Self-Endangerment
to Save Others
Daniel Eisenberg, M.D.
Must
physicians risk their own lives to treat their contagious patients?
Apr
25, 2003 TORONTO (Reuters) - Exhausted health workers on the front line of
Toronto's battle against SARS must also cope with the frightening knowledge
that they are most at risk, and there is no fail-proof way to protect them . .
.
Historical
Perspectives
Physicians have been treating contagious diseases for
millennia. As a result, the death toll in the medical profession has been
significantly higher in times of epidemic. This reality has come to the
forefront over the past decade with the spread of Severe Acute Respiratory
Syndrome (SARS), the threat of Avian Flu, and the recent pandemic of H1N1
(Swine Flu). In 2003, there was worldwide SARS panic, with planes detained,
medical meetings cancelled, and embassies reduced to skeleton crews. The
medical profession was particularly hard-hit by the SARS pandemic, with many
healthcare workers becoming ill and dying of SARS. Even the physician who first
recognized SARS died of it.
But we
must separate the true risk from the hysteria. Despite grim predictions in
early 2003, when the SARS pandemic spread from one province in China to 37
countries within a few weeks, the World Health Organization estimated that by
the time SARS had run its course in mid June, it had infected only 8,096 people
and caused 774 deaths worldwide.[1] This
should be compared with the statistic that influenza kills between 250,000 and
500,000 people each year around the world. Even in the United States, with a
vaccine and modern medical care widely available, the flu kills at least 36,000
people a year. The "Spanish flu" pandemic of 1918 killed between 40
million and 50 million worldwide, most of them young, healthy adults. The
"Asian flu" and "Hong Kong flu" pandemics of 1956-1957 and
1967-1968 killed a combined 4.5 million people.
The
AIDS Epidemic
The
reality is that despite the increased risk, it is not common for physicians to
refuse to treat flu patients for fear of becoming infected themselves. However,
sometimes paranoia and raw emotion drive calls for patient quarantines and
refusals of healthcare workers to treat infected patients, even when not fully
justified. HIV is the most recent example of such behavior, where some
healthcare workers refused to treat AIDS patients, despite the fact that the
risk of becoming infected by casual contact was virtually nonexistent. The
Centers for Disease Control reported in 2001 that they were "aware of 57
health care workers in the United States who have been documented as having
seroconverted to HIV following occupational exposures." There were
"137 other cases of HIV infection or AIDS among health care workers who
have not reported other risk factors for HIV infection" and reported
occupational exposures, but did not have documented seroconversion after
exposure.[2]
Overall, the total is still a very small number considering the prevalence of
the disease, the frequency of needle sticks and other occupational exposures,
and the over 25 years that HIV has been recognized.
Nevertheless,
early in the AIDS epidemic, before the mode of HIV transmission was clearly
understood, self-endangerment was a legitimate concern for medical personnel
treating AIDS patients. Even after the mode of transmission was confirmed, fear
of occupational exposure raised serious concerns. This perceived risk, coupled
with the moral aspects of HIV transmission inspired several halachic treatises
on AIDS which grappled with the issues of caring for contagious patients.[3]
The
Present
We now confront the specter of worldwide pandemic once
again with the spread of the H1N1 virus and with it a threat particularly to
healthcare workers.[4] But the
phenomenon of risk to healthcare workers is nothing new. Healthcare workers
have always been endangered in times of epidemic as they have close contact
with ill patients. In recognition of this increased risk, healthcare workers
are encouraged to receive yearly flu vaccinations. The Advisory Committee on
Immunization Practices, a group that provides recommendations to the CDC, voted
on July 29, 2009 to set H1N1 vaccination priorities for those groups most at
risk for infection, including placing healthcare workers at the “front of the
line” for vaccination.[5] While the
prospect of a vaccine is reassuring, one month later, the President's Council
of Advisors on Science and Technology reported that under a plausible scenario
(involving large outbreaks at schools, an insufficient vaccine supply, and
virus effects peaking before the vaccine has a chance to become effective), the
H1N1 virus could infect between 30 percent and 50 percent of the American
population during the fall and winter. This could lead to as many as 1.8
million U.S. hospital admissions and may cause between 30,000 and 90,000 deaths
in the United States, concentrated among children and young adults.[6]
The
Mitzvah to Heal
Physicians
have traditionally been willing to treat patients with communicable diseases
despite the risk to their own lives. What is the source for this practice, is
it obligatory to treat such patients, and if so, is there any limit to the
obligation to do so?
There is
actually a great deal of controversy in Jewish halachic literature as to from
where we derive the mandate to heal. While most authorities derive a very broad
mandate, there are a few well-known minority opinions that severely limit the
scope of the authorization to provide medical care.[7]
The
Talmud derives the obligation to rescue one’s endangered fellow from the verse:
“Do not stand over your neighbor’s blood.”[8] This verse,
however, only appears to require one to prevent accidents or injuries, it does
not necessarily imply any duty to heal. Perhaps one only learns the obligation
to react to an external danger threatening a neighbor, but not a true mandate
to practice medicine.
