His Battle is Our Battle

letter-447577_1280

Chaim Shmuel Golubchuk, a”h, has gone to his eternal reward. But the issues that pitted his children Percy Golubchuk and Miriam Geller against Grace General Hospital in Winnipeg over the last seven months will long be with us.

After being informed by their father’s doctors that they intended to end his life by removing his ventilation and feeding tube, the Golubchuk children sought an injunction against the hospital. They argued that their father would adamantly oppose any attempt to shorten his life, which is forbidden by Jewish law.

After the entry of a temporary injunction, the hospital pursued an aggressive legal and public relations campaign. At one recent hearing, the hospital was represented by a team of no less than seven high-priced attorneys (despite its claims that providing care for Mr. Golubchuk was draining the hospital’s resources.) Three doctors resigned from thospital’s intensive care unit claiming they were being forced to violate their ethical beliefs by continuing to treat Mr. Golubchuk rather than simply hastening his death. One of them graphically described in a public letter how the doctors in the ward would be left “to surgically hack away at his infected flesh at the bedside in order to keep the infection [from bedsores[ at bay.”

Charges that “hopeless” efforts to prolong Mr. Golubchuk’s life were diverting valuable medical resources from other patients aired continuously in the Canadian media. One editorial in the journal of the Canadian Medical Association went so far as to accuse the Golubchuk children of using their religious beliefs to gain special treatment for their father. And numerous letters appeared in the Canadian press decrying or ridiculing the Golubchuk’s religious fanaticism.

Dr. Leon Zacharowicz, a New York neurologist, who devoted hundreds of hours of pro bono time to advising the Golubchuk family, noted in his court affidavits that the hospital had moved to cut off life support on the grounds that Mr. Golubchuk had only minimal brain function without his having been evaluated by a neurologist or such basic tests as an EEG or CAT scan having been administered. Yet at one point subsequent to the issuance of the temporary injunction, Mr. Golubchuk was described as “awake, alert, sitting up in a chair at times, more interactive and shaking hands purposively.” His children reported his shedding a tear as they recited Krias Shema with him on Erev Shavuos. Dr. Zacharowicz, who initially entered the case at the urging of Agudath Israel of America, denied the claim of the Winnipeg doctors that Mr. Golubchuk was in any significant pain from any of the treatments being rendered, and noted that his medical charts show no evidence of significant pain management.

The hospital’s argument that the treatment of Mr. Golubchuk severely impaired its ability to serve other patients with much better chances of survival would seem, at best, to have been highly exaggerated. A doctor who recently visited the intensive care ward reported that there were numerous empty beds and that the staff paid almost no attention to Mr. Golubchuk. That inattention may have eventually contributed to the bedsores that apparently killed him. Dr. Dave Easton, who works in the hospital’s ICU, admitted in a June 17 piece in the Winnipeg Free Press, in which he shared his ethical dilemmas about continuing to treat Mr. Golubchuk, that “until the last few days, the level of care was no different than that of any patient on a ‘medical ward’ (with the exception of a ventilator), and essentially unchanged for the last number of months since his admission.”

AS MEDICAL TECHNOLOGY improves the ability to prolong life, end of life issues like those raised by the Golubchuk case will become more and more frequent. Many of us will face such issues ourselves or on behalf of loved ones. That is one reason why it is so crucial that each of us prepare “living wills,” such as that developed by Agudath Israel, to specify a competent halachic authority to make those crucial decisions for us in the event that we are incapacitated.

But the nature of the arguments made in the Golubchuk case makes clear that such legal protections could one day prove of limited utility. There is, of course, a wide range of legislation dealing with end of life decisions between various Canadian provinces in Canada and American states. Most American states apply a “brain death” standard to determine when death has occurred. New York and several others, however, provide a religious exemption for those who do not accept “brain death” as the proper standard.

The Golubchuk case, while not about “brain death” (which even the hospital admitted had not occurred), demonstrates how precarious any form of “religious exemption” might prove to be, and the pressures that could amount against showing any deference to the religious beliefs of patients. In that context, the charge that Mr. Golubchuk’s children were somehow taking advantage of their religion should give us all pause.

