Key words: Doctor, patient, danger, physician obligation, pikuach nefesh
May a doctor take a break from his daily routine? This question was posed to Rav S.Y. Elyashiv by a rabbi whose father was a doctor.1 The doctor, when summoned at his home at night or during his free time, sometimes refused to treat these patients, because he sensed that if he interrupted his rest and helped those patients now, he would be unable to function properly in his role as a physician the following day. Although in such instances he turned away patients, nevertheless, the words of the Shulchan Aruch, which compares a doctor who does not assist the ill to a murderer, weighed heavily on his consciences.2 Was he allowed to send them to a different physician, or is it necessary for a doctor to tend to whoever arrives at his door, at any hour? Under what circumstances may a doctor tell a patient to seek help elsewhere?3
Before answering these questions it is necessary to understand the underlying roots of the physician's obligation, as well as the extent of that obligation. The purpose of this paper is to explore those areas.
The Torah gave permission to a doctor to heal, it is a mitzvah, and it is in the category of pikuach nefesh (saving a life). If one refrains from it, he is considered a murderer. This is true even if there are other doctors to heal the patient, because a person is not privileged to be healed through everyone (shelo min hakol adam zoche lehitrapot).4The Tzitz Eliezer explains the reasoning behind the dictum "a person is not privileged to be healed through everyone", based on the Gemara (Avodah Zarah 55a) that when Heaven decrees an illness upon a person, it simultaneously decrees that he will not recover until a certain day and time, with a distinct medication and only by a specific doctor.5 Therefore, only a particular doctor is able to effect his restoration to health.
The Prisha6 wonders why the Shulchan Aruch7 calls the physician's obligation a mitzvah. The Gemara, quoting Rav Yishmael, learns the pasuk "verafo yerape" (Shemot 21:19) as giving permission for someone to act in the healing process, but not as requirement to do so.8 The Prisha elucidates that once it is established that it is not forbidden to engage in medical treatment, it automatically falls under the rubric of pikuach nefesh, where one is obligated to intervene to save the life of another.
The question now remains, what mitzvah is a doctor fulfilling when attending to a sick person?
1) The Rambam states that the obligation to heal comes from the pasuk "vehashevoto lo" (Devarim 22:2), the requirement of returning lost objects to their owners.9
2) Both the Minchat Chinuch10 and the Maharsha11 comment that once the Torah includes restoring a person's health in the charge of returning lost objects, the negative command of "lo tuchal lehitalem" (Devarim 22:3), which prohibits one from ignoring lost articles, should be operative as well.
3) The Rambam further states that any one who has the ability to save someone's life and does not violate the prohibition "lo ta'amod al dam re'echa" (Vayikra 19:16), idly standing by while another Jew is in danger.12
4) The Ramban understands the pasuk "vechai imach" (Vayikra 25:35), which refers to aiding a poor person, as a positive mitzvah that necessitates helping another Jew survive. This would include the requirement of saving a life.
5) The Tzitz Eliezer, based on the Ramban in Torat Ha'adam, indicates that the commandment "ve'ahavta lere'acha kamocha" (Vayikra 19:18), which requires a person to treat his fellow Jew in the same way as he would himself, obligates a doctor to involve himself in caring for patients, even in a non-life threatening situation.13
In Beit Yosef (C.M. 426), Rav Yosef Caro cites the opinion of Hagahot Maimoniyot who brings a story from the Talmud Yerushalmi (Terumot 8:4). Rav Imi was captured and was in a situation of certain death. Rav Yonatan gave up hope for his safe return and decided to take no action, whereupon Reish Lakish volunteered to go save him, saying, "I will either kill or be killed." The Hagahot Maimoniyot concludes, based on this narrative, that one is actually obligated to risk his life in order to save someone who faces a certain death. (chayav lehachnis atzmo besafek sakana lehatzil chavero mevaday sakana).
The Tur (ibid.) quotes the Gemara in Sanhedrin (73a), which says that if a person is drowning or is set upon by wild animals or thieves, a bystander is responsible (chayav lehtzilo) to save him because of the maxim "lo ta'amod", He also brings the Rambam (Hilchot Rotzeach 1:14), who slightly modifies the words of the Gemara by stating that one is obligated to intervene only when he is able to save the person in danger (yuchal lehatzilo). This discrepancy is pointed out by the Bach (ibid.) to demonstrate that whereas a cursory reading of the Gemara's statement might compel a person to act regardless of the possible dangers to himself because there is always a remote possibility that he might be able to aid the victim without injury to injure himself, the Tur uses the Rambam's statement to illustrate that a person would not be forced to place himself at physical risk in order to rescue someone else.