A more
direct source is the Biblical passage regarding two men fighting.[9] If one
man strikes another and the victim does not die,[10] “[the
aggressor] shall pay for his [lost] time [from work] and he shall cause [the
victim] to be thoroughly healed.” Rashi, a preeminent Biblical commentator,
explained that this passage instructs us that “he shall pay the fee of the
physician.” Clearly, if the aggressor is commanded to pay the doctor's bills,
then seeking medical treatment and providing medical treatment must be
permissible, but not necessarily obligatory.[11]
Maimonides takes it a step further and derives a true
obligation to heal from the verse “and you shall return it [a lost object] to
him.”[12] While other
commentators interpret this verse to command one to return a person’s “lost
body” as well as his lost property (i.e. aid one’s friend in times of danger),
Maimonides goes further and derives the obligation of physicians to treat
patients from this verse. Furthermore, he states that this verse represents a
Biblical commandment to every person, each according to his ability, to restore
the health of his fellow man.[13] As such, not
only may we not stand idly by as our neighbor is endangered, but we must
aggressively attempt to return his health to him, including utilizing medical
treatments.
Obligation
to Guard one’s Health
While the
physician or nurse is bound to treat the sick, they are also bound by the Torah
obligation to protect their own health. The Torah contains several commandments
regarding personal safety. For example, the Torah requires the building of a
guardrail (ma’akeh) around any flat roof, to
prevent someone from falling.[14]
Maimonides explains this requirement to include being proactive in eliminating
all preventable risks, such as building a fence around an unguarded swimming
pool.[15]
In
addition to removing hazards, the Torah twice commands us to protect our
health, safety and well being, stating: “Only beware for yourself, and greatly
beware for your soul. . .” and “But you should greatly beware for your soul. .
.”[16] These
Torah prohibitions find practical application in the Talmud, with prohibitions
against dangerous activities such as walking near a shaky wall, lest it fall
and injure the passerby. Similarly, many other dangerous pursuits are
proscribed.
Further
on in his legal magnum opus, Maimonides[17] expands on
the obligation to guard one’s health, giving multiple examples of dangerous
activities that are rabbinically forbidden, many of them far less dangerous
that some of the activities in which we engage today. Many of these specific
actions, such as putting coins in one’s mouth are codified in the Code of
Jewish Law (Shulchan Aruch).[18] Rabbi
Moshe Isserles (Rama), in his glosses to the Shulchan Aruch,
rules that:
“One should
avoid all things that might lead to danger because a danger to life is stricter
than a prohibition. One should be more concerned about a possible danger to
life than a possible prohibition. . . And all of these things are [forbidden]
because of potential danger and he who is concerned with his health avoids
them. And it is prohibited to rely on a miracle or to put one's life in danger
by any of the aforementioned or the like.”[19]
Situations
in Which Risk is Permitted
The
Talmud explains that when one enters a situation of danger, God examines his
deeds to see if he deserves to be saved from harm.[20] For this
reason, one should not enter into a dangerous situation without a valid reason.
Yet even a valid reason may not suffice. For instance, one might postulate that
one may undergo danger to do a mitzvah (religious duty), relying on heavenly
protection. However, even though there is a concept that someone who is on a
mission to do a mitzvah will not be harmed,[21] the Talmud
explains that this may not be the case if the danger is likely to occur (shach’iach hazekah).[22] It
seems that even for mitzvah observance, a distinction can be drawn between
pre-existing danger (such as swimming in shark-infested water) and danger that
may develop (such as the risk of driving a car), with the one performing the
mitzvah only definitively protected in situations such as the latter case.[23]
As a
rule, any action that presents an unnecessary preventable risk to health or
life must be avoided. Nevertheless, there are exceptions to the prohibition of
deliberately entering a dangerous situation and there is latitude in evaluating
how much risk is acceptable. There are several instances in which the Talmud
queries why certain potentially dangerous actions are permitted.[24] The
Talmud concludes that a person need not avoid small risks that are accepted by
the rest of normal society without undue concern. The rationale for this ruling
is that while we may not take indiscriminate risks, we may go about normal
activities of daily living with the guarantee of heavenly protection. This is
derived from a statement in Psalms: “shomer
peta’im Hashem- God watches over the
simple."[25] That
is, one can rely on the promise that God watches over him as he does the simple
activities of daily living, so long as the activity is widely practiced and
carries a risk that is not considered significant by society.
For
instance, since automobile travel presents an element of danger, we might think
that it should be forbidden. Nevertheless, it is a risk accepted by society and
most people do not give much thought to the danger. Therefore, driving with
normal caution is permitted by normative Jewish law, despite the inherent small
risk.
