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Rush to Judgment

Barbara Bensoussan and Binyamin Rose

A new law takes effect in a little more than two months in New York State that will require all hospitals, nursing homes, and home care agencies to have policies and procedures ensuring patient access to palliative care. That law, plus a host of new federal Medicaid directives on treatment of elderly and terminal patients, is dramatically altering the nation’s medical ethics in ways that are triggering great concern in the Orthodox Jewish community.

Wednesday, June 22, 2011

America is in the throes of a major health care transition, as hospitals are increasingly trying to impose cost-cutting measures that government and private insurers are demanding. Hospitals pass along those pressures to the physicians, but at the end of the day, it is the patient who may pay the price, especially if he or she is already terminally ill.

Two new laws passed within the last year in New York may well increase the chances that the lives of certain patients will be seen as expendable. The first one, the Palliative Care Information Act, passed on August 10, 2010, requires health care practitioners to offer their patients information on palliative care and hospice care. Two months ago, the state legislature directed a wide range of medical facilities — hospitals, nursing homes, home care, special-needs assisted- and enhanced assisted-living residences — to establish policies and procedures to provide patients with “advanced life-limiting conditions and illnesses” (as the law puts it) access to information and counseling regarding appropriate options for their conditions.

Palliative care, according to the legislation, is defined as “health care treatment, including interdisciplinary end-of-life care in consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient’s quality of life.”

Hospitals have come under pressure as a result of the new law to move patients to a hospice program as soon as they determine a cure is no longer possible. In most cases, palliative care and hospice, if provided in accordance with halachah, could be a great benefit to the patient and the family. Since a cure is no longer possible, the patient can go home and the hospice medical director and other health professionals will be there to help the patient. In addition, there are some home care benefits as well.

However, patients might have good cause for suspicion that by going into a palliative care or hospice program, they will be left to die.

The New York Daily News reported last month that the Obama administration, as part of its health care reform package, plans to institute an “independent payment advisory board” consisting of what the Daily News termed “fifteen unelected bureaucrats who will have unchecked, binding power in the interest of supposedly greater efficiency and lower costs.”

As the article went on to elaborate, “That means that instead of you or your doctor making decisions about your care, a group of Washington micromanagers will do it for you. Reimbursements to doctors and hospitals will be cut, restricting patients from costly end-of-life care by enforcing caps on how much a patient can spend to stay alive. Most at risk will be the disabled, who require special and often expensive care. Cancer patients will be at risk, as well, since chemotherapy and other oncological treatments are some of the priciest.”

Many such cuts may well be antithetical to Torah Judaism, which places value on every second of life, even when one is suffering. The costs of end-of-life care, and for the chronically ill, which according to an Obama administration public statement account for potentially 80 percent of the nation’s total health care bill, constitute a major drain on public coffers and will have to be addressed. Medicare expenditures in 2009 were $55 billion for doctor and hospital bills in the last two months of life alone — more than the budget of the Department of Homeland Security or the Department of Education.

Hospitals are refusing to extend life with expensive treatments. Many hospitals now try to push terminally ill patients into lower-cost palliative care and hospice programs, and to advise incoming patients to sign do-not-resuscitate (DNR) advance directives. A new job title, the “discharge planner,” now exists to help hospitals save money rather than prolong the lives of patients.

Rabbi Shmuel Lefkowitz, vice president for community services of Agudath Israel of America, says the hospitals’ calculations now center on whether a patient admitted to a hospital is going to walk out on his two feet or die there. “If all they can do is to extend his life by one or two months, they don’t care,” said Rabbi Lefkowitz.

While the Orthodox Jewish community is blessed with many high-quality physicians, thus leading observant Jews to place a great deal of trust in their doctors, the new medical playing field, on both the national and state levels, is being tilted.

“The community is often unaware that things have changed and doctors don’t want people dying in the hospitals,” said Leah Zagelbaum, director of communications for Agudath Israel.

The Orthodox health care consumer who wishes to be treated al pi Torah should know the risk of remaining unaware of the new laws. Only by knowing both his rights, and what halachah requires, can he responsibly advocate for treatment that is both compassionate and halachically sound. This need is compounded by the fact that many doctors know a little bit about halachah as well, and a little knowledge can be a dangerous thing.

“There are new ethics in the medical profession,” says Rabbi Lefkowitz, and a founder of Chayim Aruchim, which has sponsored conferences educating rabbanim, doctors, and the community at large on the changing medical landscape. “Doctors will even say, ‘According to your halachah, if the person can’t do anything or make brachos, then he is not really alive.’ Doctors are buying into this new ethical system and are saying ‘this is what I would do if it were my father.’ ”


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