In Life-Or-Death Legal Dispute, Modern Medical Ethics, Jewish Law And Civil Law Clash

As David Stern, 61, an observant Orthodox Jew suffering from a rare neurodegenerative disease, lies conscious and hooked up to a respirator at the Providence Tarzana Medical Center in the San Fernando Valley, the hospital and lawyers for two of Stern’s children are battling to determine whether the hospital should remove Stern from life support, as administrators say they are obligated to do, or perform a life-saving tracheostomy, as Stern’s family demands.

The dispute highlights a conflict at the intersection of modern medical ethics, Jewish medical ethics, civil law as it pertains to the validity of a living will, and the extent to which “quality of life” measures should impact whether a life-saving procedure is appropriate.

In 2011, Stern signed an advance medical directive, two years after he was diagnosed with cortical basal ganglionic degeneration (or CBGD, an incurable and ultimately fatal disease). The directive named Shirit Gold, one of his two daughters, to act as his agent in medical emergencies where Stern would be unable to make his own health decisions, like this one, but it also stipulated that “life-sustaining procedures” that would only “artificially prolong” his life when he’s suffering from “incurable and irreversible condition” should not be pursued.

Gold and her brother, Rayi Stern, argue their father, who became Orthodox in 2003, would never knowingly have signed an end-of-life document that would violate Jewish law. The directive David Stern signed allows for an autopsy, which is forbidden under Jewish law in most cases, and for organ donation, also forbidden in most cases (the directive did not account for the few instances in which an autopsy or organ donation would be permitted under Jewish law).

The family asserts the father could not have understood the contents of what he was signing, and both Rayi and Gold said their father was already two years into his neurodegenerative diagnosis, which has resulted in dementia and extreme loss of motor function, when he signed the directive. “I am 100 percent certain” he didn’t know, Rayi said. “He lived his life as a Jew. He wouldn’t want to end it in any other way.”

“When my dad became religious, my dad never wavered,” Gold said. “I never saw my dad become religious and then say, ‘Oh I like Burger King.’ He took it on 100 percent.”

The family has consulted with rabbinic experts on Jewish medical ethics, including Rabbi J. David Bleich of New York, who asserts that because Stern isn’t in a “persistent vegetative state,” Jewish law demands Stern undergo a tracheostomy, for which surgeons would cut an incision in his windpipe to allow for a breathing tube attached to a permanent respirator. A tracheostomy, Rayi said, could extend his father’s life by several months, or even a year.

Since David Stern was admitted to Providence Tarzana on July 15 for complications stemming from CBGD, he’s been hooked up to a temporary respirator with a tube in his mouth that goes down his throat. This sort of intubation generally is not used for more than two weeks, and risks severe complications from infections as well as potential physical damage to the throat, chest and lungs—risks that increase with time. Four months ago, when Stern was hospitalized with pneumonia, he was intubated for three weeks, which has made it impossible for him to speak or even close his mouth, even after the respirator was removed.

Stern’s family and their attorney, Justin Gold of Oldman, Cooley, Sallus, Birnberg & Coleman, say California law requires that even when a hospital has a legal basis to refuse an agent’s instruction, it is required to preserve the patient’s life while the instruction is in dispute: In this case, they say, Providence Tarzana must either transfer Stern to a hospital that would perform a tracheostomy, or its doctors must do the tracheostomy themselves. “The law cannot be construed to allow the hospital to disregard the agent’s wishes, and while the disagreement is ongoing, refuse to provide treatment thereby resulting in Mr. Stern’s death,” Gold wrote on Aug. 12 to the hospital’s legal counsel of Davis, Wright Tremaine.

But the hospital, in a draft acquired by the Journal dated Aug. 16 of a petition to a State of California Superior Court in Los Angeles, is requesting permission, per the advance medical directive, to remove Stern from the respirator, which would likely result in his death soon thereafter, possibly from pneumonia. “The tracheostomy is an invasive procedure that would provide no medical benefit to Mr. Stern whatever, and instead serve only to artificially prolong Mr. Stern’s suffering and the moment of his death—and therefore performing a tracheostomy is prohibited by his Advance Health Care Directive,” the hospital wrote in the draft of the petition.

On Monday, Aug. 17, Providence Tarzana Medical Center released a statement and said that it “adheres to the law and its own core values to follow patients’ advanced directives” and in complex situations like these will “consult ethicists and other resources to ensure we act appropriately and legally.” Due to federal patient privacy laws, the language of the statement didn’t refer to Stern specifically, but was drafted as a response to the current dispute.

Rabbi Mordechai Einbinder, associate director of Chabad of the Valley in Tarzana, is close with Stern and seconded his family’s belief that Stern would not have signed the directive had he understood its contents. “I have seen David Stern progress to become quite a God-fearing Jew and he would only want to do what the halachamandates,” Einbinder said.

David Stern’s children assert their father currently is very clearly conscious; his eyes are responsive—he raises his eyebrows and blinks and responds to voices and sounds, and they say he recognizes people, has positive facial expressions when visitors come into the room and appears to concentrate when they speak to him.

“The man is alive, and I don’t think anybody else can pull the plug,” Rayi Stern said.


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