The deference to religious beliefs will inevitably be far less in countries with socialized medicine and overall caps on medical spending. There scarcity issues will inevitably lead to the evaluation of the quality of one life against another and trump the religious beliefs of patients and their families.

In Mr. Golubchuk’s case there could be no dispute about what his wishes were. This was no replay of the infamous Terry Schiavo case. Yet the hospital and his doctors viewed those wishes as irrelevant. The Statement of the College of Physicians and Surgeons of Manitoba on Withholding and Withdrawing Life-Sustaining Treatment, published after the issuance of the first injunction, explicitly provides that “physicians have the authority to make medical decisions to withhold or withdraw life-sustaining treatment from a patient without the consent of the patient or the patient’s family.”

Jeff Blackner, executive director of the office of ethics of the Canadian Medical Association told Reuters, “We want to make sure that clinical decisions are left to physicians and not judges.” (We shall consider next week the implications of the claim that doctors should have absolute autonomy and its underlying premise that scientific knowledge offers particular insight into the most difficult moral decisions.)

Despite the obvious importance of these issues to all Torah Jews, there was no well-organized campaign to aid the Golubchuk family. The Golubchuk children were forced to rely on the services of a dedicated solo practitioner, whose primary expertise is in criminal law, against the hospital’s team of corporate attorneys, and have been left to bear the immense legal expenses alone. (Agudath Israel of America was in the process of arranging pro bono research assistance from a major firm at the time of Mr. Golubchuk’s passing.) Nor was there any organized effort to counter the hospital’s media blitz.

As Dr. Zacharowicz noted in a eulogy read at the funeral, Chaim Shmuel Golubchuk was a hero. He went overseas as an underage 16-year-old to fight the Nazis, and never ate any non-kosher food, even on the battlefield. That stubbornness was transmitted to his children, whom he raised alone for 34 years, after the passing of their mother. They were able to repay, in part, that debt in recent years, spending many hours each day at his side, paying not heed to being maligned as cruel fanatics in the media, and bearing the enormous legal costs. In his children’s dedication to upholding the Torah, Chaim Shmuel Golubchuk received his greatest tribute.

This article was published in the Mishpacha on July 9, 2008

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19 Responses

  1. Steve Brizel says:

    Despite the quoting of the views of R M Tendler and R Waldenberg ZTL, there is no proof that the patient was anywhere nearly as sick as described in their quoted views or at the end of the medical/hospital food chain of priority of treatment, except for the fact that his doctors prescribed a regimen of palliative treatment for someone who deserved far more and and whose basic needs such as cleaning bedsores were neglected.

  2. B. A. says:

    This is not the ideal format for the study and discussion of one of the most complex areas in halacha, medical halacha. Actual questions of medical halacha are generally referred to the outstanding sages of our generation, who have spent decades upon decades of studying Torah. Many decisions hinge on particulars of a case which cannot always be fully understood, nor shared, in an internet format.

    Those of us who are not recognized talmidei chachamim should be very cautious, in my view, not to state what the halacha is, but rather to do as Noam did above, ie cite what a major halachic authority has written or said about a certain topic.

    I might add that there are ways to approach the sages about such topics. Rabbi Dr. Abraham S. Abraham compiled numerous teshuvot, from leading sages, in his magnum opus, NISHMAT AVRAHAM (recently released in a new, expanded Hebrew edition). A revised version of this Hebrew classic, with key deletions of sensitive topics by the author, has been translated into English.

    Works like these, however, are only the starting points for learning ‘sugyos’ in medical halacha. Even those who view themselves as quite knowledgeable can possibly make major mistakes, as anyone who attended the lecture on the ‘timer ventilator’ at the winter AOJS conference can attest, having heard A.S. Abraham’s vehement objection to the use of such a device for patients with Lou Gehrig’s disease, an act Rav Elyashiv and others equate with murder.

    What must be understood is that there are some things on which everyone, even a lay person in orthodox Judaism, must clearly agree. One of these is taking active measures designed to shorten the life of a patient. This is without a doubt considered murder in halacha. Such measures would include shutting off a ventilator, removing a feeding tube, giving high doses of painkillers in order to stop breathing, etc, in the view of the overwhelming majority of poskim.