The Sefer Me'irat Ainaim (ibid.), mentions the Beit Yosef, that one is obligated to enter a dangerous situation to attempt to save another, and notes that although Rav Yosef Caro mentions the opinion of the Hagahot Maimoniyot in his commentary on the Tur (Beit Yosef), he does not codify this opinion in the Shulchan Aruch (his work on normative halacha), presumably because neither the Rif, Rambam, Rosh, nor Tur cite this theory, either. The Pitchei Teshuva (ibid.) refers to an Agudat Aizov that illustrates that the Talmud Bavli disputes this ruling of Talmud Yerushalmi, and it is due to this contention that none of the halachic codifiers mention it as normative Jewish law. In the interest of brevity, suffice it to say that accepted halachic opinion is that one is not required to place himself in a perilous situation to aid another Jew who is in definite danger.14
Now that we have established that normative halacha does not expect someone to place himself at risk to save others, we might be inclined to answer our original question, is a doctor permitted to refuse patients, by simply stating that working all the time will clearly put the doctor in physical danger.15 Rav Elyashiv declares that this alone would not suffice to exempt a physician from tending to the sick. He reasons that if this is the sole dispensation, then a doctor would constantly have to weigh if skipping a meal or sleeping a little less, would actually harm him to the extent that he would be in danger. If the doctor feels that missing a meal, or sleeping a few hours less would not make him ill, he would be required to care for the patients.
A similar idea is advanced by Rav Shlomo Kluger in the Chochmat Shlomo (C.M. 426). The order to return a lost object (vehashevoto lo), has a dispensation of "vehitalamta mehem", that on occasion a person is exempted from returning lost things. For instance, if he would have to embarrass himself (zaken velo lefi kvodo) in the process of retrieving the object, the Torah allows him to look away" and not return the item to its owner. Rav Shlomo Kluger posits, since the mitzvah to rescue another is derived from the command to return misplaced object, if a person would have to disgrace himself to save a life, he would not be obliged to do so, from this same dispensation of "vehitalamta mehem". He also says that we need not be concerned with the dictum of "lo ta'amod", because it would not apply independent of "vehashevoto lo".18
If, as these Achronim hold, the mitzvah of "lo ta'amod" and "vehashevoto lo" always function together, and in a case where one is exempted from "vehashevoto lo" there would be no obligation of "lo ta'amod", because the entire basis of lifesaving originates from returning lost objects, then it might be possible to say that if a doctor is eating or sleeping in order to renew his energies to treat other patients, he is in the category of one who is occupying himself with a mitzvah, who is then exempt from engaging in a different mitzvah (haosek bemitzvah patur min hamitzvah).19 If this is true, a doctor would not only be allowed to refuse patients, but obligated to do so!
Rav Elyashiv strongly refutes this idea. He says it is a well known concept in the Torah that nothing stands in the way of pikuach nefashot, other than the three cardinal sins. According to the conclusion reached above, it would be possible to say that if one was taking his lulav and etrog on Succot, not only would he not have to help, but he would be forbidden to help someone who is drowning! This is patently absurd. He therefore feels that, were there only the pasuk "vehashevoto lo", we might be able to say that one who is involved with one mitzvah is exempt from another. Once the Torah uses the extra pasuk of "lo ta'amod" to introduce the new concept of requiring the outlay of money to save a life, it is then evident that "lo ta'amod" does not require "vehashevoto lo" to be in effect. After all, one of the principles of returning objects is that one does not have to pay out money for this mitzvah. Evidently, if "lo ta'amod" obligates monetary outlay, it must then be totally independent of "vehashevoto lo"20
The Mishnah Nedarim (33a) states that a person may take an oath (madir) to forbid another person (mudar) from deriving pleasure either from him or his property. Nevertheless, the madir may return a lost object to the forbidden person, the mudar. A later Mishnah (ibid. 38b), as explained by the Gemara (ibid. 41b) says the madir may engage in the healing of the mudar, however he may not treat his sick animal. The Talmud Yerushalmi (ibid. 4:2) questions why the madir can not tend to the sick animal, does it not fall into the category of "returning a lost item"? Answers the Yerushalmi, we are dealing here with a situation where there are others to heal the mudar's animal. If so, continues the Gemara, why is the madir allowed to treat the mudar himself, let him go to a different doctor? The Gemara responds with the tenet, "a person is not privileged to be healed through everyone" (lav min hakol adam zoche lehitrapot). Therefore, the madir can take care of the mudar, even where there are other physicians available. The Ran (ibid. 41b) explains the Talmud Bavli in the same fashion as the Yerushalmi, where even though there are other doctors available, the madir may still heal the mudar due to the concept "a person is not privileged to be healed by everyone."
