A daughter's dilemma | מקורות

[This article explores whether a gravely ill individual who is expected to live only a very brief while is permitted to undergo a very risky medical procedure in an attempt to restore his health.]

How Much Risk? The Gemara does not explicitly state how much risk to Chayei Shaah we are permitted to assume. This issue, however, is debated by nineteenth and twentieth century Poskim.

The Mishnat Chachamim (cited in Teshuvot Achiezer 2:16:6) asserts that one is permitted to risk Chayei Shaah only if the risk to Chayei Shaah is fifty percent or less (Safek HaShakul). According to this view, one who is expected to live only for a short while is forbidden to engage in a medical procedure if there is a chance greater than fifty percent that the medical procedure might kill him immediately, even though there is a chance that the procedure might completely heal him.

Later twentieth century authorities debate how to resolve this issue.

Teshuvot Tzitz Eliezer (10:25:5:5) seems to agree with the Mishnat Chachamim.

On the other hand, Rav Moshe Feinstein (Teshuvot Igrot Moshe Yoreh Deah 2:58, written in 1961) rules that one may risk Chayei Shaah even if there is only a Safeik Rachok (remote or slim chance) that the procedure will effect a cure, and it is more likely than not that the procedure will kill the patient immediately…

. . . The more conservative approach could adopt one of two approaches. These authorities might argue that prudent people would not view a very great risk to Chayei Shaah as reasonable. Alternatively, they might argue that although prudent people regard such a risk as prudent, the Halacha places a limit on the degree of risk we are permitted to assume. Recall from last week that we cited Tosafot who explain that we sanction the risk to Chayei Shaah only because it is done LeTovato, in the patient’s best interest. One might argue that the Halacha believes that an enormous risk to the patient’s Chayei Shaah is not in his interest and therefore we disregard “the prudent person standard” in such a situation.

Defining Chayei Shaah The Gemara does not precisely define Chayei Shaah. Rashi (s.v. Chayei Shaah) explains that the Gemara is speaking about one who is expected to live for only a day or two. This statement does not appear to establish a formal standard for the category of Chayei Shaah, as Rashi seems to deliberately use an imprecise example – a day or two. Indeed, we do not find a precise definition for the term Chayei Shaah in the writings of the Rishonim and early Acharonim. In fact, Rav Shlomo Eger (Gilyon Maharsha 155:1) permitted a very risky medical procedure on a patient who was expected to live “Zeman Mah,” only a short while, even though it seems that he was expected to live longer than a day or two. Accordingly, we should not find it surprising that Rav Chaim Ozer permits a very risky surgery for someone who was expected to live for six months. Rav Chaim Ozer writes “the logic is obvious” that there is no conceptual distinction between a day or two as opposed to six months. Indeed, as we explained earlier, the basis for permitting a risk is that reasonable people regard such action as prudent and thus it is an appropriate manner for us to guard the body that Hashem has given us. Therefore, since most people would regard risking six months of life in the hope of achieving a cure to be as reasonable as risking a day or two of life to achieve a cure, there indeed is no conceptual difference between risking a day or two as opposed to six months.

Rav Chaim Ozer does not set six months as the upper limit on the time that he believes is permissible to risk. This simply was the situation of the case regarding which he was asked to adjudicate… One could argue that it is difficult to establish objective criteria for precisely how much risk of how much life is considered acceptable according to the Halacha. One approach could be, as we have presented earlier, that the Halachic standard follows the opinion of most prudent people. Most reasonable people may deem a certain amount of risk to a certain amount of life to be either prudent or imprudent, and this is the standard that we follow. Obviously, consultation with top tier doctors and rabbis is necessary for one who finds himself in such a situation in order to properly assess the wisdom of any high-risk surgery.

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Rabbi Chaim (Howard) Jachter is a prominent Orthodox rabbi on the RCA (Rabbinical Council of America) who serves as the rabbi at Sha’arei Orah, he Sephardic Congregation of Teaneck.