Judaism
also recognizes the need to earn a livelihood as a second mitigating factor in
allowing risky behavior. The Talmud asks: "Why does the worker climb a
high ramp or hang on the tree and risk his life? Is it not to earn his
wages?"[26]
Therefore, the least we can do is pay him on time! This is the leniency for
walking a tightrope high above a crowd or engaging in other dangerous
professional pursuits which involve risks that most people would not accept.[27]
Intrinsic in the Talmud's argument is the assumption that one may take risks to
earn a living that would not otherwise be permitted. Someone has to paint the
bridge, build the skyscraper, mine the coal, and dive for pearls. So long as
the risk stays within "reasonable" parameters, such activities are
permitted as professions.
The
crucial question of what constitutes “reasonable” risk in a medical scenario
will be discussed later. At a minimum, Jews are obligated to avoid unnecessary
behavior that contains immediate risk that is not associated with their
professions. One should wear seatbelts, drive at the speed limit, and avoid
dangerous social activities such as illicit drugs.
Clashing
Obligations
Regardless
of the source for the mandate to heal, Judaism clearly accepts that mandate and
Jews have played an important role in providing medical care for many
centuries. The Torah’s directive to heal has been the basis of the Jewish
physician's responsibility to treat his patient. From a Torah perspective,
barring mitigating circumstances, the physician (like anyone else in a position
to save an endangered neighbor) must treat the sick.[28] Therefore,
we must ask how far the obligation extends. Does the physician have to endanger
his own life to treat a patient with a dangerous contagious disease?
In such a
case, the healthcare worker is caught between the proverbial rock and a hard
place. While mandated to heal, the Torah also commands the healthcare worker to
zealously guard his own health.[29] The
doctor must ask the question: May I expose myself to a questionable danger to
save someone else from a definite danger? The answer to that question is the
subject of dispute.
The
Obligation to Save a Life
To evaluate this question, we must analyze whether there is
a distinction between the obligation to save another from harm when one’s own
safety is at risk and the obligation to rescue when one’s own safety is not at
risk. As previously discussed, the Talmud derives the fundamental requirement
to save another person from danger directly from the Torah. The Talmud[30] explains:
"From where do we know that if one sees his friend drowning in a river, or
if he sees a wild animal attacking him, or bandits coming to attack him, that
he is obligated to save [his friend]? The Torah[31]
teaches: "Do not stand over your neighbor's blood (but rather save him).”
According to Maimonides,[32] this
translates into a positive obligation to use your time, money and even your
body to save your fellow.
In the
last passages of his monumental commentary Beit Yosef,[33] Rabbi
Joseph Karo discusses the Biblical obligation to save one’s neighbor from harm,
including the passage from the Talmud mentioned above and Maimonides’
codification of the law of saving others from danger. He then adds the crucial
concept that according to the Jerusalem Talmud,[34] the
potential rescuer “is obligated to even place himself into questionable danger
(safek sakkana)
to save his fellow. The reason appears to be because the danger to his fellow
is definite, but the danger to the rescuer is questionable.”
Interestingly, Rabbi Karo does not include this ruling in
his later work, Shulchan Aruch. Two possible
reasons are proposed for this fascinating omission. Rabbi Karo establishes in
the introduction to the Shulchan Aruch that he
rules according to the majority opinion of three major authoritative Rabbis:
Maimonides (Rambam), Rabbi Yitzchak Alfasi (Rif), and
Rabbeinu Asher (Rosh). Since none of these noted
Jewish legal experts mention the ruling of the Jerusalem Talmud, it is
reasonable that Rabbi Karo did not codify it in the Shulchan Aruch.[35]
Alternatively, neither Rabbi Karo nor Rabbi Isserles include the ruling because
the Babylonian Talmud,[36] generally
considered more authoritative than the Jerusalem Talmud, renders a contrary
ruling.[37]
Must
I Risk my Life to Save another?
Among the earliest responsa on the topic of risking life to
save others were those of Rabbi David ben Solomon ibn Avi Zimra (Radbaz), a contemporary of Rabbi Karo in Safed in the 16th
century. The Radbaz[38]
was asked a chilling question. What should one do if a government officer
threatens: "Let me cut off one of your limbs in a way that you will not
die, or I will kill your friend!" After bringing several proofs that one
might have an obligation to lose one’s limb, he concludes that if there were
even a questionable risk of death (safek sakkana), then one who agrees to lose his limb would be
a pious fool (chasid shoteh)
-- the Talmudic description of one who goes far beyond the call of duty based
on a perverted religious ideal.