Rav Elyashiv understands the Ran as implying that absent this concept, the madir would not be able to involve himself in the aiding of the sick mudar. Why not? Why should it be any less of a responsibility than returning a lost object, which a madir may restore even if there are others to return it? The difference is that absent the principle of "not everyone is privileged to heal", there is no obligation for a specific individual to heal, assuming there are other doctors around. The responsibility rests solely upon the ill person to seek his healing. The dictum "lav min hakol" comes to demonstrate that perhaps it is not only up to the sick person to search for his cure, for possibly Heaven has decreed that only the madir will be capable of effecting his recovery. The madir will be capable of effecting his recovery. The madir may therefore treat the mudar.
Using the identical logic, we can posit the converse as well. Perhaps the mudar's cure will come only from a different doctor, as opposed to coming from the madir, and if the madir treats him he will be unsuccessful, because the patient's recovery rests with a different doctor.
Rav Elyashiv points out that if this is true, then if there are many doctors ready to treat the patient, there is no longer a requirement of "lo ta'amod" for a physician who turns away a patient. Since the sick person needs only one doctor, who is to say that his recovery will not come through a different doctor? The physician who declines to treat a patient, obviously will not fulfill the obligation of "vehashevoto lo" (restoring his health), but his only responsibility to heal where other doctors are available arises from the mitzvah of returning lost objects, and that being the case, the doctor is not nullifying the command of "lo ta'amod".21
Rav Elyashiv goes even further, trying to show that the whole injunction of "lo ta'amod" is relevant only when there exists a life-threatening situation (sakanat nefashot). Upon examining the Gemara Sanhedrin (73a), we find that the only cases presented are those which represent dangers to survival, such as rescuing a drowning individual, and saving someone from thieves or wild animals. The Rambam as well (Hil. Rotzeach 1:14) mentions similar cases.
It would seem further that the Gemara Nedarim, which teaches the principle that "not through everyone is a sick person privileged to be healed" is also germane only to a dangerous predicament. The Rambam,22 Ritva, and Meiri23 all describe the case of the madir and mudar as involving a seriously ill patient.24 The Korban Ha'aida, writing on the Yerushalmi (Nedarim 4:2), also indicates that the patient is dangerously ill.
The Tzitz Eliezer26 cites Shevut Yaakov,27 who, like the Chamudei Daniel, concludes that in the case of a seriously ill patient, a doctor who is in mourning may leave his house to help, even when many other doctors are around, because of the tenet "lav min hakol".28 It would seem from these sources that this permission applies only when it comes to caring for a dangerously ill person, just as Rav Elyashiv has previously established.
The Tzitz Eliezer is bothered by an apparent contradiction between this halacha and the halacha governing milah (circumcision).32 The Ramo (Y.D.261) writes that a mohel can be forced to do a circumcision even for free, if there is no other mohel in the city. Why should the situation of a mohel be any different than the case of a doctor, whereby the doctor can exempt himself from acting if his fee is not met? The mohel should be able to contend, identically to the doctor, that anyone could have acquired the skill to perform circumcisions, and therefore it is not incumbent upon him alone to perform this milah.
The Tzitz Eliezer explains that in actuality there is no difference between these two cases. The mohel is able to refuse the circumcision, so long as there is another mohel available. Where there is no other mohel, he can be coerced to conduct the milah without receiving compensation. Likewise, if a doctor would be the only person in a city capable of rendering adequate medical care, he would also be forced to act and not be able to demand remuneration. The aforementioned case of the physician being allowed to refuse treatment of a patient, unless the patient acquiesces to extravagant payment, is restricted to the circumstance of there being other doctors in the city who can adequately aid the patient. Only in those instances can a doctor assert that the mitzvah is not his exclusive responsibility, and it falls equally on everyone else.
