LOOKING BACKWARD: Triage During the COVID-19 Pandemic
Dedicated to the refuah shelama of Yissacher Chaim ben Esther Malka and all patients suffering from coronavirus.
[“Looking Backward” is an occasional feature on TraditionOnline.org in which we ask authors to reflect on their contributions to the pages of Tradition from years past.]
Does contemporary halakha follow the triage guidelines outlined in Mishna Horayot (13a), including the prioritization of a man’s life over a woman? I examined this question in the pages of TRADITION in my essay “A Man Takes Precedence Over a Woman When it Comes to Saving a Life: The Modern Dilemma of Triage from a Halakhic and Ethical Perspective” (Spring 2014). The paper argued that many modern poskim, particularly Rav Moshe Feinstein, maintained that for a variety of reasons we do not follow these procedures today when faced with a question of triage. I admit that I wrote the article I was writing from an academic and theoretical perspective, and did not imagine that physicians would actually be confronted with real-life questions of whom to save. However, with the relentless progression of the coronavirus pandemic we might soon have to face, if we are not doing so already, these tragic questions in the United States, Israel, and elsewhere (as doctors in Italy are already forced to).
Most secular ethicists take a utilitarian perspective to triage decisions based on maximizing the years and quality of life saved. Many modern poskim take a similar approach as well. For example, R. Feinstein writes (as translated by Rabbi Tendler) “In my opinion [Rav Moshe] if both arrive at the same time, the decision should be made on the basis of medical suitability. The one who has the best chance of being treated and cured should be given the available bed.”1
Similarly, R. Shlomo Zalman Auerbach writes, based on the Pri Megadim “that one should primarily take into account the degree of danger and chance for cure”2 in making triage decisions. This is in fact how many physicians make such decisions—we look at the balance between the acuteness of the patient and the reversibility of the disease to decide who should receive scarce resources.
R. Eliezer Waldenberg goes further than Rabbis Feinstein or Auerbach and maintains that one may even hold in abeyance life-saving equipment from a ’a person with a dire prognosis [hayyei sha’ah] in anticipation of the predicted arrival of a patient with more favorable prospects [hayyei olam]. In his words,
The rules of the hospital in Johannesburg, to only use limited life-saving equipment on patients that can be saved for hayyei olam, are praiseworthy. If they are used for patients who are only hayyei sha’ah you will thereby prevent the saving of patients who are hayyei olam.3
However, Rabbis Feinstein, Auerbach, and Waldenberg all agree that once one has started treating the hayyei sha’ah with the life-saving equipment it cannot be disconnected to treat another patient.
The major disagreement between modern poskim is what procedure should be followed in a case of two patients where the differential between medical sustainability is not apparent.
In explaining the passage in Horayot, that a man’s life takes precedent over that of a woman, R. Waldenberg writes: “This law is only applicable in relation to a man who keeps all the mitzvot; but in a situation where a woman keeps the mitzvot that she is commanded in and the man does not, then the woman receives preference in life-saving. And this is the reason Rambam, Tur, and Shulhan Arukh did not bring this ruling [of the Mishna] because it is not consistent but dependent on the relative mitzva observance of the man and woman and according to the information available to the lifesavers at that moment… And thus it seems appropriate not to give fixed guidelines but instead leave it to the discretion of the rescuers.”4
Hazon Ish also lets the rescuer decide if both patients are able to be saved (if one is not able to follow the priorities listed in Horayot). R. Feinstein, as opposed to Hazon Ish and R. Waldenberg, maintains that if two patients who can both potentially be saved arrive at the hospital simultaneously the physician does not have the discretion to choose who should live, because man does have the right to decide whose life is more worthy of being saved. Instead, he suggests, one should use a lottery or a first come first system (in which the physician or rescue worker treats the first patient he encounters, regardless of other triage protocols). He bases this position on the Talmudic principle “what makes you think that your blood is redder than the blood of a fellow human being?” (Sanhedrin 74a).
In a practical application of this ruling, Chief Rabbi Herzog once asked R. Feinstein who should receive the limited amount of penicillin available in Israel at the time. R. Feinstein answered that it should be given to the first patient the physician encountered who needed the medication.5 Rav Moshe also expressly forbade the use of a patient’s cognitive status or other physical impairments in making triage decisions. R. Auerbach forbids one from using age as a determinant.
To summarize, R. Feinstein maintains that only God can make these life and death decisions and thus leaves the decision to chance (lottery or first-come, first-served) while Hazon Ish and R. Waldenberg allow a certain amount of subjective human determination in triage. As a physician I can attest that, from a practical perspective, it is very difficult to implement R. Feinstein’s recommendations. A fair lottery does not seem tenable in a busy, modern hospital, and it would be very difficult for a physician to disregard his or her conscious or unconscious biases in a first come first system, which requires him to overlook standard rules of triage. In normal times critical care physicians are very used to using their medical instincts to decide who will most likely benefit from intensive care but in times of pandemic it is probably more fair and just for local and/or national guidelines to be developed. I believe such an approach is consistent with the opinions of Hazon Ish and R. Waldenberg, who in certain circumstances leave triage to the discretion of the rescuers. Some practical considerations for decision making in our current circumstance, subject to rabbinical approval, are as follows:
I hope and pray these concerns remain theoretical in nature as we look to God for our salvation in these terrible times—“For I am the Lord who heals you” (Exodus 15:26).