In a
second responsum,[39] the Radbaz further fleshes out the issues involved in entering
into a dangerous situation in order to save others. He was asked about a
technicality in Maimonides’ ruling that “anyone who can save his fellow and
does not save him has transgressed the commandment: “do not stand over your
neighbor’s blood (but rather save him).” The Radbaz
explains that Maimonides’ ruling applies when the rescuer undergoes no danger
to himself whatsoever, such as warning a person asleep beneath a shaky wall to
get up or to share life-saving information with someone else. He then adds
that:
“[he must save his friend] even if
there is a small possibility of danger (safek
sakkana) to the rescuer. For example, if he sees
his friend drowning in the sea or bandits coming to assault him or [sees him]
being attacked by a wild animal -- all of which entail a possibility of danger
-- nevertheless, he still must rescue [his friend] . . . even in a place that
there is a questionable danger, there is an obligation to save, and this is
[found] within the Jerusalem Talmud. However, if the questionable danger
approaches certainty, one is not obligated to take the risk to himself of
saving his friend. And even if there is [only] an even danger, one is not
obligated to risk himself because who says that his [friend’s] blood is more
valuable, perhaps [the rescuer’s] blood is more valuable. But, if the [degree
of] questionable [risk] is not significant, rather rescue seems likely and
without [significant] risk to the rescuer, and he does not [attempt to] rescue,
he has transgressed [the prohibition of] ‘do not stand over your neighbor’s
blood.’”
These
apparently contradictory rulings of the Radbaz are
reconciled by Rabbi Ovadia Yosef,[40] former
Sefardi Chief Rabbi of Israel, by explaining that the
Radbaz's first responsa, that rules that one who
risks himself to save another is a pious fool, refers to when the odds of
danger to the rescuer are 50% or greater. When the odds are lower, the second
responsa applies. Rabbi Yitzchak Zilberstein takes a different approach,
arguing that the Radbaz only requires one to enter
into a situation involving a doubtful risk to save someone, if in a different
scenario, he would be willing to enter into such a risk for his own benefit.[41]
The
Balancing Act
Rabbi
Abraham Tzvi Hirsch Eisenstadt, author of the Shulchan Aruch
commentary entitled Pitchei Teshuvah,[42] explains
that the would-be rescuer must carefully evaluate the situation to ascertain
whether he will truly be putting himself into danger if he attempts the rescue.
He warns that the potential rescuer should not be overly cautious with his own
health and well-being. A similar ruling appears in the Talmud[43] and
with respect to the return of lost objects is recorded by the Shulchan Aruch[44]
itself.
The Shulchan
Aruch analyzes this issue when discussing another
topic as well. In that regard, when discussing the primacy of saving life over
guarding the Sabbath, Rabbi Karo[45] rules
that it is a mitzvah to transgress the Sabbath in order to save people from a
sinking ship, from a flood, or to rescue one being pursued by assailants. Our
question again arises: how much risk must one take in attempting to save
another? Rabbi Yisroel Meyer Kagan (Chafetz Chaim), in his seminal commentary
to the Shulchan Aruch entitled Mishnah Brurah,[46] rules
that one is not obligated to risk one’s own life to save others if there is
definite danger (vaddai sakkana)
to the rescuer. He writes that even a question of danger (safek
sakkana) to the rescuer outweighs the definite
danger (vaddai sakkana)
to the endangered party. However, concurring with the ruling of Rabbi
Eisenstadt, he mirrors earlier rulings that state that if there is only a
question of danger (safek sakkana), the would-be rescuer should evaluate the
situation to make a judgment about the actual risk involved in saving the
endangered party and not be too overly cautious with the risk to his own life.
To
understand how to weigh various dangers mentioned above, one must ask exactly
what vaddai sakkana
and safek sakkana
actually mean? While vaddai sakkana and safek sakkana are mentioned throughout halachic literature,
their exact definitions are not clear and may represent different concepts in
different sources. Sometimes, they may merely represent different degrees of
statistical risk, with vaddai sakkana meaning a great risk and safek
sakkana meaning a lesser risk. In the case above,
this would mean that the passengers of the sinking ship face a very great
danger and the rescuer may only face a small danger.
However, it is possible that from a Jewish ethical
perspective, there is an intrinsic distinction between vaddai
sakkana and safek sakkana with vaddai sakkana representing an actual danger and safek sakkana representing a
questionable risk. An actual danger may represent a known threat to life, such
as certain diseases or dangerous situations. A questionable risk may mean that
there is merely a possibility that there is a danger to life (versus a known
extent danger which is considered a true danger). In the case of the sinking
ship mentioned above, a definite risk may be sharks in the water, while a
questionable risk may be the possibility that there are sharks in the water. In
such a case, one should honestly evaluate the probability of sharks in the
water and choose to attempt rescue (if he can swim) if the probability of
sharks is small. Regardless of what is the exact definition of definite and
questionable risk, Jewish law stresses that one should not use a far-fetched
risk as an excuse to withhold treatment.
How
Much Risk is Too Much?
