Death is a matter of life. And sometimes death again. The time of death is an issue which has ramifications in life. It is also a matter of interpretation. One death in particular recently needed judicial review and involved religious and secular principles. Ultimately death had to be interpreted in a court of law, in a State court in Brooklyn, New York, and required an analysis encompassing medical, philosophical and religious perspectives.
It took more than a year to determine the legal time of death of Yechezkel Nakar. Nakar lived in Borough Park. He collapsed on May 31, 2017 and never regained consciousness. However the issues involving his end of life revolved around when his life ended—and who was responsible for his care. Nakar was an observant Jew in life, but in the end it was fought in front of a New York State judge with rabbis on one side, and medical doctors and insurance company lawyers on the other.
Nakar was a 68-year-old man at the time of his demise. He was rushed to a hospital and placed on life support. Nakar was given ordinary care but it soon became apparent to his treating doctors that he was not going to recover. His medical providers sought permission from his family to remove him from the respirator that was keeping Nakar alive. They did not give an immediate answer, but rather asked for an opportunity to consult clergy. Once doing so, their rabbis said that under their interpretation of Jewish law, once an individual is on life support, it is against halacha to remove the support when the life sustaining machinery will be the direct cause of death.
There was a corresponding oppositional issue, however. Nakar’s treating physicians had determined that the collapse resulted in a stroke which caused a cessation in brain function. Under New York State law, brain death is adequate for a judge to call death—even if the patient’s heart is functioning. In fact, for the purpose of transplanting organs, it is necessary that brain death is adequate, even if the heart is mechanically being maintained. This is a standard that has some corresponding authority in halacha since Rabbi Moshe Tendler’s published opinion in 1968.
In any case, there is still some controversy, and certainly civil law requires life sustaining measures—unless a patient has a duly executed living will, or alternatively if a designated family member with legal authority says otherwise. And that is where Nakar became a case not simply involving a patient, but a principle.
Nakar’s family consultation with their rabbi was not an acceptable final answer for the physicians at New York Presbyterian Hospital. Without notifying the family, they took a test of Yechezkel’s brain function—and determined there was none. As a result, the doctors issued a death certificate.
Although he was declared dead, because Nakar’s family refused to sign off- he remained on life support—even if technically dead. Nakar remained in that state for three more weeks until he ceased heart function, thus marking death a second time. In the meantime a practical question arose: Who paid for Nakar’s life support and additional medical care during the intervening three weeks?
The issue came up to Judge Devin Cohen. He had to deal with competing values. On the one hand there was the religious lobby who argued that death, like life, is a matter of religious interpretation. On the other hand, there is the medical faction which maintains that it is up to licensed doctors to determine the moment of death.
Judge Cohen had to weigh the values of religious autonomy against the precedent that for at least a century the law recognizes the exclusive authority of medical doctors to determine the point where a human ceases to live.
With respect to Nakar, Judge Cohen had to consider the date of the loss of consciousness. The hospital personnel said they tried to contact the family. However the date they said they sought input whether coincidentally or not occurred on the holiday of Shavuot. When the hospital did not hear from the family they pulled life support.
Judge Cohen determined that the family had no practical opportunity to challenge the pulling of life support. He noted that there were First Amendment Freedom of Religion principles to consider. Even if some Jewish authorities believe that death exists with the cessation of brain function, the family had a right to rely on their rabbi’s interpretation that it is the lack of a heartbeat that determines the time of death—Nakar’s heart function ceased three weeks after his brain.
Understandably, Nakar’s insurance company did not want to pay for the medical bills after his physician said he would not recover. Cohen noted in his decision that since Nakar’s family was not really given an opportunity to object to the hospital’s unilateral decision to pull life support,, the hospital and not Nakar’s heirs, was responsible for that decision.
There are some who question Judge Cohen’s wisdom in adjusting the precedent that doctors have exclusive control over marking death. But Judge Cohen’s opinion states that it is necessary to balance the interests of the value of medical transplants and medical autonomy with that of the patient and his family. Even if there is no definitive point of life and death, like the beginning of life, the ending of life is a philosophical construct. In this case, an Orthodox family, where the doctors made their determination to remove life support on Shavuot, a religious holiday—they refused to take the family’s religious considerations in the determination.
That is not to say that religion should control the life events either,but it should not be ignored. That was the determination of Judge Cohen. The family was not ever given a chance to object since, ironically, they were participating in the observance of a religious holiday. The medical and insurance lobby might not like that families might have something to say about end of life care—but in a nation built on religious freedom, religious principles matter. For the end of life, and the beginning as well.
By Stephen Loeb
Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected]