Just as I finished writing this piece, I saw Rav Hershel Schachter’s important responsum on triage in the time of coronavirus issued on March 31, 2020 and updated on April 6, 2020. He writes (my translation):
In a case of two patients who arrive at the same time to the hospital, and there is only one respirator available and we must decide to whom to give it :. If one of them has an almost certain chance of being saved, or the other has only a doubtful possibility of being saved, it is obvious that we give preference to the patient with a very good chance of being saved as opposed to the other (see Nishmat Avraham to Yoreh De’ah 252:2). But if they did not arrive simultaneously, and the first patient has already been connected to the respirator, even if he is an extremely old and ill patient with only a doubtful possibility of survival, and afterwards a young, otherwise healthy patient arrives in need of the respirator—in this case we cannot prefer one life over another [and we do not disconnect the elderly patient from the respirator to give it to the younger patient]. But if when the sick elderly patient arrives we already know that in one or two hours, more young and otherwise healthy patients [coronavirus aside] will arrive, since this is the daily situation at this time, and it is clear that there are not enough respirators for all patients, thus we consider as if they came at the same time, and we should not connect the sick, elderly patient to the machine [since we know it will imminently be required to save the life of a young person who has a much better prospect of long-term recovery and survival].
R. Schachter here follows the approach of R. Feinstein and R. Auerbach that the crucial point for prioritization of scarce resources is possibility of cure. However, it is not clear from R. Schachter’s responsum if age is an independent factor in triage decisions or if it is a marker for a worse outcome and is part of the risk-benefit calculation, similar to co-morbid conditions. In a clarification of the initial responsum, Rav Schachter writes “regarding an elderly patient, even if the respirator was beneficial, he will only be a hayyei sha’ah (will only live less than twelve months).” But this is also difficult to understand—why should the elderly person be considered a hayyei sha’ah if he survives corona, unless Rav Schachter was alluding to a case where the elderly patient was dying from the outset. If the latter is the case, then it is hard to understand why age should matter. The crucial factor seems to be that the patient is going to die anyway within the estimated time. He also does not define what age is considered “elderly” for halakhic triage decision making. He allows physicians to hold a respirator in advance for a healthy young patient to arrive, like the opinion of R. Waldenberg, but does not cite a source for this ruling. He does, however, describe a situation which unfortunately is highly likely in these awful times—the near certain arrival of young and otherwise healthy people in need of immediate mechanical ventilation due to the COVID-19 virus.
Rav Schachter continues:
If the elderly patient was already connected to the respirator and then it became apparent that it was to no avail, [and] because many young people will arrive—then the correct course of action should be for the physicians to designate the patient DNR [“do not resuscitate”]. In a choice between initiating a new therapy for the elderly patient, as opposed to treating a younger patient whose arrival is imminent, we should consider this a case of “they arrived at the same time,” and we should prioritize the young, otherwise healthy patients. This is not considered a case of “setting aside one life for another.”
It is not clear the exact clinical response that Rav Schachter is referring to, and it would be hard to believe that one would be allowed to disconnect the elderly patient from the respirator, which most poskim consider to be an act of murder (with a possible exception of disconnecting the respirator in order to share it with another patient, which Rav Schachter discusses later in the responsum). A more accepted explanation is that non-continuous therapies would be allowed to be stopped, such as medications to increase the patients’ blood pressure, dialysis, possibly administering antibiotics, or transferring the patient from the intensive care unit. It’s not clear if R. Feinstein would agree with this approach because he felt that once the patient is admitted to the intensive care unit he has “acquired the place” and has rights to continuity of treatment. In the dire circumstance that Rav Schachter describes, in which there is an immediate need for a respirator for a young patient with an excellent chance of survival, the question arises whether one can disconnect the elderly terminal patient from the respirator and use non-invasive ventilation (BiPAP) to sustain the patient in order to give the ventilator to the young patient?
Notwithstanding the above requests for clarification, Rav Schacters’s numerous responsa on halakhic issues relating to coronavirus and his availability to both the laity and professional rabbinate have been a model for rabbinic leadership in times of crisis.
Alan Jotkowitz is Professor of Medicine, Director of the Medical School for International Health, and the Director of the Jakobovits Center for Jewish Medical Ethics, Ben-Gurion University of the Negev. The author thanks Amy Solnica, R.N., for help in preparing this article.