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Death by Water

Wed, 01 Jun 2011 00:00:00 -0400

Every sea-born whale is born to drown,
Save those lost few who crush their final breath
On shore, amid the gawkers come from town
To grieve, perhaps, that helpless creature’s death.
And deep below, invertebrates abound
In silent darkness on the ocean floor
To slowly moulder those already drowned,
And silently await the fall of more.
I wonder if they know , he stops to think,
And leans across the bulwark to regret
The death of whales. He finishes his drink
On deck. The deep grants one last cigarette.
So great a creature barely makes a splash.
Thus overboard he flicks away an ash.

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Confessions of a Health Care Rationer

Fri, 28 Aug 2009 00:46:00 -0400

My son summarized my new situation with typical teenage irreverence: “Gee, Dad, after thirty years of providing health care, your new job is denying it.”

It’s a funny line, of course, if somewhat harsh. I’ll probably let him out of his room in a few weeks. But his quip is largely untrue. Its bite comes from the fact that it’s not entirely untrue.

It’s a strange turn of events, really. After all, I have always been opposed to healthcare rationing. But, then, I have always been opposed to aging, too. I have come to recognize the fundamental similarity between the two. They are simply unavoidable evils ( pace Chesterton, Cicero, et al.). The best we can do is to manage them with wisdom and compassion.

It’s a mistake to think of health care as a right. It is not a right; it is a good. Freedom of speech, by contrast, is a right, as is freedom of religious belief. They are privileges that inure to individuals as a consequence of the primordial right, free will. That is why we see them as inalienable. The exercise of these rights does not depend on any action of government, but rather on its inaction. Government may not legitimately interfere with their exercise, but nothing mandates that the government provide us with printing press or chapel.

Health care is different. It is more akin to the other goods which sustain life: food, clothing, and shelter. A well-ordered society exists to protect its members from the unlawful taking of life, and is structured to facilitate its members’ acquisition of these goods.

But health care differs from these other goods: First, health care is not absolutely essential for all people on a daily basis; second, there is an insufficient supply in this world to meet the demand of those who would have it. There is enough food in the world to feed everyone. Hunger and famine are the result of its inadequate distribution, not its absolute dearth. There are enough garments in the world to clothe everyone, and enough roofs to protect all from the rain. Health care, in contrast, is a far scarcer resource. Descartes once remarked that common sense is the most equitably distributed attribute in the world, because we never see anybody who feels he doesn’t have enough. Health care is not like common sense. We often see people who feel they don’t have enough, or at least can’t get enough at a price they’re willing or able to pay.

Until modern times, health care in the United States was distributed as most goods of life are distributed”according to personal wealth. The rich could afford it, and the poor couldn’t. Most economists would exclude this sort of market allocation as a form of rationing by definition. Nonetheless, market allocation is a form of distributing goods within a society, and when there are not enough of those goods to go around, the end-result in the short term is much the same.

Limiting health care’s availability by the criterion of personal wealth rightly offends our sense of the dignity of the individual. Are the lives of the poor not of the same intrinsic value of those of the wealthy? To be fair, it is rare in the United States that poverty alone prevents the uninsured poor from receiving lifesaving intervention in a healthcare crisis. A poor man having a heart attack is not turned away from the emergency room, nor is the poor woman in labor sent away to have her baby at home. (I am not arguing that such enormities never occur, but the fact that such occurrences remain scandalous and newsworthy is a testament to their rarity.) Yet it is equally undeniable that the poor get a lesser share of the preventive care that can maintain health or of the quotidian care for the less dramatic challenges to their health.

There are two major alternatives to the allocating of health care on the basis of personal wealth. Both involve a large number of individuals agreeing (or having imposed on them) that the amount of health care they receive will not be in strict accord to how much they have paid for it. The cost will be distributed over the healthy as well as the sick, even though the benefit will inure only to those who are ill or who need health care to prevent illness. People accept the certainty of a bearable cost to avoid the risk of an unbearable one. But to the extent that these collective programs sever the connection between paying for health care and receiving it, they generate increased demand for health care. The individual feels that he has already paid for health care. When he is sick, or thinks that he is sick, he feels fully entitled to care with no consideration of cost. After all, he has already paid for it, hasn’t he? Given the limited amount of health care that may be bought with the aggregate funds of the group, this untrammeled demand for it must always result in rationing. This is true whether the collective effort is a private insurance plan or a government program. Rationing is inevitable in all collective health care financing schemes .

