very low likelihood of recovery may be moved out of the emergency room or intensive care unit in order to make room for a patient who is more likely to benefit more from that higher level of treatment, provided that nothing is done to actively shorten that patient’s life.[10]
  • Chances and certainty: The key principle of triage decisions is the likelihood of success of treatment, determined by prioritizing treating the patients with the greatest chances of survival.[11] Additionally, in Jewish law, a definite danger takes precedence over an uncertain danger.[12] Therefore, in a situation in which one patient can certainly or likely be saved and the outcome for the other patient is uncertain, priority must be given to the person who has better chances of being saved.[13]
  • Potential for full life: Similarly, when there are two patients waiting for a ventilator but only one machine is available, if one patient has the potential to live a full lifespan after being placed on the ventilator and the other is terminal,[14] one should prioritize the patient who is more likely to live a full lifespan.[15]
  • Although great care should be taken to treat all human beings equally,[16] with no priority based on socioeconomic status, race, gender etc.,[17] an individual who is desperately needed by the masses, such as medical[18] or communal leaders, may sometimes gain priority if absolutely necessary, when all other factors are equal.[19]
  • If there is a choice of which patient to extubate, it is ideal not to extubate someone who will die immediately[20] and instead choose someone who may be able to breathe on their own for some time after they are extubated.[21]

Under normal circumstances, terminal extubation (removing a patient from a ventilator that is sustaining their life) is forbidden by most rabbinic authorities.[22] However, there is a minority opinion based on the Rema’s ruling (YD 339:1) that one may actively remove an external impediment to death of a patient who is already almost certainly in the process of dying imminently (gosses).[23] Some rule that a ventilator can be categorized as an artificial impediment to dying, since it mechanically prevents the soul from departing. Thus, it is not only permitted to remove a ventilator from a dying patient, but it may even be required to do so to relieve suffering.[24] Since there are conflicting opinions on this matter, and some argue that deactivating a ventilator falls under the severe prohibition of murder, many conclude that we must be strict and forbid deactivation of a ventilator at the end of life.[25] However, in a difficult situation in which there is a severe shortage of ventilators, and the purpose of removing one patient from a ventilator is to save another patient’s life, there may be a stronger basis to permit doing so, particularly in some cases of dying patients who have no chance of recovery.[26]

This approach can reduce suffering[27] and enable the saving of many lives.[28] Although saving one or even many lives does not override active killing in Jewish law,[29] this “hatzalat rabim” perspective favors the position that terminal extubation is not always viewed as killing but may be seen as allowing to die or failing to save, which can be permitted for a dying patient (see footnote 24). However, terminal extubation should only be performed on a case-by-case basis after careful review and determination that there is no other option, such as those detailed above.

Conclusion

This document is not meant to imply that Jewish patients should be treated differently from others, but it is intended to serve as a guide to decision-making based on Jewish values. In an emergency situation, such as the COVID-19 pandemic, front line medical professionals must make urgent choices. Rabbis cannot be present for every such decision, nor is there time to deliberate whether rabbis support each decision. Accordingly, it would be prudent for rabbinic authorities to take part in setting up triage decision-making processes in order to ensure that the most appropriate approach is considered, whenever possible.

Some healthcare providers might find some of these rulings to be arbitrary or impractical, but they are based on profound wisdom and tradition. These excruciating decisions can induce severe moral distress. The more that we can do to help people make them in accordance with their religious teachings and wisdom, the more we can prevent some of the moral distress associated with this crisis and maintain our own ethical integrity and our relationships with God. And of course, when engaging in such difficult dilemmas, it becomes especially important to care for the emotional and spiritual well-being of medical professionals, patients, and their families so that patients can survive not only physically, but also so that they and their caregivers may survive as “whole” as possible.