    All of these measures were sought by those who wished to see Mr. Golubchuk zl dead.

  3. Noam says:

    Rav Steinberg brings the Tzitz Eliezer Vol. 9 Sect. 17 chapt. 10 par. 5 in the English language book entitled ‘Jewish Medical Law’ page 156.

    ” A patient who has a prognosis for cure takes precedence in the distribution of limited medical resources over a patient whose prognosis is only for temporary control of his disease. This applies only when the patient with the poorer prognosis is passively neglected in favor of the patient with the better prognosis. However, active intervention with the less fortunate patient(i.e., to terminate his therapy so that the patient with the better prognosis may utilize those resources) is forbidden.”

    Noam

  4. Charles B. Hall says:

    “in Israel – where we actually have to set up a medical system that works and maximizes care *for the entire population* as opposed to the USA, where individual doctors need to make decisions based solely on the patient that is in front of them.”

    Based in life expectancy, Israel’s system does seem to work better: Israel’s life expectancy at birth is almost two years longer than that of the US, despite the fact that the US spends far more on medical care.

    “Perhaps Dr. Hall can elucidate further on Rav Tendler’s position.”

    I think it is in this shiur, about half way through:

    http://www.yutorah.org/showShiur.cfm/716090/Rabbi_Moshe_D._Tendler/Time_of_Death:_Brain_Death_in_Jewish_Law

    It is actually a rather brief discussion in the midst of a much longer shiur primarily on the issue of brain death.

    “I am not sure if other poskim have addressed this specific issue- having an a priori policy in place that provides universal but in some cases limited coverage as opposed to maximally treating patients as they present, knowing that those at the end of the line will recieve little to no treatment.”

    I’ve seen nothing by any other posek. If anyone is aware of anything that either confirms or disputes Rabbi Dr. Tendler, I’d be interested in seeing it.

  5. shimi says:

    Maybe R Rosenblum can counter what was posted in hirhurim about this article not being factually correct.

  6. Noam says:

    Moshe,

    You ask excellent questions and my experience and knowledge is more based on individual patient situations rather than the public policy arena. Perhaps Dr. Hall can elucidate further on Rav Tendler’s position. I am not sure if other poskim have addressed this specific issue- having an a priori policy in place that provides universal but in some cases limited coverage as opposed to maximally treating patients as they present, knowing that those at the end of the line will recieve little to no treatment. I will comment more if I find anything on point. Perhaps our Rabbinic hosts or other commentors have further information or sources.

  7. Noam says:

    Dr. Hall,

    I dont think that we are disagreeing. I would not disagree with Rav Tendler. However, I dont think that halacha would allow denying care to one specific person in order to free up funds to treat a number of unidentified others. The ‘choleh l’fanecha’ concept is treated quite literally and emphatically. Universal care is something desireable, and treating the patient in front of you is desireable, but one can’t sacrifice the patient in front of you to achieve universal health care. You have to find a way to achieve both.

    A patient does not have a right to futile care, and doctors and insurers have no obligation to provide it. I do not, and in fact am obligated to refuse to perform operations that will not benefit the patient. However, now you have to define futile, and that definition is different depending on the value system.

    Noam Stadlan
    (for B.A.)

  8. Moshe says:

    Dr. Stadlan,

    Thanks for your detailed response.

    How about with regard to public policy? When setting up the policy, *none* of the patients are in front of us, and we can then set up the policy in accordance with a set system of precedents. I’m asking this b/c this is a big issue in Israel – where we actually have to set up a medical system that works and maximizes care *for the entire population* as opposed to the USA, where individual doctors need to make decisions based solely on the patient that is in front of them.

    If anyone thinks that a population can spend 50% of its GDP on medical care, I have news for them. Unless medical care is somehow rationed, the medical care’s percentage will simply keep rising, as medicine is constantly coming up with new ways of extending the lives of people who would have died in the past.