The Tzitz Eliezer quotes the levush and the Radvaz33 who also assert that the case of the doctor is limited to when the patient has other physicians to go to. The Radvaz in his explanation of this halacha states that even the Ramban (who is the Shulchan Aruch's source for this law) would admit that if there are no other satisfactory doctors available, then the mitzvah falls exclusively on this specific doctor, and if he continues to refuse treatment of this patient, he violates the positive command of "vehashevoto lo".
The above discussion is highly pertinent to our analysis. We see from the Tzitz Eliezer, and more specifically from the statement of the Radvaz, that when there are other doctors to care for an ailing individual, a doctor who declines to aid a patient does not violate the charge of "vehashevoto lo". This insight, in conjunction with Rav Elyashiv's understanding of the mitzvah of "lo ta'amod", that a doctor is not defying the mitzvah by turning away a patient so long as there are alternative physicians, demonstrates that in most of our modern cities, a doctor who does not see a patient transgresses neither the positive command of "vehashevoto lo", nor the negative tenet of "lo ta'amod".
The Maharsham deals with a different aspect of the question, whether there is a problem of Inui hadin (delaying a judgment). He discusses the case of a rabbi who eats or sleeps before providing an answer to a question that was pose to him.34 He notes that the rabbi is forbidden to delay pronouncing judgment only if an answer is clearly evident to him. However, if the Rav would have to search for an answer, there is no inui hadin if he eats or sleeps in the interim.
He cites a Braita35 that indicates the severity of delaying a response. The Braita tells that R. Shimon ben Gamliel was crying, when he an R. Yishmael were sentenced to death by the Roman government.36 R. Yishmael suggested that perhaps the reason for the severity of the punishment was that, maybe once while R. Shimon was eating or sleeping a woman came to ask on her niddah status, and his attendant told her that he was asleep. The Torah teaches (Shemot 22:22) that it is improper to pain another, and this warning is immediately followed by the pasuk "veharagti etchem b'cherev" (I will kill you by the sword). Perhaps the harshness of his death arose from the fact that R. Shimon caused the woman to wait for an answer, and therby caused her pain.
From here we see that causing one to wait for a response is a serious offense, in this case even punishable by death. The Maharsham explains, however, that by the letter of the law there is no real issue of delaying a reply. The narrative of R. Yishmael and R. Shimon is simply relating what would be considered an exceptionally pious act (milai dechasiduta). If the attendant sinned and R. Shimon had no knowledge of the events, what fault does he have that warrants his being punished in this manner? The strictness of the judgment upon them can only be because Hashem is exceedingly demanding of the righteous (Hakadosh Boruch Hu medakdek im hatzadikim kechut hase'arah).
He further elucidates, and this is relevant to the circumstance of a doctor as well, that a person is not required to cause himself pain to relieve the pain of others. The Braita in Semachot is not in accordance with practical Jewish law, since halacha follows the opinion of R. Akiva, that a person's own life is given priority over the life of another.37 The Maharsham conclusion states that one would not have to give up his time for eating, sleeping, and resting in order to alleviate someone else's discomfort, and this principle should likewise apply in the case of a non-seriously ill patient.
The Nishmat Avraham, quoting from Rav Neuwirth, adds that if the only reason that a dangerously ill person requests a specific doctor is because he knows that this physician will not charge him, the doctor has no obligation to come to this patient's aid.38
Even with all the aforementioned ideas, it would be best for any practicing physician to be mindful of the words of the Aruch Hashulchan (C.M. 426:4):
Everything is according to the situation, and each case should be balanced and weighed. A person should not be careful with himself excessively... anyone who saves a Jewish life, it is as if he saved the entire world.
1. Sefer Hazikaron for R. Zolti (Moriah 5747)
2. Y.D. 336:1.
3. This is not to suggest that a doctor can never close his office to take a break. The question here, however, is whether a doctor may ever refuse to treat a sick person who specifically asks for his help. And if he is-does that permit apply in all cases, irrespective of the severity of the patient's condition?
4. Y.D. 336:1.
5. Tzitz Eliezer, Chelek 13, Siman 56, #2
6. In the Tur 336.
7. Ibid. Prisha's question is actually asked on the Tur, but it applies to the Shulchan Aruch, as well.
8. Bava Kamma 85a.
9. Pirush Hamishnayot to Nedarim, Perek 4.
10. Mitzvah 237, in the Kometz Haminchah.
11. Sanhedrin 73a
12. Hilchot Rotzeach 1:14.
13. Ramat Rachel, Siman 21.
14. For additional discussions of this topic see Sh'ailot Uteshuvot Ha'Radvaz 218 and 627; Ha'emek Sh'aila 147:4; Meshech Chochmat, Shemot 4:19; Chavot Yair, 146; Iggerot Moshe, Y.D. 2, Siman 174, Anaf 4; Tzitz Eliezer Chelek 9, Siman 45; Encyclopedia Talmudit entry on Hatzolat Nefashot.