 

 

 

[1] See, for example, the California state guidelines: https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/California%20SARS-CoV-2%20Crisis%20Care%20Guidelines%20-June%208%202020.pdf?eType=EmailBlastContent&eId=b2a40a32-36f8-47d5-b0f3-4412e7c47e12

[2] R. Zilberstein, Shiurei Torah Le-Rofim 3:161, pp. 67–68. Indeed, some have argued that in cases in which there are many patients in need, all arriving simultaneously, and there are insufficient resources to treat all of them at that time, this approach of prioritizing the moderately injured (ignoring the severe and minor injuries) so that the greatest number of lives can be saved, is the ideal approach ethically and halakhically (A. Steinberg, Ha-Refuah Ke-Halakhah 5, 82). However, in using this approach, the medical professionals must be careful to frequently reevaluate the patients who are awaiting treatment since their conditions may change, as may the staff availabilities.

[3] Teshuvot Minchat Asher 1:115, 2:126; Shiurei Torah Le-Rofim 3:161, pp. 66–7, 73. R. Zilberstein has approved of healthcare professionals abandoning a patient who is not certainly salvageable, even if they have already begun treating him or her, in order to save many who are certainly salvageable. since abandoning one patient need not be seen as an act of murder, but as an act of saving life. However, this must be a situation in which the medic is simply allowing the patient to die in order to save the many, but not actually performing an action that causes the patient’s death.  However, if a medic did so, it would not be classified as murder, since it is done in the context of lifesaving (69–70).

[4] Nishmat Avraham, YD 339:(4) (502–6 in 3rd ed.).

[5] Minchat Asher – Leket Shiurim UTeshuvot Iggerot UMaamarim HaNog’im LeMagefat HaKorona, 2nd ed. (Jerusalem, 2020), 4. See also discussion in footnote 15 below.

[6] Some authorities rule that vasopressor medications (“pressers” for maintaining blood pressure), such as dopamine, may be withheld from a dying patient who is suffering (but not actively withdrawn, especially if it may lead to an immediate drop in blood pressure and death), by simply refraining from restarting the treatment once the infusion pouch has emptied on its own, because this can be considered a medical therapy and not a basic need, such as nutrition or oxygen (Prof. Avraham Steinberg in the name of R. Auerbach and R. Wosner, Assia 63–64 [5729], 18–19; “The Halachic Basis of the Dying Patient Law,” Assia 6[2] [2008], 30–40, reprinted in Jewish Medical Ethics, vol. 3, 419). Similarly, R. Moshe Feinstein has been quoted as ruling that a dying patient who is on a respirator does not need to be given medications to extend his life (R. Aaron Felder, Rishumei Aharon, vol. 1, 70).

[7] Responsa of R. Hershel Schachter. Additional concerns related to COVID include the danger that resuscitative efforts cause to medical staff, as well as the utilization of very scarce resources, including staff time and protective equipment.

[8] Truog, et al., “The Toughest Triage — Allocating Ventilators in a Pandemic,” New England Journal of Medicine, 382 (May, 2020), 1973-1975. https://www.nejm.org/doi/full/10.1056/NEJMp2005689

[9] Iggerot Moshe, CM 2:73(2); A. Steinberg, Ha-Refuah Ke-Halakhah 5, 84. Nishmat Avraham, YD 252 (319), quoting R. Shlomo Zalman Auerbach and R. Asher Weiss (Teshuvot Minchat Asher 1:115[4]) argue that this is not because one has been granted a right to the continued treatment, but rather because of the Talmudic ethical principle that we may never sacrifice one life for another, “ein dochin nefesh mipnei nefesh.” Similarly, R. Zilberstein (Shiurei Torah Le-Rofim 3:161, pp. 67, 102) argues that a medic who is working on one patient cannot leave that patient for the sake of another, because of the principle that one currently involved in performing a mitzvah may not leave it in order to perform another mitzvah, “osek bemitzvah patur min hamitzvah.” This remains true even when the second mitzvah opportunity involves a bigger mitzvah (mitzvah chamurah) and one is currently engaged only in a smaller mitzvah (mitzvah kallah), unless one can do more mitzvot  (i.e., save many lives) by abandoning the first patient. In the latter case, one patient can be left behind to save the many (ibid., 73). However, as stated above, one may not do anything to cause the patient that is being abandoned to die, unless saving the other is more certain (ibid.). However, R. Z.N. Goldberg has ruled that the principle that one currently involved in performing a mitzvah may not leave that mitzvah in order to perform another mitzvah (“osek bemitzvah patur min hamitzvah”) should not be applied to this case, and that one should indeed abandon the terminal patient in favor of one who arrives later but can potentially live a full lifespan, unless halting interventions for the terminal patient will cause immediate death (“Hafsakat Tipul BeGosses Leshem Hatzalat Choleh Acher,”  Techumin 36, 209–13; A. Steinberg, Ha-Refuah Ke-Halakhah 5, 84-5).

