MARK WASHOFSKY
Against this reasoning, we might propose two criticisms. The first objects to Feinstein’s construction of the legal situation created by the patient’s admission to the hospital. When he writes that the patient, once treatment has begun, enjoys a lien(shiabudim) on the provider’s medical services, he assumes the existence of a particular kind of contractual relationship, a two-party agreement that establishes mutual obligations. The patient therefore“owns” the life-sustaining resources; and, according to the principle established in the Bava Metzia passage, he need not give them up. Yet we are not constrained to go along with him here. It might be contended, and more persuasively, that the patient does not“own” or enjoy a mortgage on medical resources that the community provides to him or her in fulfillment of its duty to save life. We, the community, own the resources; they are not the property of any individual. If so, the position of R. Akiva does not apply to our case.?! In this view, the admission of a patient to the hospital does
not necessarily constitute a legal commitment to continue providing care to that patient, come what may, no matter how terminal his or her condition, till the bitter end; rather, we commit our resources to the patient on condition that they may be redirected to others if and when the medical situation warrants such a step.
The second criticism is more fundamental, reaching to the very essence of Feinstein’s analysis and conceptual process. Why, it asks, should we think about the problem of patient selection as one of the comparative evaluation of persons? True, it makes a certain sense to define this issue as a choice between individuals, a determination of who shall live and who shall die, which lends itself quite nicely to the ideas raised in B. Sanhedrin 74a and B. Bava Metzia 62a. Yet we might just as easily configure this issue in terms of another category: our duty to save life, to heal. That is to say,
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