Rationing must occur , but it need not be admitted . Denying the truth of rationing is more common in government-run health care schemes than private ones, because the government is reluctant to have the people know this ugly fact. Government-run programs, therefore, are more likely to disguise the rationing. This plausibly deniable form of limiting health care is called implicit healthcare rationing , and it assumes many forms. Rationing by termination occurs when patients are discharged from the hospital earlier than is medically optimal. Rationing by dilution occurs when second-best rather than first-best treatment is provided. Rationing by rejection or redirection involves healthcare providers turning away patients whose care will be inadequately reimbursed. This is commonly seen now in the Medicare and Medicaid programs, because those programs reimburse providers at a rate substantially lower than private insurance plans. Perhaps more common than those forms of rationing is rationing by delay, as exemplified by the outrageous amount of time patients in Canada must wait for hip replacement surgery or colonoscopy. The unifying theme in all these forms of implicit rationing is that, without admitting it, they force some patients to forego medical care that they want and are ostensibly entitled to receive.

Private insurance plans sometimes include an element of implicit rationing, but because they are, at heart, contractual agreements between the insurance company and the insured are more likely to ration health care explicitly. The many pages of the healthcare plan describe what is a covered service, which providers will be reimbursed for services, the duration of coverage, the dollar limit, and so on. The advantage of explicit over implicit rationing is obvious: It gives potential customers of the insurance plan information to use when deciding which insurance plan to buy, and gives them clear expectations of services to be delivered. Implicit rationing, by contrast, may have the sweetness of a promise, but is usually succeeded by the bitterness of a promise broken.

All modern societies ration health care. A wise society considers the options and chooses a method of doing so which best conforms to its values and capabilities. Thus we come to the terrible question we would so very much like to avoid: How shall we ration health care? How shall we explicitly ration it? So noxious a question is this, so offensive in its tacit assumptions and implications, that most politicians and wishful thinkers will deny that we need to address it at all. They will argue that the fundamental problem is one of distribution, not one of unmeetable demand. They will argue, with more enthusiasm than evidence, that an emphasis on preventive care would substantially reduce aggregate demand. Some will say we must reduce the role of government; others will argue that we should augment it. If only we will adopt their plan”they’ll say”waste, fraud, and abuse will be abolished. There will be chicken”or at least chicken soup”in every pot, and a vaccine in every arm. People love honesty, but they hate the truth. To frankly acknowledge and address the ineluctable reality of healthcare rationing is not merely to touch the proverbial third rail of American politics; it is to lie across the tracks in front of the onrushing train.

Come, let us speak of unpleasant things. How is health care to be rationed? Who gets the short end of the stick?

There are several rational approaches. An example of attempted explicit rationing of health care in a government-financed system may be found in Oregon. In 1994 Oregon implemented a program that would expand the number of poor people covered by Medicaid, but explicitly ration the care they receive. Oregon chose to priorate the different services that a patient might conceivably want, ranking them in order of how important the procedures were for maintaining life and promoting health. The legislature determined how much it was willing to spend for the health care of the poor, and then the bureaucrats literally drew a line across the list. All the services above the line would be covered by the state Medicaid plan; all those below would not. Thus, the solons of Oregon determined that treatment of veneral warts would be covered by the Oregon Health Plan; treatment of chronic anal fissures would not.

In practice, this procedure did not prove to be the efficient money-saver its developers envisioned. From the beginning, the list did not exclude procedures that were very expensive in the aggregate. The list needed continual updating and adjusting, often on the basis of nonscientific criteria, since the opinions of the taxpayers (which is a nice way of saying political pressure) had to be considered. In the first six years of the program, costs skyrocketed seventy-seven percent. Eventually, the state had to resort to admitting new enrollees to the insurance program on the basis of a lottery.

The political reality of the Oregon healthcare rationing is that it could be imposed by the taxpayers on the recipients of their largesse only because it was not being imposed on the taxpayers themselves. For government to explicitly ration the health care of those who are actually paying for it may be undoable in a democracy. That explains why healthcare rationing in Medicare and Medicaid is mostly implicit rather than explicit. It is noteworthy and instructive that no other state has followed Oregon’s lead in this approach.

An alternative to explicit government mandated healthcare rationing is rationing by private industry. There is one great advantage that private healthcare rationing has compared with government rationing: competition. In the private marketplace, there will be a number of insurers, each with its own criteria and implementation of rationing. A company which is unreasonable or high-handed in its coverage decisions will find that its unhappy customers soon become its former customers. It’s true that millions of Americans have their healthcare plan chosen for them by their employers. But employees, both as individuals and via unions, certainly have an impact on the choice of company health plans. Also, it must be kept in mind that the management of the company is almost always covered by the same healthcare plans offered to the rank-and-file employees.