[10] Teshuvot Minchat Asher 1:115(4).

[11] Minchat Asher – Leket Shiurim UTeshuvot Iggerot UMaamarim HaNog’im LeMagefat HaKorona, 2nd ed., 4.

[12] Nishmat Avraham, YD 252 (319 in 3rd ed.), based on Pri Megadim 328:47(1); Tzitz Eliezer 9:17 (10:5) and 28:3.

[13] Iggerot Moshe, CM 2:73(2); Minchat Shlomo 2:86(2); Shevet HaLevi 10:167; Kovetz Teshuvot 3:159; Teshuvot Minchat Asher 2:126. R. Zilberstein, Shiurei Torah Le-Rofim 3:161, p. 67, bases this on Mishnah Berurah 334:68, who rules that if two people are in a burning house, one healthy and the other in life-threatening danger, and both cannot be saved, one should save the healthy person first, since the other one is not certainly salvageable.

[14] Many rabbinic authorities rule that anyone who will not survive for more than twelve months is considered “terminal” (Nishmat Avraham, YD 155 (84–85 in 3rd ed.), whereas others argue that six months is a more precise definition of “terminal,” (Minchat Asher 1:115(2)).

[15] Iggerot Moshe, CM 2:73(2) and 75(2); Teshuvot Minchat Asher 2:126. Age should not be a factor. As long as a person is alive and well, they should be treated equally regardless of whether one is very elderly or very young, and one who can live longer than a year takes precedence, regardless of how much longer than a year one can live (Iggerot Moshe, CM 2:75[2, 7]). Nor may ability to pay be a factor (Teshuvot Minchat Asher 2:126).

If a terminal patient is currently in need of limited medical resources, but there is a strong likelihood that a patient who can still live a full lifespan may arrive in need of this treatment at any time, many leading authorities argue that one who has a chance for a full lifespan still takes priority over the one who is terminal. The hospital thus has the right to designate its devices only for such patients who may arrive, even though the patient who can live a full lifespan is not actually present at the time (Teshuvot Ve-Hanhagot 1:858; Tzitz Eliezer 17:72; Minchat Shlomo, Tinyana 2–3:86:1; Ha-Refuah Ke-Halakhah 5, 85-6). On the other hand, some argue that since we currently have no obligation to save anyone else who is in our presence, we should give preference to the terminal patient who is present and in immediate need, even if the goal is simply to relieve suffering and not save a life, unless perhaps if the patient with the better likelihood of survival is already en route to the hospital (Shevet HaLevi 6:242; Shiurei Torah Le-Rofim 3:164, pp. 93, 96, 103–4).

Teshuvot Ve-Hanhagot 1:858 writes that since extubation is categorized as killing, one cannot remove from a ventilator a patient who can live only chayei sha’ah for the sake of one who can live chayei olam.

[16] The ranking of priorities detailed in the mishnah in Horayot (13a) is not generally followed today (Iggerot Moshe, CM 2:75[7]; Masorat Moshe, vol. 1, 489; Minchat Shlomo 2:86[1]; A. Steinberg, Ha-Refuah Ke-Halakhah 5, 80, 88). This is because we do not always know how to properly make these determinations, nor do we know which patient has more merits or proper lineage (see Tzitz Eliezer 18:1 and 69[1]), or because those priorities don’t apply when people have paid for healthcare services (Shiurei Torah Le-Rofim 6:401, pg. 333-6).

[17] For example, R. Zilberstein rules that all people should be treated equally, based only on clinically relevant information and triage protocols, even a terrorist whose action caused the triage situation (Shiurei Torah Le-Rofim 6:425, pg. 416).

