Unpacking the Iggerot: Are Some Lives More Equal Than Others?
Read more about “Unpacking the Iggerot” and see the archive of all past columns.
Triage / Iggerot Moshe, Hoshen Mishpat, vol. 2, #73
Summarizing the Iggerot
All lives are equal, but are some more equal than others? A 1982 case presented to R. Feinstein involved Person A who possessed an incurable illness, but with immediate intensive care it would be possible to extend his lifespan by a nominal amount of time, while for Person B, who does not immediately require intensive care, should it turn out that he will need it, the doctors would be better equipped to significantly extend his lifes if Patient A was taking the ICU bed and resources. When a hospital is faced with two such patients, but only one remaining bed in an E.R. or ICU, who has priority?
R. Feinstein identified three different scenarios:
1) If both individuals arrive at the same time, preference should be given to Person B, as the prospect of granting long-term recovery (hayyei olam) is prioritized over a short-term extension (hayyei sha’a).
2) While, in principle, Person B should be granted priority, if Person A was already assigned a bed then it would be forbidden to remove him “as he has already acquired it by virtue of being brought there for the amount of time necessary.” This is true even if both patients had arrived at the same time and they erroneously allocated the room to Person A. Moreover, not only would the hospital staff not be allowed to evict Person A, but it would likewise be forbidden for Person A to willingly cede it to Person B, as that is akin to forfeiting his own life for the sake of another.
3) The trickiest scenario involves Person A arriving before Person B, but Person A has not yet been allotted a room. R. Feinstein asserts that so long as a room has not been assigned to Person A, then it should go to Person B—no different if they had both arrived simultaneously.
However, he cautions against implementing this in practice: “There is reasonable grounds to be concerned that it will harm the psychological state [of Person A], for he will say [to himself] that they already think it is as if he is not here and is not worth treating.” With Person A realizing that he was bypassed for someone behind him, his mental state will worsen and lead to accelerated physiological decline. While Person B should be prioritized in principle, R. Feinstein advises that the safest course of action is always to go with a first-come-first-serve policy.
Connecting the Iggerot
R. Feinstein restates much of what we outlined above in the following responsum (H.M., vol. 2, #74). He reiterates the concern for a patient’s psychological state and that it is best practice to admit patients based on arrival times. However, he adds that the doctors may reserve the right to bypass a patient if someone who arrived later requires more immediate attention: “And this determination is dependent on the assessment of the doctors.” This is a critical corollary, as R. Feinstein recognizes that decisions need to be made in the heat of the moment and that medical professionals need to be empowered with a degree of discretion to enable necessary versatility.
So far we have assumed that the two individuals in these scenarios are inherently equal, but differ based on their medical diagnoses or arrival times. However, the Mishnah suggests that while all Jews are equal, some are intrinsically more equal than others:
A priest precedes a Levite. A Levite precedes an Israelite. An Israelite precedes a son born from an incestuous or adulterous relationship [mamzer], and a mamzer precedes a Gibeonite, and a Gibeonite precedes a convert, and a convert precedes an emancipated slave (Horayot 3:8).
R. Feinstein opaquely disregards this passage, insisting it cannot be applied “without great analysis.” Reportedly, when he was asked about whether a younger person should be prioritized over an older one, he smirked and replied “Heaven forfend… But I am a little biased, as I myself am old!” (Mesorat Moshe, vol. 4, p. 316).
Reception of the Iggerot
While R. Feinstein’s recommended protocols for medical triage resonated with many in the abstract, some, like R. Asher Weiss (Responsa Minhat Asher, vol. 1, #115:4), expressed some skepticism as to whether they fully reflected the reality on the ground. R. Weiss initially expresses puzzlement at R. Feinstein’s presupposition that once a patient is put into a hospital room he “acquires” it, as if to say that he assumes some level of temporary ownership over the space. Instead, he posits that R. Feinstein is not speaking about property law but is using that phraseology to convey the more pertinent principle that we do not sacrifice one life to save another (ein dohin nefesh me-pnei nefesh). To evict one patient from a room for the sake of another would run afoul of that principle.
