Fred Rosner, M.D., F.A.C.P.
Director, Department of Medicine, Mount Sinai Services at Queens Hospital Center, Jamaica, N.Y.; Professor of Medicine, Mount Sinai School of Medicine, New York, N.Y.
Journal of Halacha & Contemporary Society XL; Fall 2000, Sukkot 5761

Introduction
The Jewish physician, given divine license and biblical mandate to heal (based on Exodus 21:19 and Deuteronomy 22:2), is entitled to reasonable fees and compensation for his services.1 In talmudic times, when physicians, rabbis, teachers and judges served the community on a part-time basis only and had other occupations and trades, their compensation was limited to lost time and effort. Nowadays, however, when physicians have to devote full attention to their medical occupation, they may charge for their expert medical knowledge and receive full compensation. Although excessive fees are discouraged, they are not prohibited if the patient agrees to the fee in advance. Indigent patients should be treated for reduced or no fees at all. These principles are applicable both to the salaried physician as well as to a physician in private practice who charges fee for service.

The subject of this essay concerns the right to be remunerated for medical services rendered on the Sabbath or other Holy Days.2

Classic Jewish Sources
The Talmud states that one should not pay a hired worker or baby sitter for work performed on the Sabbath unless one hires them for a week, a month, or a year (Baba Metzia 58a). In such a case, the payment is considered to be included (literally swallowed up) in the payment for the week or month or year's work. This rule is codified by Maimonides in his Mishneh Torah (Shabbat 6:25).3

A second talmudic source for this problem relates to a "rebellious" spouse who is fined (Ketubot 63a). A rebellious wife (who refuses to serve her husband or cohabit with him) has one dinar deducted daily from her marriage contract (ketubah). A rebellious husband (who neglects any of his three obligations to his wife; see Exodus 21:10) must add one and a half maah to the ketubah for six days of the week. The Talmud asks: why does a rebellious wife have money deducted daily including the Sabbath, whereas a rebellious husband is fined only six days of the week? The Talmud answers that in her case, since it is a reduction that is made, it does not have the appearance of Sabbath pay. In his case, however, since it is additions that are made, it would appear as if his wife is being paid on the Sabbath, which is presumably forbidden. Rashi there (s.v. kisechar' Shabbat) explains that the problem of receiving payment for work performed or services rendered on the Sabbath is a decree which the rabbinic sages enacted prohibiting the conduct of business on the Sabbath.

The talmudic commentary Mordechai (Ketubot 63a #189) states that for this reason Rabbi Baruch claims that cantors are not allowed to hire themselves out solely for Sabbath services. On the other hand, Rabbi Shmuel (son of Mordechai) asserts that there is no prohibition involved because cantors are paid to perform the mitzvah of leading the communal prayers.

The prohibition of transacting business on the Sabbath is discussed elsewhere in the Talmud (Beitzah 37a) and is based on the verse of honoring the Sabbath by not engaging in one's usual business affairs (Isaiah 58:13).

Rabbi Jacob ben Asher, known as Tur, writes that his brother Yechiel stated that it was customary in Germany and France (literally: Ashkenaz) that the great rabbinic sages of each town would volunteer to blow the shofar on Rosh Hashanah (Orach Chaim 585). However, in Spain nobody wanted to blow, to the point where an ordinary Jew had to be hired and paid to do so. Tur decries this practice, asking: where did they find a permissive rabbinic ruling to do so? It is prohibited to pay someone for work or services rendered on the Sabbath or Holy Day, as discussed in the talmudic passage cited above (Baba Metzia 58b).

In Bet Yosef, his commentary to Tur's code, R. Joseph Karo, asks how, in view of this talmudic passage, can Rabbi Shmuel assert that there is no prohibition because cantors and other synagogue functionaries are performing a mitzvah? One cannot violate a prohibition in order to perform a mitzvah! Bet Yosef answers that there really is no prohibition. The Talmud in Ketubot, about a rebellious wife or husband, only says that adding money to a woman's ketubah on the Sabbath has the appearance of Sabbath pay. Furthermore, elsewhere (Pesachim 50b) the Talmud states that the wages of those who interpret the weekly Torah reading on the Sabbath will never contain a sign of blessing because it looks like wages for Sabbath work. The Talmud does not say, however, that it is prohibited.

Bet Yosef, therefore, explains that the prohibition of Sabbath pay applies only if one hires someone on the Sabbath. If one hires a cantor or interpreter before the Sabbath, it only appears as payment for Sabbath work but is not prohibited. Therefore, Rabbi Shmuel rules that this concern is ignored if the hired person is performing a mitzvah, such as serving as a cantor or interpreter on the Sabbath or blowing the shofar on Rosh Hashanah. Bet Yosef agrees with Rabbi Shmuel that there is no prohibition. That is why in his Shulchan Aruch (Orach Chaim 585:5) he rules that a person who is paid for serving as a cantor, or interpreter on the Sabbath will not benefit from that money because it has the appearance of Sabbath pay, but it is not prohibited.