[18] For example, the triage protocols adopted by the Israeli Ministry of Health in May 2020 during the COVID-19 pandemic stated that, “Health care professionals, even if infected while treating COVID-19 patients, will not be given priority unless it is necessary to overcome staff shortages, either by facilitating return to work after their recovery or as an incentive to volunteering. When there is medical equality between two patients, health care professionals will receive priority.” (https://www.health.gov.il/PublicationsFiles/position-paper-230520.pdf) Support for an approach which gives priority to healthcare professionals and those who can save others can be found in the Talmud (Horayot 13a), which states that when saving a life, precedence should be given to a Kohen who is anointed for battle over another Kohen, since the masses are dependent on him (see Rashi there, s.v. lehachayoto).

[19] Shiurei Torah Le-Rofim 3:161, pp. 66–7, 73 & 6:425(4), pp. 421 & 6:429, pp. 433. R. Zilberstein compares this to the option to save one boat when two are sinking, in which case the boat with more passengers on board should be saved. R. Zilberstein (ibid., and p. 52) also argues that an individual who is needed by the community can be compared to “many” and may thus take precedence over another individual in some cases (See also A. Steinberg, Ha-Refuah Ke-Halakhah 5, 90). However, in a public teleconference on this topic hosted by Agudas Yisroel on 4/6/20, Rav Asher Weiss expressed disagreement with this priority because it is too difficult to accurately determine who is more important to the community.

[20] R. Z.N. Goldberg, in a citation in footnote 24, points out that if a patient was to die immediately upon extubation, that cannot be seen merely as “allowing to die,” but as causing to die.

[21] Lev Avraham 32:9 reports that R. Shlomo Zalman Auerbach ruled that the patient must be able to survive for at least 48 hours, whereas according to Prof. Steinberg (personal communication and Encyclopedia Hilkhatit Refu’it, vol. 5, 145), also in the name of R. Auerbach, there is no set time period; even a few hours can be enough to determine if the patient was clinically stable enough for withdrawal. (R. Asher Weiss, in a personal communication, concurred with this second approach). Furthermore, even according to some authorities who do not accept brain death as the halakhic definition of death, if the patient is brain dead, the ventilator may be viewed as an impediment that may be removed. For example, R. Ovadia Yosef ruled that a ventilator may be turned off for a brain-dead patient if the family members consent, as long as it can be done without moving the body of the patient (Shulchan Yosef 193). R. Shlomo Zalman Auerbach also seems to permit extubation once a patient is brain dead, because he assumes that a brain dead patient with no spontaneous respiration can be considered a gosses (Minchat Shlomo, Tinyana 2–3:86; Assia 5754 (53–54), 5–16, #6–8). This ruling is also recorded in Nishmat Avraham, YD 339 (550–1 in 3rd ed.), where R. Auerbach adds that this is not permitted for the sake of organ donation until the patient’s heart stops and doctors have waited at least 30 seconds.

[22] Tzitz Eliezer 17:72(13); Iggerot Moshe, YD 3:132.

[23] The Rema prohibits removing a pillow or cushion from under a dying patient, because it is said that the feathers of certain fowl cause a prolongation of dying, but he permits removing salt from the patient’s tongue that is preventing their soul from leaving them. Some explain that the problem with moving the feathers is that it would involve significant moving of the dying patient (unlike the minor touch involved with removing salt from the tongue), and these movements could lead to the frail patient’s death (Taz, YD 339:2; Shakh, YD 339:7).

[24] R. Zalman Nechemia Goldberg permits actively removing a ventilator from a suffering terminal patient if their death is preferable to life (or for one who has no purpose left in their life because of complete lack of comprehension), but only if it does not directly cause the patient to die right away, in which case removing a ventilator would not be seen simply as removing an impediment, but rather a forbidden act of killing the patient. R. Goldberg bases his opinion on the claim that the person is dying of their own underlying illness, and we are not obligated in “do not stand idly by” in the case of a gosses unless one benefits more from continued life than death. R. Goldberg argues that a person in excruciating pain may have no will to live on, and while the prohibition against murder would be violated by an “indirect cause” (grama), simply removing an object that can save a person, such that the patient does not die as a result of one’s action but because of his or her own underlying illness, is not considered even an “indirect cause.” It is thus not forbidden for a suffering dying patient who would prefer death to life (Moriah 4–5:88–9, [Elul 5738], 48–56).  Similarly, R. Chaim David HaLevi, (Techumin 2 (5741), 304; Aseh Lekha Rav 5:29–30) argues that removing a ventilator parallels the Rema’s permission to remove salt from a dying patient’s tongue. The salt is also put on the tongue with the hope of prolonging life (according to Beit Lechem Yehudah), but now that the patient is in the dying process and the salt is only prolonging their suffering, it is an impediment that may be removed to allow the soul to depart (as the experience of the soul trying to leave the body is considered spiritually painful), since there is no prohibition of “do not stand idly by” for a person who is already a gosses.