If even a
questionable risk to oneself outweighs a certain risk to another, how does one
make a decision regarding how much self-endangerment is appropriate? Rabbi
Isser Yehuda Unterman, a former Chief Rabbi of Israel, presents a very
practical approach to decision-making when one’s own safety and the safety of
another conflict.[47] He
states:
“We need to
place boundaries on what constitutes questionable danger (safek
sakkana) so that we do not claim that every
concern or doubt that occurs to him when faced with the need to save a life
will be considered questionable. For example, if a man is drowning in a river
and there is a another man who knows how to swim and is able to save him but he
is hesitant to act because perhaps the cold water will harm him and cause him
to catch a cold - is this called “safek sakkana”? Or when he hears the screams of his neighbor
who cries for help because men have attacked him, is it possible to say that he
is exempt from helping in all situations like this because of the concern that
perhaps they will injure him? We must say that this situation requires
guidelines.”
It
appears to me that the guidelines are simple - by evaluating the level of
danger by the willingness of a person to save his wealth from destruction. The
evaluation needs to be the following: if one would refrain from jumping into a
river to save his wealth that the river has swept away on account of a concern
for the danger of cold water - it appears that in this instance it would be
categorized as a safek sakkana.
Or if he were prepared to forgo his possessions and belongings as long as he
would not need to enter in a place of attackers, and similar cases. However, on
account of a great loss, he would not refrain, this proves that in
truth, there is no danger (i.e. he does not consider the situation to be
a serious danger) and certainly he is obligated to come to the aid of his
fellow, as it is written, “do not stand over your neighbor’s blood. This is
simple.”
Rabbi J.
David Bleich writes that Rabbi Unterman’s approach can be easily applied in a
medical context as well.[48] He
argues that:
“If a physician wishes to know
whether he should expose himself to a certain degree of risk, let him assume
that the fee offered for this necessary treatment is an exorbitant one. Would
he be willing to accept the risk to earn a small fortune? If the answer is in
the affirmative, he should also regard the preservation of a life as sufficient
motive. Under such circumstances it should be anticipated that the physician
will subject himself to the same degree of risk in order to preserve a human
life without regard for the size of the fee or even the absence thereof. For
the medical practitioner treating patients in a clinical setting in which there
is some danger to the physician, the appropriate rule of thumb is whether the
physician regards the risk as being so grave that no possible fee would make
the risk worthwhile to him. But if the same physician is prepared to set aside
those concerns for a fee commensurate with the danger, it follows that, even if
the patient is charity case, the physician should be advised to accept the risk
as inherent in what is expected of all human beings in terms of their
obligation vis-à-vis their fellows.”
As Rabbi
Bleich points out, this analysis only applies in certain situations. Some risks
are so minor that they are treated as non-existent and the physician clearly
has an absolute obligation to treat despite the minimal risk. Conversely, some
risks are so great that treatment is virtually suicidal and the physician
should not be expected, and may not be permitted, to treat. Rabbi Bleich argues
that it is to the intermediate situations that Rabbi Unterman’s approach
applies – those situations in which the physician is within his moral rights to
refuse to treat, yet is halachically permitted to undergo the risk and treat.
Rabbi
Bleich further asserts that while no individual can be compelled to enter into
a dangerous profession, society is obligated to create a system in which all of
its members will receive appropriate protection from fires, live in a safe
environment, and receive healthcare, even if that entails some risk to the
firefighter, policeman, and medical practitioner. He therefore argues that
society must use its resources (such as prestige and money) and confer benefits
to attract qualified people to these professions and make such benefits
contingent upon the physician agreeing to accept a degree of risk that society
deems reasonable and necessary. As such, in return for the physician bearing
this responsibility, society must be reasonable in its demands and not ask the
physician to enter into situations threatening excessive danger.
Such an example becomes apparent when retrospectively
considering the September 11, 2001 attacks on the World Trade Center Twin
Towers. Hundreds of brave police and firefighters lost their lives attempting
to rescue the people trapped in the towers. Due to the extraordinary
circumstances, they probably did not recognize the tremendous risk in which
they were placing themselves when they entered the buildings. Had it been known
that there was a high likelihood that the towers might collapse, even from a
secular perspective it would have been unreasonable for society to have
expected them to enter, and Jewish law would almost certainly have discouraged
or barred them from entering. As previously discussed, this is true despite the
increased latitude that firefighters are granted by Jewish law to risk their
lives, due to the intrinsically dangerous nature of their life-saving work.
Such latitude only extends to reasonable risk that they are trained to
undertake.
As a
final caveat, it is sensible to expect that while an individual is not
obligated to enter into a dangerous profession, the time to decide that one is
risk-averse is before one joins the profession, not at the moment of danger
when lives are on the line. A firefighter cannot reasonably choose to avoid
exposure to fires that firefighters normally extinguish once he has chosen to
enter the profession, undergone suitable firefighting training, and now stands
before a burning building with endangered people in the building.[49]
Practical
Applications
The
practical implication of these rulings is that a physician, like anyone else
faced with potential risk to save his fellow, must be intellectually honest in
every case of treating a patient with a communicable disease. If the risk to
the physician is very great, then he is foolish to risk his life. On the other
hand, if the risk to himself is very small, then he has no justification to
refuse treating the very sick patient. The risk to the endangered person and
the risk to oneself must be weighed. If one wishes to "save" someone
who is in minimal danger, then he is permitted to take virtually no risk
himself. On the other hand, if a boat with passengers who cannot swim is
sinking and one is a qualified lifeguard, then one is required to take the very
small risk inherent in saving the drowning victims.
