Proposed Emergency/ICU Triage Protocol based on Jewish Values

May 1, 2020

By Rabbi Jason Weiner, Cedars-Sinai

Just as Judaism provides detailed guidance to all aspects of life, it does so during crisis as well. This is especially important when clear guidance becomes crucial and this sometimes includes unique approaches that become necessary during challenging times. Jewish law is an ancient and wise ethical system that has thought long and hard about these issues of life and death for thousands of years and has profound practical wisdom that can assist in making the most difficult of decisions. I will provide an overview list of some Jewish emergency triage values, followed by a more detailed discussion:

Summary

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

Detailed Discussion

Under normal circumstances, terminal extubation (removing a patient from a ventilator that is sustaining their life) is forbidden by most rabbinic authorities.[1] 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).[2] 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.[3] 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.[4] However, in a difficult situation in which there is a severe shortage of ventilators, and the purpose of the removing one patient from a ventilator is to save another patient’s life, there may be stronger basis to permit doing so in some cases of dying patients who have no chance of recovery.[5]

This approach can enable the saving of many lives. Indeed, one of the fundamental principles of triage in Jewish law is that priority must be given to saving as many people as possible.[6] For this reason, rabbinic authorities encourage the approach to triage that bypasses treating those who are too sick to benefit or too well to absolutely need it. Their reasoning is that since treating them requires more time and resources, many others will die waiting. Treating the more moderately ill should be the focus of efforts since that generally take less time and uses fewer intensive resources, thus enabling treatment of more people (hatzalat rabim).[7]

Although saving one or even many lives does not override an act of active killing in Jewish law,[8] this “hatzalat rabim” perspective favors the position that terminal extubation is not always viewed as killing but may be seen as allowing to die/failing to save, which can be permitted for a dying patient (see footnote 3). However, terminal extubation should only happen on a case by case basis after careful review and determination that there is no other option, such as those detailed below.

Priorities

Before withdrawing any interventions, it is ideal to triage as effectively as possible. It is not always required to intubate (put on a respirator) a dying patient who is suffering,[9] particularly in these triage situations in which other patients can benefit more from the limited respirators, even if those other patients have not yet arrived to the hospital but it is very likely that many will.[10] 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, if there is time they may be allowed to die naturally in other ways, such as not refilling IV medication bags or not increasing ventilator settings, rather than terminal extubation.[11] This may sometimes include allowing patients with very low chances of survival to be DNR, which will make their ventilator available after the patient dies naturally.[12]
  • Situations in which treatment was already initiated: Although above we noted that 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 certainly salvageable, acquires a certain right to continued treatment. It follows that whenever possible, treatment should not be removed from this patient in order to treat another.[13] 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.[14]
  • Certainty: In Jewish Law, a definite danger takes precedence over a uncertain danger.[15] 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.[16]
  • Potential for full life: When there are two patients waiting for a ventilator but only one available, if one patient has the potential to live a full lifespan after being saved and the other is terminal,[17] one should prioritize the patient who is more likely to live a full lifespan.[18]
  • Although great care should be made to save all human beings equally,[19] with no priority based on socioeconomic status, race, gender etc., an individual who is desperately needed by the masses, such as medical or communal leaders, may sometimes gain priority if absolutely necessary, all else being equal.[20]
  • If there is a choice of which patient to extubate, it is ideal not to extubate someone who will die immediately[21] and instead choose someone who may be able to breath on their own for some time after they are extubated.[22]

This document is not meant to imply that Jewish patients should be treated differently than others, but as a guide to decision-making based on Jewish values. In an emergency situation, such as the COVID-19 pandemic, front line medical professions simply must make choices, whether or not rabbis support each decision, so it would be most prudent for rabbinic authorities to take part in the triage decision-making process 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, illogical 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 ethical integrity between each other and God. And of course, when engaging in such difficult dilemmas, it becomes especially important to care for medical professionals, patients, and their families emotional and spiritual well-being so that they can not only survive physically but as “whole” as possible.

 

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

[2] 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).

[3] 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.

[4] 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.).

[5] R. Shlomo Zalman Auerbach seems to support an approach similar to his son in law, R. Z.N. Goldberg, (quoted in note 3 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 )

[6] 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 Halakhicaly (A. Steinberg, Ha-Refuah Ke-Halakhah 5, 82). However, in 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.

[7] 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, but if a medic did so, it would not be classified as murder, since it is done in the context of lifesaving (69–70).

[8] 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).

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

[10] Kuntres Minchat Asher – Betekufat Corona, 2nd ed. #4. See also discussion in footnote 18 below.

[11] 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).

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

[13] 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 mitvzot (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).

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

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

[16] 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.

[17] 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)).

[18] 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 before us, 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 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 only live chayei sha’ah for the sake of one who can live chayei olam.

[19] 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]).

[20] Shiurei Torah Le-Rofim 3:161, pp. 66–7, 73. 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.

[21] R. Z.N. Goldberg, in citation in footnote 3 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.

[22] 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.