  9. B. A. says:

    There was no halachic debate, nor could there be, about the Golubchuk case (and in any event they consulted with poskim and followed their directives). This man was awake and at times interactive, and did not give any indication that he wanted his care stopped. His children, who were his legal guardians, vehemently opposed the plan of Dr Bojan Paunovic (pronounced PAHnovich in the original Ukrainian) and Dr Anand Kumar, decided to end his life, without having a neurologist see him.
    The family was forced to take the hospital and doctors to court to stay the hand of the doctors. A judge agreed with the family, as did the renowned Prof Jocelyn Downie (a non-Jewish expert on end of life matters, who is an advocate of euthanasia), that what they wanted to do — pull out the vent tube from his tracheostomy, stop all feedings, and give him a potentially lethal dose of narcotics — was without legal precedent in civilized society (except for 1930s Germany).

    There was also no evidence that he was in any significant pain, nor did the hospital provide him with any painkillers (consistent with the fact that he was not in any pain). The governmental hospital permitted him to develop what they called huge “ulcers” (bedsores) and applauded the decision of 3 doctors to refuse to care for Mr Golubchuk.

    Finally, Mr Golubchuk died, but the financial ruin of the family remains (contact Chabad in Winnipeg to offer help), as do the issues which were not answered. Do doctors have the right to end the lives of patients because they deem further care “futile,” without any need to have specialists consult or engage in any real ‘due process’?
    Should the Jewish community adopt a low-key approach to such dangers in the future? Is this not at least as important as some of the current priorities of the RCA, OU, and other organizations, as baby boomers age, and more and more doctors seek to withdraw care from elderly and disabled patients, thus saving billions of dollars for their employers and for HMOs?

    There is a pressing need for professionals who believe in morality and in Torah to get involved in such issues, and not just shrug their shoulders, or go to a conference or two and say “What can be done?”

    As for the comments made by some above, it behooves anyone to be extremely careful in accepting what is presented as halacha on the internet, especially in such anonymous formats, but in this case the halacha was clearcut, and the only question is how the orthodox Jewish community should prioritize such matters.

  10. Charlie Hall says:

    I suspect that the timing of the announcement is coincidental, but Yeshiva University is hosting a conference on September 14 that will discuss these issues. Here is the link:

    http://www.yu.edu/medicalethics

  11. Noam says:

    I should emphasize that my comments above are based on the information presented in the above post. This article by Rabbi Gil Student suggests that the facts may not be accurately presented.

    http://hirhurim.blogspot.com/2008/07/everyones-battle-following-golubchuk.html

    Noam

  12. Charles B. Hall says:

    “the arguement of conserving resources is not valid from a halachic point of view”

    I have heard Rabbi Dr. Moshe Tendler say in a shiur that universal health care is a chiyuv from the Torah.

    “One is not neccessarily obliged to provide or recieve treatment if it causes pain/discomfort and will not provide long term prolongation of life(defintion of long term varies by posek). On the other hand, if the patient requests it, then it should be provided.”

    This is really a difficult issue. For many diseases, the probability of successful treatment when the disease is at an advanced stage is vanishingly small. This is particularly true for some cancers. Do doctors have an obligation to provide treatment if they truly believe that the treatment has no realistic possibility of success? Does a patient have a right to a treatment that has not been shown to be effective in clinical studies? And do health insurers have an obligation to pay for such treatments? I think the answer to all three questions is “no”.

  13. Noam says:

    I am honored that Moshe asked my opinion on this matter. My understanding of the matter is as follows(and please remember I am not a halachic authority, but have dealt with many similar situations):

    1. Even with the limited amount of information, Mr. Golubchuk a”h was not brain dead. Therefore according to halacha he was just as alive as you or (hopefully) me.

    2. Halacha mandates that you treat the sick person in front of you, regardless of the cost and what it means for other possible sick people. You cannot sacrifice one person for the benefit of others.(If there are a number of sick people present, then obviously one has to triage resources, but one does not triage based on possible, theoretical, or even certain sick people if they are not immediately present.

    3. Therefore the arguement of conserving resources is not valid from a halachic point of view.

    4. (and here it gets halachically more difficult with more grey areas). One is not neccessarily obliged to provide or recieve treatment if it causes pain/discomfort and will not provide long term prolongation of life(defintion of long term varies by posek). On the other hand, if the patient requests it, then it should be provided. In other words, not every problem has to be treated if it will not change the underlying terminal course.