The difficulty is that elsewhere in Shulchan Aruch (Orach Chairn 306:5), Rav Karo rules just the opposite when he states: "it is prohibited to hire cantors to lead the prayers on the Sabbath, but some rabbis permit it." This problem is discussed in detail by many latter-day rabbis (Acharonim) and current rabbinic authorities. At least two answers are offered. Firstly, wherever Rav Yosef Karo writes two apparently contradictory rulings, the latter is the one that is adopted (Responsa Karnei Re'em #234). Secondly, whenever he cites a prohibition followed by a permissive ruling (i.e., "but some rabbis permit it"), the prohibition usually stands. This case, however, is an exception in that the permissive ruling is adopted, since Rav Karo himself, in his Bet Yosef commentary (Orach Chairn 585), rules that there is no prohibition to pay people who perform a mitzvah such as cantors on the Sabbath. Additional reconciliations of these two seemingly contradictory rulings are offered by others. (Responsa Yabia Omer, Part 5 #25).

The question still remains .how cantors and interpreters who are paid for Sabbath services deal with the universal statement in the Talmud and codes of Jewish law that such Sabbath pay does not contain any sign of blessing forever. Rabbi Moshe Isserles (Ramo), in his gloss to Shulchan Aruch (Orach Chaim 306:5) answers that if the payment is for monthly or yearly service, there is no problem, since the Sabbath pay is "swallowed" up in the monthly or annual salary. The Mishnah Berurah (ibid. #24) states that it is likely that the cantor also leads the prayers occasionally on a weekday. Mishnah Berurah also cites rabbinic authorities who state that it became customary for cantors to be hired solely for Sabbath services. Rabbi Yechiel Michel Epstein, in Aruch Hashulchan (Orach Chaim 306:11) states that cantors may also be obligated to sing at circumcisions and weddings as part of their monthly or annual duties. In fact, Aruch Hashulchan prohibits pure Sabbath pay even for the performance of a mitzvah and requires a cantor to perform some service during the week. Such service might include preparation time.

Payment for Healing on the Sabbath
The specific question of whether or not a physician or other health-care provider can be paid for diagnostic and/or therapeutic services on the Sabbath was first raised in the fifteenth century in Germany by Rabbi Yaakov Weil and Rabbi Yisrael Bruna (Responsa Mahari Bruna #114). They permit a midwife to receive payment for assisting a Jewess on the Sabbath to give birth, because it is absorbed in the total care provided throughout the pregnancy. Furthermore, if she were not paid, she might not come on a future Sabbath to care for other women in labor and might thereby endanger lives.

Rabbi Chaim Modai of Smyrna in the nineteenth century rules that it is permissible for a physician to be paid for Sabbath work since it puts the patient's mind at ease.4 Furthermore, if the physician were not paid, he might hesitate to see a patient on a future Sabbath and thereby possibly endanger the patient's life. He concludes by saying that "the patient is obligated to pay him his full fee... the custom is to permit it and nobody ever objected." Rav Modai suggests, however, that it is preferable to pay the physician for treating the total illness or to pay on a weekly basis.

Rabbi Chaim Yitzchak Algazi (Responsa Derech Aitz Chaim #2) also permits a physician to receive Sabbath pay, basing his opinion on the previous permissive ruling of Rav Bruna. Rabbi Joseph Chazan (Responsa Chikrei Lev, Orach Chaim, Mahadura Batra #9) concludes that a physician is prohibited from receiving financial compensation for his knowledge and expertise but is entitled to be paid for his effort in walking to and from the patient's house on the Sabbath. Otherwise he might not respond on a future occasion for another patient. Rabbi Joseph Teumim (Peri Megadim, Mishbetzet Zahav, Orach Chaim 306:4) limits the permissive ruling to a midwife who is hired before but not on the Sabbath or Holy Day. Rabbi Moshe Sofer (Responsa Chatam Sofer, Choshen Mishpat #194) suggests that Sabbath fees from non-Jewish patients should be given to charity, since one should not derive any benefit therefrom.

At the beginning of the twentieth century, Rabbi Elazar Loew (Responsa Pekudat Elazar #29) ruled that a physician may be paid for Sabbath work because healing is a mitzvah, not only for Jewish patients but for non-Jewish patients as well. His reasoning is that non-Jews nowadays observe the seven Noahide laws, and it is therefore a mitzvah to heal them. Rabbi Sinai Schiffer (Responsa Sitri Umagini #15:2) prohibits physicians from collecting fees for Sabbath services since Rav Bruna's ruling was limited to midwives who might not come again if not paid. Conscientious physicians, claims Rav Schiffer, will not refuse to see a patient whether or not they receive payment. He agrees that if the physician also visits the patient a day or two before or after the Sabbath, he may receive all-inclusive payment for his services because his Sabbath payment is absorbed in the total fee.