With this working theory of R. Feinstein’s position, R. Weiss proceeds to rebut it, not on the basis of principle, but of reality. He points out that it is commonplace for the hospital to transfer patients to different rooms for a variety of routine reasons. Moreover, even if a patient is moved out of an intensive care unit that is not tantamount to discharging him altogether. They are still cared for and any necessary medical assistance remains on hand.
While R. Weiss raises several important points, I believe R. Feinstein already anticipated them. As we saw in the previous section, R. Feinstein qualified his general guidance with a built-in elastic clause that such a “determination is dependent on the assessment of the doctors.” He was providing the abstract principles and empowering the medical professionals to implement them as required by their circumstances.
R. Feinstein’s responsa on triage also set the stage for a debate about whether to reveal to a terminal patient the extent of his or her circumstances. As we saw, R. Feinstein expressed concern for the psychological welfare of a patient, even allowing the sequence of care to be disrupted to ensure that a terminal patient not lose hope, thereby leading to accelerated decline. Nishmat Avraham infers from this that such devastating news should remain concealed from a patient, while R. Yigal Shafran (Assia 42–43 [1987]) argues that R. Feinstein’s ruling does not support that. The guiding principle is to do what is “best for the ill individual”, and sometimes that means breaking the news to allow them to utilize their remaining time in an optimum manner (A summary of this debate can be found here).
Reflecting on the Iggerot
In our last column, we reviewed R. Feinstein’s approach to hostage dilemmas, which one could reasonably connect to the question of triage. However, R. Dr. Moshe D. Tendler, in his contribution to a memorial volume for R. Joseph B. Soloveitchik (Sefer Kavod HaRav, p. 167), proposes that there are different principles that govern triage between two individuals versus the needs of an entire community or population. He supports this assertion, in part, by citing Nedarim (80b):
It was taught in a baraita: In the case of a spring belonging to the residents of a city, if the water was needed for their own lives, i.e., the city’s residents required the spring for drinking water, and it was also needed for the lives of others, their own lives take precedence over the lives of others. Likewise, if the water was needed for their own animals and also for the animals of others, their own animals take precedence over the animals of others. And if the water was needed for their own laundry and also for the laundry of others, their own laundry takes precedence over the laundry of others…. Rabbi Yosei says: Even their own laundry takes precedence over the lives of others.
It is ostensibly mind-boggling that one community’s laundry could take priority over another’s lives. However, R. Tendler cites R. Hai Gaon (Sheiltot, Parashat Re’eh #147) who elucidates that the inability to launder clothing would lead to long-term peril by allowing the unhindered spread of illness and disease. He infers that beyond the immediate questions of life and death, a community and a nation are charged with a moral responsibility to look after both the short-term and long-term welfare of their constituents.
Endnote: The aforementioned essay by R. Tendler also provides a brief glimpse into an exchange between R. Feinstein and R. Shlomo Goren, when the latter sought guidance on how to distribute a limited supply of penicillin in the State of Israel. R. Feinstein applied similar principles observed in his responsa on triage, arguing that it is first-come-first-serve.
The distinction between short-term versus long term extension of life is a significant dichotomy that plays throughout R. Feinstein’s responsa on medical ethics. For instance, in Iggerot Moshe (Y.D., vol. 2, #58; cf. Y.D.. vol. 1, #145), he outlines when would be permissible, obligatory, or forbidden to undergo a procedure that bears the potential to extend the patient’s life while also carrying the chance of failure, thereby ending his life earlier than if no medical intervention been introduced. R. Feinstein rules that a surgery with a majority chance of success would be obligatory, while a 50/50 chance would be left up to the patient’s discretion. See also our column on “Davening for Death” in which we elaborated on R. Feinstein’s approach to quality of life and patient autonomy in the medical decision-making process.
Moshe Kurtz is the rabbi of Cong. Sons of Israel in Allentown, PA, the author of Meoros Moshe, Challenging Assumptions, and hosts the As I Walk Through the Valley podcast.