While a variety of insurers, prices, and plans are available, the comparative shopper for healthcare insurance is still unlikely to find any insurance that does not have rationing as part of its processes; at best, he may find one whose criteria of rationing are more to his liking. It is to those criteria, the proverbial devilish details, that I now turn.

I am a consultant for one of the largest private healthcare insurers in the United States. Because chemotherapy agents are among the most expensive medicines that can be prescribed by a physician, the company wanted an experienced medical oncologist to help manage that expensive resource. When I first accepted the position, I had been worried that I might be pressured to make coverage decisions based on the cost of the medication. I wondered if I would be mensch enough to stand up to such pressure. To my relief, I have never been subjected to that kind of pressure. The pressure I have felt is quite a different one. My supervisors have frequently adjured me of the importance of being consistent in decision making. Since all the members of the health plan are paying premiums for the same insurance, they must all receive equal consideration. The only way to achieve that is by adhering to explicit policies based on sound medical evidence of medical necessity. Medical necessity is our touchstone. It is, frankly, the criterion by which we ration health care. If a service is medically necessary, it is covered. Otherwise, it is not.

The conundrum is surely obvious: What do we mean by medical necessity ? What are the criteria of determining medical necessity”and who decides?

The meaning of medical necessity is easy to state, if hard to pin down. The definition, part of the contract between the insured and the company, is this: services that a medical practitioner, exercising prudent clinical judgment, would provide to a patient to prevent, diagnose, or treat an illness. The definition further requires that such services be in accordance with generally accepted standards of medical practice, clinically appropriate for the patient, not primarily for the patient’s convenience, and not more costly than similar services likely to yield results which are at least as good.

I don’t suppose that I could come up with a better definition of medically necessary, but it is surely obvious that this definition requires heaping measures of interpretation. What is prudent ? What is generally accepted standards ? Requiring that services be medically necessary is unavoidable. Defining the terms is equally unavoidable, but the definition often seems tautological, like loopholes within knots all contorted into a grand Möbius band of potential disputation. The insurance company assembles panels of experts from within the company, academia, and private practice to meet regularly to assess the state of the art for a multitude of diseases and procedures. The panels, in turn, create the policies based on the current evidence. As to who implements the policy, who actually decides what is medical necessity on a case-by-case basis”that, too, is easy to answer: I do. I am the healthcare rationer.

I am not the only one, of course. Like any large bureaucracy we have a large, rational, and, yes, occasionally lumbering system of determining medical necessity. It would be wasteful for the insurance company to have professionals at the highest pay level authorize all these decisions. After all, the vast majority of claims are , indeed, for medically necessary services. Therefore, the initial review of claims is done by nurses or pharmacy technicians. They make their decision based on a carefully vetted, evidence-based checklist of criteria. The majority of these initial reviews end in an authorization for the requested service, and are never considered again within the company. It is important to note that the first-line reviewers have the authority to authorize a service, but not to deny it. If the claim for payment fails to pass the checklist, the first-line reviewer does not deny it, but rather passes it on to a higher level review by a physician.

Before I became a consultant to the insurance company, I shared the cynical view of most harried physicians. I believed that, just as luggage at the airport must surely be handled by behind-the-scenes gorillas who jump on the bags in madcap revelry, so medical claims at insurance companies must be handled by high-school dropouts who make their decisions by consulting articles such as “I am Joe’s Prostate” in well-thumbed copies of Reader’s Digest . Not so. The physicians who do the reviews are, for the most part, still in active practice, and, if not leaders in their fields, are clearly several notches above average. Hiring such qualified personnel is not merely a kindness to the insured members of the insurance plan; it is simply good management. If a company makes too many bad decisions, it will suffer in the courtroom, in corporate boardrooms, and on the floor of the stock exchange.

But the fact that good doctors are making decisions for the insurance company does not preclude disagreement between the insurance company and the providers. These providers of the contested medical services are, for the most part, also good doctors. When there is a disagreement between the two, who is right? We return to the conundrum of determining medical necessity.

On its face, one might think that the question of medical necessity is best answered by the physician who is actually taking care of the patient, rather than one who has never met him and is basing his decisions on a limited amount of information. But that will not do. That thought is one of the many illusory ways of denying the inevitability of rationing. To have the providers determine medical necessity is to have no limits at all on expenditures for health care, since all providers at all times believe (or at least claim) that the service they are providing is medically necessary. To have the providers be the arbiters of medical necessity is to abjure rationing altogether. The insurance company that does that will be very popular”very briefly. Then it will either go bankrupt in short order, or sharply adjust its premiums upward to have its income match its hemorrhaging outflow. If premiums rise enough, people will not buy the insurance. The result will quickly be the most generous insurance policy that nobody can afford.