Responsa Harei Besamim Part 1 #52, prohibits a Jew who walked a long distance on the Sabbath to help a patient from being paid for his effort because that constitutes Sabbath pay. Another posek (Responsa Tzvi Tiferet #32) disagrees and permits it, relying on the ruling of Rav Bruna that "in the face of danger, the rabbis do not enact prohibitive decrees." On the contrary, the physician is allowed to claim his fee in court, if necessary, so that he won't refuse to care for future patients on the Sabbath if not paid.

Rabbi Chaim Porush5 discusses the case of a physician who was staying at a hotel far from home over the Sabbath, who was asked to care for a hotel guest who became sick. Is the physician, after the Sabbath, allowed to bill for his services? Rabbi Porush reviews in detail the classic Jewish sources discussed earlier in this essay and concludes that Mahari Bruna's permissive ruling for a midwife to receive payment for Sabbath services is based on two separate considerations. Firstly, the payment is include or "absorbed" in her overall fee. Secondly, possible danger to life might occur if she refused to treat patients on future Sabbaths were she not paid. He concludes that although the first reason is not applicable in the case of the physician at the hotel, the second reason alone is sufficient to permit the Sabbath pay. He also cites Rabbi Azriel Hildesheimer, who also permitted the receipt of compensation for medical services rendered on the Sabbath, since healing on the Sabbath is itself permissible. Only for forbidden work on the Sabbath is it prohibited to receive payment.

Rabbi Isser Zalman Meltzer6 and Rabbi Yitzchak Elchanon Spector7 both permit a physician to receive payment for Sabbath services, provided he bills the patient and collects his fee after the Sabbath. Rabbi Yehoshua Yeshaya Neuwirth8 cites the various rabbinic opinions and concludes that a physician or nurse called to provide medical services on the Sabbath may request payment for their Sabbath services but should not speak about the fee on the Sabbath itself. Rabbi Dr. Abraham S. Abraham9 lists the numerous contemporary rabbis who permit physicians and other health care givers to receive payment for their medical services on the Sabbath, provided the payment is requested and obtained after the Sabbath. An extensive listing of rabbis who allow a physician to receive payment after the Sabbath for medical care rendered on the Sabbath is provided by Rabbi Dr. Abraham Steinberg in his Encyclopedia of Jewish Medical Ethics.10 He also mentions the permissible arrangements for Sabbath compensation of a Jewish physician who has non- Jewish partners or associates.

Summary
In Jewish Law, physicians are given biblical license and mandate to heal and are entitled to receive appropriate compensation for their services. Payment for Sabbath work is ordinarily forbidden because of a rabbinic prohibition against conducting business on the Sabbath. But public functionaries, such as pulpit rabbis, cantors, Torah interpreters and their like, are permitted to receive payment for the services they provide on the Sabbath and Holy Days because they perform a mitzvah. It is preferable that they be paid by the week, month, or year so that their Sabbath pay is absorbed or included in services also provided on weekdays.

Physicians who diagnose and treat illness on the Sabbath or Holy Days are certainly performing a mitzvah. So, too, midwives who assist in the delivery of babies on the Sabbath. Therefore, physicians, midwives and other health care givers are permitted to accept fees for their Sabbath services but should not bill nor collect their fees until after the Sabbath. It is also preferable that they visit their patient again either before or after the Sabbath visit so that their Sabbath payment is included in the total fee. Another reason for allowing Sabbath pay for midwives is not to discourage them from providing Sabbath services in the future were they not paid.

COMMENTS:
1. For the subject of physicians' fees in Jewish law, see Rosner and Widroff, "Physician's fees in Jewish law," Jewish Law Annual, 1997, vol .12, pp 115-126.
2. Jakobovits I. "Payment for services on the Sabbath", in Jewish Medical Ethics, New York, Bloch, 1975, pp 228-229.
3. However Rabbi Joseph Karo's Shulchan Aruch states that a person who is paid for serving as a cantor or for blowing the shofar in the synagogue on Rosh Hashanah will not benefit from that money (Orach Chaim 585:5).
4. Kahana 1.Z. Harefuah Besafrut Hahalachah Shelachar ha- Talmud. Sinai, Jerusalem, Mossad Harav Kook, Year 14, vol 27, folios 7 (159)- 12 (164). Nissan - Elul 5710, (1950), pp. 233-235.
5. Porush C. "Bedin sechar shabbat lerofeh." In Halachah Urefuah (M. Hershler, edit.). Jerusalem - Chicago, Regensberg Institute, vol 1, 5740 (1980), pp 184-189.
6. Ibid. Meltzer I.Z. "Be'inyan sechar shabbat lerofeh."
7. Ibid. Spector Y.E. "Sechar shabbat lerofeh."
8. Neuwirth Y. Y. Shemirat Shabbat Kehilchatah, Jerusalem, Moriah, new edition, 1979, chapt 28:67 (p. 369).
9. Abraham A.S. Nishmat Avraham, Jerusalem, Schlesinger Institute, vol 1, section Orach Chaim, 1993, pp 137-138.
10. Steinberg A. "Sechar harofeh beshabbat", Encyclopedia of Jewish Medical Ethics, Jerusalem, Schlesinger Institute, vol. 6, pp. 394-396.

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