Obviously,
when calculating the risk to the physician, we assume that the physician will
be taking all reasonable precautions in treating the sick patient. In the case
of AIDS, where we now know that the risk to the treating physician is minimal,
particularly when no invasive procedure is performed, there is little basis for
refusing to treat. The obligation to treat when there is a very small danger is
based on the concept of shomer petaim Hashem,[50] that is, God
watches over the simple in their activities of daily life.[51] One must not
allow prejudice and paranoia to influence this issue. The physician must
evaluate whether the risk of treating the contagious patient exceeds the level
of risk that he is usually and habitually willing to take.
Thus,
until the healthcare professional was assured that there was a relatively safe
way to treat a patient with a deadly contagious disease (such as SARS or HIV),
there was a justification to refuse to treat the patient. There are precedents
for such a position from an actual case[52] that came
before a prominent Israeli halachic authority. Rabbi Yitzchak Zilberstein was
asked whether a physician in her first trimester of pregnancy is obligated to
treat a patient with Rubella (German measles). Contact with the patient posed a
20% risk of the physician developing the disease, with an associated high risk
of birth defects, miscarriage, or stillbirth. Rabbi Zilberstein ruled that the
possibility of miscarriage represented a significant potential threat to the
physician's life and she was therefore not obligated to treat the patient.
The issue
of self-endangerment to save another does not only affect physicians. For
instance, the issue of whether one may donate a kidney is dealt with in a
similar way, with opinions ranging from calling the action a middat chasidut
(extraordinarily selfless) to calling the donor a chasid
shoteh (a pious fool). Most halachic authorities
take the former position, because the risk to the donor is considered
relatively small.[53]
Nevertheless, one is definitely not required to donate a kidney, even to save
someone’s life, since there is a small risk of death from anesthesia, the
surgery itself, and due to the small risks associated with having only one
kidney. Of interest, Rabbi Yosef Shalom Elyashiv,
arguably the greatest living halachic authority in Israel, rules that one must
undergo pain and suffering to save the life of someone else.[54]
The
Special Case of Epidemics
Historically,
the consensus of halachic opinion has been to flee in times of “plague.” Rabbi
Immanuel Jakobovits, former Chief Rabbi of Great Britain, discussed this issue
in his ground-breaking treatise, Jewish Medical Ethics, published in 1959.[55] He
writes that “[t]his verdict was unanimous; there is no record of a dissenting
opinion anywhere in Jewish literature.”[56] Rabbi Moshe
Isserles, in his glosses to the Shulchan Aruch
describing the prohibition of exposing oneself to danger, rules that “it is
proper to flee from a town when a plague has broken out; and one should leave
the place at the beginning of the outbreak, but not at the end.”[57] Such a
tradition dates back to the time of the Bible (Tanach), when the prophet
Jeremiah instructed the people “Whoever resides in the city will die by the
sword, or by famine or by pestilence, but whoever goes out and defects to the
Chaldeans who are besieging you shall live.”[58]
The
Talmud teaches a similar conduct in time of epidemic. The Talmud[59] states
that “if there is a plague in the city, gather in your feet.” This is
interpreted to mean that at the beginning of a plague, one should immediately
flee, but once the plague has taken hold, it is better to remain in the city.[60]
Yet,
despite the general prohibition of endangering one’s life, permission is
granted to undergo risk for communal benefit. Rabbi Shlomo Luria, the author of
the commentary Yam Shel Shlomo,[61] commenting
on the aforementioned Talmudic teaching, notes that:
“. . . There are those who wish to learn that
during a plague it is forbidden to flee [the city] and there is a danger
involved with doing so... However, I found it written[62] in the name
of great halachic authorities that it is permitted [to leave]... But
nevertheless, if it is within his power to save others either with his body or
with money, heaven forbid that he should refrain from doing so and remove
himself from the suffering of the people. . . But, if heaven forbid he can make
no difference (i.e. he cannot help the others), then we act according to what
was written [in Tractate Shabbot 32A] that a person
should not remain in the place of danger. . . And we see great people that went
and fled to another place [in time of plague]. Regarding the Talmudic statement
that one should ‘gather in your feet (and remain in the city),’ this applies
when the plague has begun and already become strong (he might already be
infected and might spread the plague) and more danger may be presented by
travelling than by the plague itself. In such a case, one should stay
sequestered. However, early in the plague, it is prudent to flee. Therefore, it
appears that if a plague has infected the city, one is obligated to flee if he
has the ability. The exception is if he has already suffered from the plague
and recovered, for the world knows that he has nothing to fear.”