For other similar rulings, see R. Menashe Klein (Mishneh Halakhot 7:287); R. Baruch Rabinowitz, “Symposium on Establishing the Moment of Death and Organ Donation,” Assia 1 (5736), 197–8; R. Shlomo Goren (Me’orot 2 [5740], 28); R. Pinchas Toledano (Barkai 4 [5747], 53–59).

On the pain caused to a dying patient’s soul by prolonging their life, see Iggerot Moshe, YD2:174 & CHM 2:74.

[25] Be-Mareh Ha-Bazak 8:39, n. 35; R. Moshe Hershler, “Chiyuv Hatzalah Be-Cholim U-Mesukanim,” in Halakhah U-Refuah, vol. 2, 33. See also Nishmat Avraham, YD 339(2) (552 in 3rd ed.).

[26] R. Shlomo Zalman Auerbach seems to support an approach similar to his son-n-law, R. Z.N. Goldberg, (quoted in note 24 above), in a triage situation. R. Auerbach writes that, “Regarding a ventilator, it depends on the medical considerations, and if in most cases the ventilator would no longer serve a purpose, it is better to remove it so it can be used by another” (quoted in full in Assia 59-60, vol. 15, 3-4, Iyar 5757; see also Steinberg, Ha-Refuah Ke-Halakhah 6, 359, fn. 16). Similarly, in a public teleconference on this topic hosted by Agudas Yisroel on 4/6/20 (https://player.vimeo.com/video/404795764), Rav Asher Weiss stated that a patient who is already on a respirator may never be extubated for the sake of another patient, even if the other patient has better chances of survival, but “sometimes people are on ventilators and we know that there is no chance of a recovery. It’s just keeping them breathing, or not really breathing but pumping air into their lungs until HKBH will decide ultimately to take them home. Some of these people by medical definition might be brain dead, but we do not accept the determination of brain death; therefore we keep them on ventilators. So in that case if there is a patient before us and we could save his life, then that needs a special sheilas chochom” He cautioned that this ruling is not definitive, but a rabbi should be asked and it can be dealt with on a case-by-case basis. On the other hand, many rabbinic authorities never permit terminal extubation. For example, R. Hershel Schachter wrote a responsum during the COVID-19 pandemic that even during such an emergency situation, one may never remove a patient from a respirator if they will die as a result, because doing so would be considered murder (see: https://7d4ab068-0603-408d-89df-fac4580e17c4.filesusr.com/ugd/8b9b1c_c43ae9f486e34ee88578fc8004107114.pdf ).

[27] A key principle of Jewish medical ethics is that while we try to prolong life, and never do anything to hasten a patient’s death, we also do not want to prolong a life of pain and suffering (Iggerot Moshe, CM 2:73[1]). This approach may allow patients in the dying process to die comfortably. rather than have their death prolonged.

[28] In addition to making ventilators available for patients who need them, this approach may also encourage giving very sick patients a chance to live who would otherwise not have been intubated in the first place, out of fear that they would become vent dependent and that no rabbi would permit extubation. Rabbis sometimes discourage intubation for patients with a very low likelihood of recovery so that the patient doesn’t become stuck on the ventilator indefinitely, thus severely prolonging their pain and dying process. However, if a rabbi or doctor knows that a patient can be extubated if the ventilator is not effective for them, then perhaps there is more likelihood that they would be willing to give them a chance to try, and sometimes it may be effective and save the patient’s life.

[29] Rema YD 157:1. On the other hand, the Talmud Yerushalmi (Terumot 8:12) suggests that someone who deserves to die, like Sheva ben Bikhri, may be handed over in order to save the masses (Rambam, Yesodei Hatorah 5:5).