15. This was in fact the theory advanced by the rabbi (the doctor's son) who posed the question to Rav Elyashiv, as a means of reassuring his father.
16. Kometz Haminchah, Mitzvah 237.
17. Rav Y.F. Perlow in Sefer hamitzvot of R. Saadia Gaon writes the same theory and proof as the Minchat Chinuch. In the notes to the Machon Yerushalayim Minchat Chinuch the writer cites an explanation of the opinion of the Minchat Chinuch, and brings many opinions opposed.
18. The conclusions of both the Minchat Chinuch and the Chochmat Shlomo are strongly refuted by Rav Elyashiv (ibid.) and Rav Moshe Feinstein (Iggerot Moshe, Y.D. 2, Siman 174, Anaf 3).
19. Chidushei Ha'Ritva, Succah 25a.
20. See also Shulchan Aruch Harav (Hilchot Nizkei Haguf, Siman 8) who states explicitly that these two mitzvot are separate from each other.
21. It is not clear why the dictum "lo tuchal lehitalem" is not operative in this situation.
22. Pirush Hamishnayot to Nedarim, Perek 4.
23. Nedarim 41a.
24. However, the Rambam in Hilchot Nedarim 6:8 makes no specific reference to a seriously ill person. The Keren Orah on Nedarim 41b questions what the Gemara would derive from a case of pikuach nefesh, once it has already been established that the entire Torah is violated for the sake of saving a life. He therefore concludes that the Gemara is not dealing with a case when the mudar is dangerously ill.
25. Lev Avraham 2, Perek 14, Ha'arah 25 writes that the Pitchei Teshuva implies that this would include even a non-seriously ill patient. In Sefer Zichron Meir, Availut, Chelek 1, Perek 4, Siman 7, Ha'arah 75, the author questions Dr. Avraham's conclusion, because the language of the Pitchei Teshuva is that he was called upon by a "chole gadol". See note 27.
26. Tzitz Eliezer, Chelek 13, Siman 56, sif Katan 2.
27. Shevut Yaakov, Chelek 1, Siman 86.
28. Nishmat Avraham (Y.D. Siman 380 sif katan 1) quotes Rav Shlomo Zalman Auerbach, who wonders why a doctor in mourning can treat only the seriously ill. If one is fulfilling a mitzvah even by treating a non-seriously ill patient, why should a mourner not be allowed to leave his house and attend to these people as well? It appears to me that it may be possible to answer this question with the idea established by Rav Elyashiv. If one is seriously ill then by calling a specific doctor he is activating that physician's obligation of "lo ta'amod" and of "lav min hakol", which will require the physician to act. However, if the patient is not dangerously sick, even if the doctor is not in mourning he can turn this person away and send him to a different doctor for assistance; surely then if he is in mourning we could understand that he might not be allowed to go and aid the patient.
29. The original source for this idea is the Ramban in Torat Ha'adam (Chavel Translation, p. 44).
30. This halacha, as well, is derived from Ramban (ibid.)
31. See also, Bach and Prisha (Y.D. 336) on this.
32. Ramat Rachel, Siman 25.
33. Shailot Uteshuvot Ha'Radvaz, Chelek 3, Siman 986 (556).
34. Shailot Uteshuvot Ha'Maharsham, Chelek 2, Siman 210; quoted by Nishmat Avraham, Chelek 4, Section Y.D., Siman 336, S'if Katan 1.
35. Mesechta Semachot (Perek 8).
36. There are two versions of the Braita. One has R. Yishmael as crying, the other version says it was R. Shimon who cried. The Maharsham seems to follow the version that it was R. Shimon..
37. See Gemara Bava Metziah 62a. It is unclear to me why this logic should apply even in non-dangerous situation. It would seem that the argument of R. Akiva and Ben Petura is only referring to a case of sakanat nefashot. However, in terms of strictly exerting oneself for another, this principle may not apply and one would be required to cause himself a little extra trouble for the sake of another.
38. Nishmat Avraham, Chelek 4, Section E.H., Siman 115.