So the insurance company must ration the health care, and must therefore sometimes disagree with the attending physician as to the medical necessity of the proposed treatment. It does this on the basis of published medical evidence.

This criterion of rationing by medical evidence, like all criteria of rationing, evokes protests from people who do not receive the health care to which they feel entitled. For example, what shall we do about people who have rare diseases? Cancer of the adrenal gland, for example, is a rare malignancy. On theoretical grounds we might feel that it would respond to an expensive drug like Avastin, but no clinical trial has addressed that question. It is such a rare disease that there will never be a clinical trial large enough to prove or disprove the benefit of Avastin in treating it. Are patients who have rare and relatively unstudied diseases never to have access to expensive treatments of theoretical but untested benefit?

Another consideration is that medical evidence is not an all-or-none affair. No cure bursts forth onto the medical world fully formed like Athena from the brow of Zeus. First laboratory or animal models of a disease suggest a line of approach. Then small studies assess the treatments’ toxicity and efficacy in humans. Larger clinical trials are performed only if these early studies are promising. These trials are first reported at meetings before the data are mature. Subsequent reports may apprise clinicians of the progress of the study. Only when the data are mature are they reported in toto, and it is usually a while after that before the new treatment wins FDA approval.

When is the evidence sufficient? Shall we consider the availability of other treatments in making the decision, or weigh the evidence on its own merits alone? There is no one right answer. As a clinician, I may recommend a treatment early in its development, sometimes on little more than a hunch (with the patient’s informed consent), if the patient has few options and a dismal prognosis. Years later I’ll learn whether the choice was right or not. But the health plan also must decide: Shall we authorize this treatment and necessarily restrict another treatment? If so, which one? I remind the reader: Rationing is inevitable. Only the criteria of rationing may vary.

While the application of any standard of explicit rationing must be equitable, at heart the criteria themselves cannot escape some element of arbitrariness. Whether the criteria are age of the patient, life expectancy with or without treatment, cost of the treatment, rigor of evidence, or simply public clamor”rationing everywhere and always means that someone is denied health care which he believes is necessary for his wellbeing and to which he feels entitled.

Imperfect as it is, using the criterion of medical necessity based on medical evidence is likely the most just and practical way of performing the unavoidable and unpleasant task of rationing health care. Implicit rationing is dishonest and procrustean, bluntly mismatching resources and needs. Rationing by age or life expectancy inevitably leads to decision making based on invidious, not to say immoral, comparisons of individual worth. Rationing primarily by cost obviates the fundamental purpose of having health insurance. Rationing by public clamor introduces the injustice of preferential treatment for those with the greatest political clout. The optimist will consider healthcare rationing based on evidence-based medical necessity as the best of all possible ways of doing it; the pessimist will fear that he’s right.

As Congress and the people consider restructuring the American healthcare system, they must keep in mind that rationing health care may not be undeniable, but it is unavoidable. To claim that Congress will devise a new federal healthcare plan that will not involve rationing is like claiming that it will invent a triangle that doesn’t have three sides. Currently, within the private sector of health care, we have a large number of private insurance companies vying for the business of their customers. They ration health care on the basis of evidence-based medical necessity. The Obama health plan, the details of which are still being worked out, will also ration health care. The alternative to that is an accelerated escalation of aggregate healthcare costs. But the single-payer system to which Obama’s plan will lead will have no competitor and no pressing financial incentive to please its customers. No competitor for the single payer means no alternative for the patient. We can reasonably expect that a single-payer system of rationing will be largely implicit rather than explicit, and governed as much by cost and political considerations as by medical evidence. Such a system would likely combine the fiscal responsibility of the Postal Service, the customer friendliness of the Bureau of Motor Vehicles, and the smooth efficiency of the Immigration and Naturalization Service.

You can bet your life on it.

Eric Chevlen, M.D., is a medical oncologist in Youngstown, Ohio.

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The Mystery of the Aleph

Mon, 01 Jan 2007 00:00:00 -0500

The world God made is infinite”or not.
Its essence is of matter”or of thought.
If finite”how much more He could have made!
If infinite”the same too may be said.
A world of matter”should it even be?
A world of thought”it matters not to me.
How wondrous strange, for all that, we are here.
And stranger yet: it stays; we disappear.
In shrinking, God made room for worlds to be.
My God my God, make room in You for me!