    5. Removing the ventillator from a patient who is not dead but dependent on the ventillator is not allowed by the vast majority of orthodox poskim.(I am not aware of anyone in writing approving the removal of the ventillator, but have heard reports of hopeless situations where the ventillator was not restarted after it was stopped for cleaning or other purposes- especially if it was thought that the ventillator was only prolonging the dying process)

    Therefore in this situation it seems that the family was acting according to halacha. There may have been other options, but the course they took appears halachically valid. This is a situation where society and the medical community weigh the situation differently than halacha does.

  14. Moshe says:

    Steve,

    Regarding Israel’s medical system, I think that you are greatly misinformed. Over the years it has developed, and people who have life threatening conditions do get treated ASAP. They might not get the treatment by the #1 specialist in the world, but they are treated by a competent doctor who is supervised by more experienced doctors.

    It is impossible to run a medical system in which everyone wants “the best” – as there will be no future of doctors as they will have no way to hone their skills.

    Again, someone who has a serious life threatening illness who needs immediate treatment will get it. Period.

  15. Steve Brizel says:

    The article in question IMO was a great illustration of what happens when doctors think that they have the ability and obligation to discontinue medical care despite the fact that the patient may benefit from the same. As far as the benefits of the much vaunted Canadian system or even Israel’s equivalent, the simple facts are that a prominent US senator would probably not have been able to obtain a quick clearance and undergo surgery for a life threatening condition.

  16. YM says:

    If a patient in a US hospital is deemed to have no possibility of recovery, my guess is that the patient’s insurance, whether Medicare or something else, would not agree to continue paying for his/her care. Is this correct? Does anyone know what happens then? Does the family have to agree to pay in order for the patient to continue to receive life-sustaining care?

  17. Moshe says:

    This is a very important religious and moral issue, which has not been dealt with (unfortunately) by Jewish ethicist in a clear and persuasive manner.

    Basically, we have forces pulling us in two distinct directions:
    1) We cannot kill people because we think that their life is ‘worthless’; even if Mr. Golobchuk was not responsive whatsoever, he was not brain dead (obviously, if you don’t consider brain death halakhic death, this is irrelevant, but there are many Torah scholars who do consider it death). As such, taking him off the respirator would have effectively killed him. (Obviously, a distinction can be made between injecting an overdose of morphine vs. taking an elderly patient off a respirator, but I’m trying to simplify things here.)

    2) On the other hand, no system has unlimited medical funds. Not in Israel, not in Canada, and not even in the USA. As the baby boomers age, and as medicine progresses, we will have more and more elderly demented patients that are in the state of Mr. Golobchuk, and it costs a lot of money to keep all of these patients in the ICU. Essentially, we are taking money that could have been better spent buying cancer drugs for those who can’t afford them (Erbitux, Avastin, etc..) and spending them on elderly people who *will not* recover from their dementia to lead elderly lives.

    These two issues are pressing issues, and I have not yet seen a comprehensive response to these issues. How can a society spend an unlimited amount of money on ‘futile’ medical care? (I call it futile because it will not cure the patient in order to allow him to lead a productive life in the future.) On the other hand, we can’t simply kill all elderly patients because they are a burden on society – to even suggest that is horrific! I don’t quite know how the two issues can be resolved.

    Additionally, I’d be interested in hearing the opinion of someone such as Dr. Noam Stadlan – a frequent commentator to this blog who takes issue with Dr. Zacharowicz on many end-of-life issues, as can be seen from previous comment threads on this blog.

  18. Ori says:

    Yehoshua Friedman, are you comparing the worst of the Canadian health care system to the Israeli average?

  19. Yehoshua Friedman says:

    This case is a clear call for Jews to make aliya. If you compare this atrocity with the care that Jewish doctors and nurses give in most Israeli hospitals as a matter of course, the difference is striking. The Jewish soul, even if the doctors are not personally observant, is noticeable. Halachic standards, even if not always honored 100%, are much more significantly taken into consideration, and there are religious hospitals where they are given prime consideration. Whose rabbi, of course, but two Jews, three opinions. Whatever is wrong, come here and fix it. It’s our country.