This line
of reasoning would imply that in the case of an epidemic, the only two groups
of people who should remain in the affected area are those who are immune (and
thus have little risk) and those who can help the public. This implies that one
may (and possibly should) risk one’s life to treat the community. One source[63] even
implies that one may choose to sacrifice oneself to save others. Nevertheless,
it is almost unanimous that one is not required to do so.
Rabbi Yaakov Weiner, Dean of the Jerusalem Center for
Research in Medicine and Halacha, stimulated by the implications of Rabbi
Luria’s commentary, suggests an explanation for how someone could be obligated
to endanger his life by remaining in the city, in a situation where he would be
able to help others. He opines that the rationale behind the possible
obligation to risk one's life for the community in time of epidemic must be
understood in light of our understanding of the Babylonian Talmud's assertion
that one is not required to enter into a situation posing a questionable danger
to save someone else from a definite danger. In that case, there is only one
endangered person and one rescuer. In such a case we might ask why the
endangered person's life is more valuable than the rescuer. But in the case of
epidemic, where there are many endangered people, and the risk of many more
becoming sick, even the Babylonian Talmud might concur that one may risk one’s
life to safe the community.[64]
Rabbi
Weiner then contends that:
“With respect to public health workers who
treat groups of people suffering from contagious life-threatening diseases,
even if there would be an actual danger involved to their lives, they would not
only be permitted to treat (endangering themselves in order to help many), but
would indeed be obligated to (for they may not remove themselves from the
community).”
After
constructing a very specific criteria governing exactly when a healthcare
worker is obligated to endanger himself to treat an epidemic,[65] he
proposes the following encapsulation:
“This means that if the patient has a high
probability of dying from the contagious disease, then before the health worker
is allowed to treat, it must be the case that the probability of contracting
the disease must be very low. Conversely, if the disease has a low mortality
rate, then the health worker may treat even if the probability of being
infected is high. (As long as he doesn't put himself into a greater danger then
those that he is treating.)
In a situation in which the patients suffer from incurable contagious
diseases and remain with only short term life, it would seem to this author
that it would be prohibited for a health worker to endanger his long term life
in order to save many who only have short term life expectancy. One's full life
would have preference over the short term life of many.”
Bikkur Cholim (Visiting the Sick)
The mitzvah of bikkur cholim plays an important role in Jewish society. While
today visiting the sick is considered more of a social responsibility, for many
centuries dating back to Biblical times, visiting the sick was a very practical
necessity, since hospitals did not exist and patients could have been left helpless
if unable to fend for themselves.[66]
This
mitzvah is composed of three main components: performing necessary housekeeping
functions (such as cooking and cleaning), praying for the patient’s recovery,
and providing emotional support.[67] The Code
of Jewish Law elucidates the details of exactly how this mitzvah is
performed, including who should visit whom, when they should visit, and which
patients should not be visited due to their particular illness.[68] In
light of the strict restrictions on endangering one’s health discussed earlier,
is visiting a contagious patient included in the mitzvah of bikkur
cholim?
This
question is a matter of debate in the Jewish legal sources. Rabbi Immanuel
Jakobovits[69] points
out that while Rabbi Moshe Isserles rules that one should not distinguish
between contagious and non-contagious patients, with the exception of leprosy,[70]
“others maintain that no one can be expected to endanger his life for the
fulfillment of this precept.”[71]
Elsewhere,[72] Rabbi
Jakobovits asserts that “[a] recent re-examination of this question reaches the
conclusion, based on several Talmudic narratives[73] – that the
ruling of Isserles applies only to an infection which would not endanger the
life of the visitor even if he caught it, such as jaundice, but that one is not
required to risk one’s life for the sake of fulfilling merely the rabbinical
precept to visit the sick; nor can anyone be compelled to serve such patients.”[74]
According to Rabbi Jakobovits, it was the view of those who felt that one is
not obligated to visit and care for those with serious contagious diseases that
became the accepted practice.[75] In
fact, the standard became to appoint special designated people to care for
patients with serious contagious diseases and exempt the usual caretakers.[76]
Rabbi
Yekutiel Greenwald considers the question of visiting and assisting patients
with severe contagious diseases in his 20th century work titled Kol Bo Al Aveilus.[77]
Garnering support from the ruling of the Jerusalem Talmud mentioned previously,[78] he
rules that if there is hope for recovery of the patient from the illness, one
is obligated to assist him. His rationale is that if he does not visit the
patient, the patient will surely die and since it is a definite danger to the
sick person, but only a safek sakkana (questionable or small danger) to the visitor,
there is an obligation to help. However, if there is no hope of saving the
patient, Rabbi Greenwald cites Maimonides[79] and agrees
that one should not enter any danger to visit and assist the patient.