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The Case Against Assisted Suicide: For the Right to End-of-Life Care

Fri, 01 Nov 2002 00:00:00 -0500

The ongoing public debate over the legalization of assisted suicide draws participants whose primary concern is not the issue itself but who find it the ideal occasion to advance collateral social initiatives. Thus, as he revealed in the haunting polemic with which he began his notorious public career ( Prescription: Medicide [1991]), Jack Kevorkian was not particularly concerned about the issue of legalized assisted suicide. Rather, he saw assisted suicide as the ideal way to advance his real agenda, the legalization of human vivisection.

The editors of The Case Against Assisted Suicide: For the Right to End-of-Life Care , Drs. Kathleen Foley and Herbert Hendin, are renowned clinicians, researchers, and teachers. And they too—while not otherwise to be compared to the serial mercy killer of Michigan—seem to approach the debate over assisted suicide as an opportunity to promote their agenda. In the case of Foley and Hendin, that agenda is improvement in the palliative care of terminally ill patients. As the comedian says, not that there’s anything wrong with that. Still, there is a significant difference between opposing assisted suicide on deontological grounds and using such opposition to advocate a change in health care policy.

But surprisingly, it is this very weakness (from the purist’s point of view) that gives this splendid collection of essays its strength. None of the essays argues against assisted suicide and euthanasia simply because killing is wrong. Rather, each one points out how legalization of such practices would achieve a goal that is the opposite of the one its supporters claim it would. Speaking concretely, it would yield less relief of suffering, less patient autonomy, corruption of the practice of medicine, and a decline in the quality of palliative care. And then there really is the pesky problem of the slippery slope.

The list of contributors—only a few of them can be mentioned here—reads like a Who’s Who of palliative medicine and medical philosophy. For example, Professor Harvey Chochinov, M.D., Ph.D., of the University of Manitoba and his colleague Dr. Leonard Schwartz discuss the prevalence of treatable depression among the terminally ill. More importantly, they describe the existential factors that lead some to seek hastening of death. They point out that fear of abandonment is a terrible concern of the dying. In this regard, it is worth recalling that assisted suicide has been called “abandonment institutionalized.”

Dame Cicely Saunders is recognized as the founder of the modern hospice movement. Any patient who now enjoys good pain control by taking a sustained-release opioid owes her a debt of gratitude for her discovery of the importance of dosing opioids around-the-clock rather than “as needed” for pain. (The fundamental importance of that discovery is underscored by the fact that it now seems obvious.) She describes how hospice care has obviated the desire for assisted suicide in many patients and how legalizing suicide would “undermine the right for respect and care for a great many vulnerable, already disadvantaged, people.”

Attorney Diane Coleman, president of the disabilities rights group Not Dead Yet, demonstrates how the same society that cannot be bothered to provide the necessary assistance to enhance the lives of disabled people seems to jump to support any disabled person’s request for assisted suicide. Ordinarily a request for assisted suicide from a young woman experiencing a recent miscarriage, impending divorce, death of a brother, and the cancer diagnosis of her mother would be recognized for what it is—the deperate cry of a clinically depressed person. But when that person was Elizabeth Bouvia, “confined” to a wheelchair, a legion of lawyers leaped to secure her right to suicide. “All they see is the wheelchair,” as a disabled friend of mine once remarked. Coleman notes the contempt for the disabled that is inherent in laws that would allow assisted suicide on demand.

Assisted suicide is currently legal in Oregon, and its moral equivalent, euthanasia, is now permitted in Holland. Does the real world experience match the dire predictions of its opponents? Sadly, it does that and more. In an earlier book, Seduced by Death: Doctors, Patients, and the Dutch Cure (1996), Hendin described how the actual witnessing of the effects of legalized euthanasia, far more than any theoretical consideration, persuaded him of its pernicious impact. In this collection, he updates his observations. It is more than coincidence that palliative care facilities in Holland are among the worst in Europe. Hendin credits Derek Phillips, a sociologist who has lived and worked in the Netherlands for thirty years, with the insight that the Netherlands is a country in which “indifference masquerades as tolerance.”

N. Gregory Hamilton, Clinical Professor of Psychiatry at the Oregon Health Sciences University, describes the impact of legalized assisted suicide in Oregon. It has led to a “culture of silence,” in which even the censure of doctors assisting in the death of their patients has been forbidden by state law. The annual reports of the Oregon Health Department are designed to obscure the realities, pressures, and ambivalences of the people who die by assisted suicide. The only source of information for the report is the very doctors who feel the procedure is justified, and who are unrestrained by the long-forgotten oath “to give no deadly medicine to any one, even if asked, nor to suggest any such counsel.”

