To Be or Not to Be: The Convergence of Halacha, Law and Medicine in Matters of Death and Dying

Rabbi Zvi Ausch, Yoshev Rosh Bais Horaah d' Karlsburg, a leading authority on health care issues in Jewish law and a rabbinic advisor to Chayim Aruchim, took the witness stand.  He stated that based on the medical testimony in this case, the stomach tube should be inserted because it would likely prolong the life of the patient.

Lawyers Learn About End of Life Cases

A mock trial with top legal and medical experts in end-of-life health care disputes was attended last week by over a hundred attorneys and others who wanted to learn more about this type of litigation.  The event, sponsored by Agudath Israel of America Legal Support Services, J-LINK (a pro bono legal referral network), and Chayim Aruchim (an Agudath Israel project dedicated to culturally sensitive end of life counseling and advocacy), was hosted at the midtown office of the prestigious international law firm of Debevoise and Plimpton.

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Lawyers watched with rapt attention as leading litigators sparred, interrogated expert medical witness and a rabbinical expert in Jewish law, and gave impassioned speeches on behalf of their “client”, all under the supervision of a real judge with experience in these matters.

The purpose of the event, entitled “To Be or Not to Be: The Convergence of Halacha, Law and Medicine in Matters of Death and Dying”, was to sensitize all those attending to this sort of litigation and provide enough information so that those interested in taking on such cases directly will have the know-how to do so.  As Mordechai Biser, General Counsel for Agudath Israel of America, explained, “we live in an era in which cost-cutting in hospitals is now having a major impact on the health care provided to patients nearing the end of life, and we are seeing a shift away from the concept of patient autonomy toward the position that medical professionals should have the legal authority to make ethical and moral decisions regarding whether to provide care to patients at high risk of dying. The new ideology of “quality of life” has also resulted in an increase in disputes within families over what health care decisions should be made for those no longer capable of communicating their wishes. We are thus starting to see a sharp increase in litigation over these issues as society veers away from the traditional perspective of the sanctity of human life.   Members of the Agudath Israel of America legal network have been involved in a number of high profile cases in which the question of whether to provide a patient with a feeding tube or other life support has been battled out in courtrooms, and we wanted to reach out to more attorneys to help create a cadre of lawyers ready to take on more life and death cases in the future.”

The law firm of Debevoise and Plimpton stepped forward to host the workshop.  A team of lawyers at Debevoise, including Jonathan Rikoon, Mordechai Serle, and Louise Yang, spent untold hours developing the legal briefs and other material needed to present the issues clearly to all participants.  Working together with Agudath Israel, they reached out to top legal and medical experts to secure their participation, and to plan all details of the mock trial so that those attending would gain the utmost from the seminar.

Mitchell Silk, a partner in the international law firm of Allen and Overy and Chairman of the Executive Board of Agudath Israel of America Legal Support Services, opened the evening by explaining that this was the second in a series of such seminars for attorneys (the previous one was on child custody law).  The mock trial idea was Mr. Silk’s brainchild and he expressed the hope that attorneys attending would be interested in attending follow-up nuts and bolts legal training workshops to learn hands-on from top practitioners how to handle these vital cases.

Jonathan Rikoon, an estates and trusts attorney and partner at Debevoise and Plimpton, served as moderator and also as counsel for one of the parties.  He outlined the “facts” of the case, which involved an elderly patient with Alzheimer’s disease who was conscious but could no longer communicate his wishes.  The patient’s designated health care proxy had rejected the treating physician’s recommendation that the patient have a stomach feeding tube inserted to enable him to receive proper nutrition, and the patient’s children, both observant Jews, brought the action to court to compel insertion of the stomach tube.

Judge Martin Ritholtz, who sits on the New York Supreme Court in Queens County, and who presided over a very similar case (In Re: Borenstein) and issued a landmark decision in that matter, ran the mock trial and interrogated both attorneys and expert witnesses.  Mark J. Kurzmann,  Partner, Kurzmann Law Offices, an attorney with extensive experience in handling end of life disputes who is often called upon by Agudath Israel for help in such matters, represented the patient’s children who wanted the feeding tube inserted.  He spoke passionately about how the case was a matter of life and death for the patient.  Mr. Rikoon countered that his client, the patient’s health care agent, did not want to kill the patient, but was opposed to the stomach feeding tube being inserted to replace the nasal feeding tube that was already in place.  

Both sides called doctors with extensive experience in these cases to take the witness stand.  He described the pain that insertion of the tube causes the patient and the risks of aspiration, choking, and pneumonia that could develop.  Dr. Harold Bronheim MD, Professor of Psychiatry and Medicine, Board Certified in Medicine, Psychiatry, Geriatrics, Psychiatry of the Medically Ill, and Pain, spoke on behalf of the hospital, and the health care agent argued that the patient could survive on a nasal feeding tube, and that the health care proxy appeared to be carrying out the patient’s wishes.

Rabbi Zvi Ausch, Yoshev Rosh Bais Horaah d' Karlsburg, a leading authority on health care issues in Jewish law and a rabbinic advisor to Chayim Aruchim, took the witness stand.  He stated that based on the medical testimony in this case, the stomach tube should be inserted because it would likely prolong the life of the patient.

A question and answer session and reception followed the mock trial.  Those interested in obtaining a  DVD  video of the mock trial, for which Continuing Legal Education Credits are available, should contact Mordechai Serle at Debevoise and Plimpton, phone (212)909-6763.  Those interested in attending future seminars and/or the “nuts and bolts” follow up workshop for attorneys on end of life cases, should contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Mordechai Biser concluded, “we thank all of those who worked hard to put together this very impressive program.  The event successfully provided all attendees with a solid understanding of the basic legal issues and arguments involved in these life-and-death cases, and it is our hope that as a result, more attorneys will be interested and able to take on such cases.”

Mark J. Kurzmann,  Partner, Kurzmann Law Offices, an attorney with extensive experience in handling end of life disputes who is often called upon by Agudath Israel for help in such matters, represented the patient’s children who wanted the feeding tube inserted

“To Be or Not to Be: The Convergence of Halacha, Law and Medicine in Matters of Death and Dying, ”a partial view of the crowd.

Judge Martin Ritholtz, presiding over the case

Dr. Leon Zacharowicz, MD MA, Diplomate, American Board of Psychiatry and Neurology, and someone who has been involved deeply in actual end of life cases and has appeared in court as an expert witness in such matters, explained that the dangers of keeping a patient alive with a nasal feeding tube.

“To Be or Not to Be: The Convergence of Halacha, Law and Medicine in Matters of Death and Dying”, a partial view of the crowd.

Dr. Harold Bronheim MD, Professor of Psychiatry and Medicine, Board Certified in Medicine, Psychiatry, Geriatrics, Psychiatry of the Medically Ill, and Pain, spoke on behalf of the hospital.  He argued that the patient could survive on a nasal feeding tube, and that the health care proxy appeared to be carrying out the patient’s wishes.

“To Be or Not to Be: The Convergence of Halacha, Law and Medicine in Matters of Death and Dying”a partial view of the crowd."

Jonathan Rikoon, an estates and trusts attorney and partner at Debevoise and Plimpton, served as moderator and also as counsel for one of the parties.

Jonathan Rikoon, an estates and trusts attorney and partner at Debevoise and Plimpton, moderator of the session.

Rabbi Zvi Ausch, Yoshev Rosh Bais Horaah d' Karlsburg, a leading authority on health care issues in Jewish law and a rabbinic advisor to Chayim Aruchim, took the witness stand.  He stated that based on the medical testimony in this case, the stomach tube should be inserted because it would likely prolong the life of the patient.

 

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