Foley and Hendin conclude their collection of essays with a call to “change the culture.” They want doctors to do a better job of recognizing and treating depression in the terminally ill, and of understanding the ambivalence that so often stands behind a call for hastened death. They call for increased resources to better integrate the disabled into the community. They would have the palliation of the Medicare hospice benefit extended beyond its currently defined beneficiaries (terminally ill people expected to live six months or less). Indeed, care of terminally ill people is currently in need of such improvement that there are few aspects of it that would not benefit from a major overhaul.

If severe pain were uncontrollable, that would be a tragedy. That it is controllable, but is so seldom properly treated, is not a tragedy but a scandal. The same is true of other distressing symptoms that may plague us in the final months of life. The proper response to this scandal, as amply demonstrated by this book, is not to kill the one in distress. Rather than abandoning him in his anguish and terror, we should be present with him in his suffering—is that not, after all, what the word “compassion” means? The dying deserve the latest scientific palliative interventions, and also the venerable recognition of the intrinsic value of every human life.

Unfortunately, given its frank title, this volume is unlikely to be read by many supporters of assisted suicide. That’s a shame, because the book might very well change their opinions. This book is highly recommended to anyone interested in the question of assisted suicide—and to anyone who expects ever to suffer from a fatal illness.

Eric Chevlen, M.D., is a pain and palliative care specialist and coauthor, with Wesley J. Smith, of Power Over Pain: How to Get the Pain Control You Need (2002)

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Free to Die

Sun, 01 Aug 1999 00:00:00 -0400

“M anslaughter, I could understand how they would arrive at that. But murder? This? They must have been an astonishingly cruel jury!” Jack Kevorkian told reporter Jack Lessenberry. “You tell them I said this,” he went on. “I don’t want to be a martyr. I want to be free. And that’s why I am doing this, and you should print that. I need to be free to die.”

Free to die. Curiously, when Franklin Roosevelt listed his four freedoms, the freedom to die somehow escaped his attention. But in Jack Kevorkian’s cri de coeur, uttered on the threshold of the imprisonment that will likely prove to be––ah, the delicious irony!––a life sentence, he has revealed the secret passion that undergirds both his own warped career and that of the euthanasia movement itself.

Kevorkian has spent his life in morbid fascination with death. Long before coming to public attention, he had earned the sobriquet “Dr. Death” from his colleagues in postgraduate hospital training for his habit of staring with an ophthalmoscope into the eyes of patients as they were dying. (At the moment that the heart stops beating, the blood in the easily visualized retinal arteries stops moving. Then, agonal spasms of the arteries divide the column of blood into segments often called boxcars, because the segments of blood move slowly along their track as the site of arterial spasm shifts along the artery.) In general, medical house staffs are fairly tolerant of morbid curiosity, and will justly attribute a few such observations to the needs of medical training. But they can recognize a voyeur when they see one.

Kevorkian’s occasional forays into academic publication all reflect his abiding fascination with death. Typical of the lot is a 1985 article in which Kevorkian describes a variety of experiments that have been conducted on executed humans. In one particularly disquieting section, he speculates at length concerning how long consciousness may persist after beheading.

Even his artwork, painted with a surreal exactitude, is but one long memento mori (several examples of his artwork may be found at www.kevorkian.com). One representative piece, entitled “Nearer My God to Thee,” shows a terrified naked man, digging his nails into the walls of a stark chamber in a vain effort to prevent his falling into the yawning abyss beneath him. Kevorkian’s description of the painting may tell as much about his ideas as does the image itself:

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Discovering the Talmud

Sat, 01 Aug 1998 00:00:00 -0400

Consider the book we are talking about. It is written in two foreign languages, one of which is native to but one small country, and the other now spoken nowhere on earth. It is the product of a minority culture within a vast and now crumbled empire. The text itself is ancient, handicapped by scribal errors and emendations of hostile censors over the centuries. Its subject matter is often abstruse, ranging from such exalted topics as the contents of the phylacteries worn by a decidedly non-corporeal divinity, to such humble ones as the direction a person should face while defecating. Its logic is precise, indeed sharply exacting, but idiosyncratic. There is no obvious order to its discussion, it has neither index nor table of contents, not even punctuation, and it is riddled with unexplained abbreviations. Oh, yes, one other thing: there are no vowels.

The book, of course, is the Babylonian Talmud ( Talmud Bavli in Hebrew). And despite all the difficulties described above, the Talmud has been the daily reading of thousands of people for fifteen hundred years. During two-thirds of that time, the book existed only in manuscript form. For centuries it was commonplace for scholars to scrimp on food in order to afford a tractate of the Talmud, and bequeathal of the book was often explicitly mentioned in their wills. Now, the ongoing publication of an important annotated new translation* provides an occasion to review not only this translation, but briefly to review the role of Talmud in Jewish life.

Jewish tradition teaches that the Torah (the Pentateuch) was revealed by God to Moses at Mount Sinai. The tradition allows no room for human mediation in the content of this revelation. Not only was the revelation word for word, but, as Jeffrey Satinover emphasizes in Cracking the Bible Code , it was letter for letter. Consequently, every word, and even every letter, has the plenitude of meaning that only a divine author can endow.

The meaning of the text, continues the tradition, was also revealed to Moses, and was passed on orally from him to Joshua, and thence to the Elders, to the prophets, to the Men of the Great Assembly, etc., down to the current time. The Oral Law is self-evidently necessary. When God commanded us to “take the fruit of goodly trees” (Leviticus 23:40), surely He would let us know which trees were the subject of that commandment. When He commanded us to do no work on the Sabbath, surely He would tell us what constitutes work. He instructed us to slaughter our animals “as I have commanded you” (Deuteronomy 12:21). Yet the Torah includes no written commandment concerning the method of slaughter to correspond to this reference. The ultimate Promise Keeper said He had (already) commanded us. Doubtless, He did. These details and more are the subject of the Oral Law.

Not surprisingly, the Talmud itself discusses the importance of the Oral Law. In Tractate Shabbos 31a, we read of an incident involving the great sage Hillel (first century b.c. e.) and a gentile who sought conversion to Judaism with the stipulation that he would be bound only by the tenets of the Written Law, and not the Oral Law. The gentile had already been rebuffed by a colleague of Hillel, since a convert must accept both aspects of Torah, or be rejected. But Hillel felt that the gentile’s rejection of the Oral Law was due to ignorance rather than conviction, and he agreed to instruct him with intent to conversion. The first day, Hillel taught the gentile the Hebrew alphabet, starting “ aleph , beis , gimmel , dalet ,” etc. But when the gentile returned for his second lesson the next day, Hillel reversed the names of the letters. The would-be convert protested, “But yesterday you did not recite it to me this way!” To which Hillel replied, “So you see, then; are you not relying upon me to recognize the letters of the alphabet? Rely on me also, then, about the veracity of the Oral Law.” Ultimately, even if it is only at the level of the pronunciation of the letters and the meaning of the words, there must be some oral tradition underlying our understanding of any written text.

An oral law fulfills needs that a written law cannot, just as whispered words of love convey a meaning greater than ink on paper. It is necessarily dialogical, since there can be no oral transmission without an aural reception. The oral tradition cannot be conveyed without a personal relationship between teacher and disciple, and inevitably the conduct of the master in fulfilling the law becomes part of the teaching too. One disciple described in the Talmud even hid under the bed of his master, the better to learn from the master how the Torah requires a man to treat his wife with tenderness. An oral tradition has a vivacity and vibrancy that a written text cannot achieve. Thus, from the time of its revelation until the second century c.e., despite widespread literacy among the Jews, the Oral Law remained just that. To reduce it to writing would indeed have been to reduce it. To paraphrase Edmund Burke, if there was no reason to write it down, there was a reason not to write it down.

But during the Roman occupation of Israel”an occupation arguably more hazardous to the Jewish people than the Nazi Holocaust, because it sought the spiritual, rather than merely the physical destruction of the Jewish people”there was a genuine threat that the mesorah , the chain of tradition, would be irrevocably broken. In response to this unprecedented threat, Rabbi Judah the Prince organized and wrote down a large part of the Oral Law. This text became known as the Mishnah (Hebrew for repetition, or instruction).

The Mishnah became the subject matter for academies of study in the occupied territories (which the Romans called Philistia”Palestine”after its former occupants, the Philistines, as an insult to the Jewish inhabitants) and in the Babylonian diaspora. Each academy produced its Gemara (Aramaic: completion), an elucidation and commentary on the Mishnah. Thus were created the Palestinian and Babylonian Talmuds. The Babylonian version took a hundred years longer to complete, and is universally recognized as the more polished and scholarly of the two texts.

The Talmud is not merely an explication of the written Torah. It also includes philosophical speculation, discussion of etymology, recipes for medicinal remedies, anecdotes concerning biblical figures, astronomical observations, and even advice concerning one’s sex life.

Insults, too, may be found in the Talmud. It is telling that the object of the insult is usually the antagonist’s learning or his teacher, just as modern insults often target the antagonist’s appearance or his mother. In both cases, the chief pride and the closest interpersonal relationship are the tenderest targets for attack. One scholar quoted in the Talmud dismissed the reasoning of the other with a brusque, “Your teacher was a reed cutter in a swamp.”

All this and more is the subject matter of the Talmud. After all, what can be excluded from the Talmud, if it is a reflection of the revelation of the One who created us and the universe we live in?

The most important function of the Talmud, however, the feature which makes its study a religious rite, is that it seeks to establish the halakhah, the details of the divinely revealed law that govern the life of a Jew. Thus, it is second only to the Bible itself in authority. This is the reason the Talmud has been the subject of intense study by every generation of Jews from before its ink was dry until the present day.

The Jew-hater, too, knew the importance of the Talmud to Jewish life. When they could not destroy the Jews themselves, the enemies of the Jews turned against the Talmud. Public burnings of the Talmud were ordered in 1242 (Paris), 1553 (Rome), 1559 (Cremona), and 1757 (Poland). After the fall of the Nazi and Soviet regimes, the Talmud is no longer the target of destruction by political authorities. Now the Gordian text itself is its own chief hurdle.

The world of the Talmud is one of razor-sharp analysis. The following example may suffice to give a flavor of it. The Talmud describes the thirty-nine categories of labor that are forbidden on the Sabbath. These are derived from the types of activity needed to build the portable Tabernacle used by the Hebrews in the desert after their miraculous escape from bondage in Egypt. One of the forbidden labors is harvesting, since dyes required for the curtains and skins were of herbal origin.

The Torah explicitly states that a purposeful violator of the Sabbath will be punished differently from one who violates the Sabbath inadvertently. The distinction between willful and accidental violations of the law is a concept enshrined in Western law, too, so this does not seem strange to us. But the subcategorization of inadvertence in Talmud is so refined that there literally is no vocabulary in English to correspond with the Talmudic analysis.

For example, one may violate the Sabbath inadvertently because he did not realize that the day was the Sabbath. Alternatively, he might have known that the day was the Sabbath, but had been unaware that harvesting was forbidden on that day. Yet again, it is possible that he knew it was the Sabbath and that harvesting was forbidden, but was unaware of the severe penalty that is meted to one who intentionally violates the Sabbath; this too is a type of inadvertence.

Perhaps he meant to lift up from the ground a plant that was not attached to the soil (this is clearly allowed) but by negligence his hand slipped and he plucked a different plant from the soil. Another variant of inadvertence: he intended to violate the Sabbath by harvesting a particular plant, but carelessly harvested one he did not want. This, too, is not exactly willful violation of the Sabbath.

Finally, the Talmud discusses the case of a Jew whose violation occurs because, although he knows of the existence of the Sabbath, he is unaware that work is forbidden on the Sabbath. The Talmud asks, in what sense, then, can we say that he knows that the Sabbath exists? The reader who wants to know the answer to that question has cravings that a mere essay cannot fill. I advise him the same way Hillel concluded his famous advice to the Roman who asked that he teach him the Torah while standing on one foot: “That which is hateful to you, do not do to your fellow. The rest is commentary.” Then Hillel added, “Now go and learn.”

The sense of man standing before his Creator suffuses the Talmud. It may go unstated for lengthy passages, but it underlies the whole work as surely as the atomic theory underlies all chemistry and physics. God has created man, and given him a blueprint upon which to base his relationship with his Maker and with his fellows. The rabbis of the Talmud were able to develop a completely integrated legal and philosophical system based on the Torah and the Oral Law, for they needed no instructions other than the original “user’s manual.”

Adin Steinsaltz is an Israeli scholar who is also producing an English translation of the Talmud. Although I prefer the Schottenstein Edition, the Steinsaltz Talmud includes a marvelous introductory volume that is of value to English-speaking students using any translation. In an earlier work, The Essential Talmud , Steinsaltz described the Talmudic mindset underlying some of its laws that may strike us as strange:

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Strained Mercy

Thu, 01 May 1997 00:00:00 -0400

Seduced by Death: Doctors, Patients, and the Dutch Cure
By Herbert Hendin.
Norton, 256 pages, $27.50.

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Mock Medicine, Mock Law

Sat, 01 Jun 1996 00:00:00 -0400

The first thing the coroner noticed was the bright pink blush of the cheeks—the artificial pink that only carbon monoxide gives its victims. And in Oakland County, Michigan, death by carbon monoxide poisoning suggests only one perpetrator: Jack Kevorkian.

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