Are
Physicians Different?
The last
issue to consider is whether physicians, by virtue of their role in society,
have a different responsibility to risk their lives to save others. Rabbi
Eliezer Yehuda Waldenberg (known as the Tzitz
Eliezer after his multivolume halachic work) deals with this exact
question. Dr. Avraham Steinberg, author of the Encyclopedia of Jewish Medical
Ethics, categorized the rulings of Rabbi Waldenberg in the following way:
"In
principle, a person may not place himself in possibly life-threatening danger
in order to save his neighbor’s life. However, when discussing physicians, this
law is somewhat modified. It is permitted for a physician to assume the risk of
treating patients with any type of contagious disease. Indeed, he is credited
with the fulfillment of an important religious duty. When preparing to treat a
patient with a contagious disease, the physician should pray to God for special
guidance and protection since he is endangering his own life. A military
physician is permitted to render medical care to a wounded soldier in a combat
zone although he is endangering his own life. This applies even if it is
doubtful whether the wounded soldier will live, die, or be killed. Similarly,
another soldier is allowed to place his own life in danger in order to rescue a
wounded comrade from the combat zone."[80]
Rabbi
Waldenberg clearly rules that physicians must recognize the danger into which
they enter and pray for divine protection, but that they do have an extra
obligation to heal the sick and they are permitted to endanger themselves to
treat contagious patients.[81] Going
further, Rabbi Shmuel HaLevi Wosner, author of Shevet Halevi, rules that it is forbidden for
physicians who can be of assistance to flee and to avoid their duty; rather they
should protect themselves as much as possible in order not to be infected,
according to the medical regulations of their time.[82] Dr. Avraham Avraham reports[83] that noted posek (religious authority) Rabbi Yehoshua Neuwirth[84] told
him that if a physician refuses to treat a contagious patient, he transgresses
the Biblical prohibition of “do not stand over your neighbor’s blood.”[85]
However, Rabbi Neuwirth concludes, if the danger is substantial, one is not
obligated to endanger oneself, but one may if one wishes.
The
standard, however, is different on the battlefield. In times of war, the usual
caveat that one’s own life comes before that of one’s friend[86] is
waived and everyone, including the soldier, the medic, and the physician must
risk their lives to rescue their comrades from a definite danger, even if they
must enter a possible danger (safek sakkana) to do so.[87]
All of
these views are consistent with the traditional role of the physician
throughout history who risked his life for the sake of his patients.
Conclusion
Physicians
have treated the sick for millennia, often at the cost of their health or their
lives. For an equally long time, Jewish law has debated the parameters by which
it allows one to risk his/her life to save others. H1N1 only presents the most
recent occasion to consider this question. While a small degree of risk need
not preclude a physician from treating contagious patients (or anyone else with
expertise from saving others in dangerous situations), intellectual honesty and
accurate information regarding risks and benefits are required. Unfortunately,
all relevant information is not always available when the need for treatment
arises. While one should not be overly cautious at the expense of the lives of
others, there is a limit to how much risk one may or must undertake.
Physicians
are expected to undergo a greater degree of risk than others, due to their
training and the crucial nature of their work, but still must be prudent in
protecting their lives. This obligation extends to other people as well, whose
task it is to enter dangerous situations to save others, such as soldiers and
probably fire fighters. A lesser degree of risk for laypeople is usually
acceptable when visiting and caring for the sick.
[1] World
Health Organization, "Summary of probable SARS cases with onset of illness
from 1 November 2002 to 31 July 2003,”
http://www.who.int/csr/sars/country/table2004_04_21/en/index.html. The last
naturally occurring case occurred in June of 2003.
[2] The
documented cases of seroconversion after an occupational exposure were as
follows: Nurses (24), clinical lab technicians (16), nonsurgical physicians
(6), non-clinical lab technicians (3), housekeeper/ maintenance workers (2),
surgical technicians (2), embalmers/morgue technicians (1), health
aides/attendants (1), respiratory therapists (1), and dialysis technicians (1).
There were no documented cases of seroconversion after an occupational exposure
in dentists and dental workers, EMTs/paramedics, surgeons, other technicians
and therapists, or other healthcare occupations. These statistics remained
unchanged as of September 14, 2007, as per the Centers of Disease Control.
http://aids.about.com/od/dataandstatistics/qt/healthstats.htm
[3] See
for example: Rosner, F., “Communicable Diseases and the Physician’s Obligation
to Heal,” Medicine and Jewish Law, Vol. I, Jason Aronson, Inc., New
Jersey, 1990, pp.65-87; Steinberg, A., “AIDS: Jewish Perspective,” Medicine
and Jewish Law, Vol. II, Jason Aronson, Inc., New Jersey, 1993, pp.89-102;
Bleich, JD., “AIDS: Jewish Concerns,” Bioethical Dilemmas: A Jewish
Perspective, Ktav Publishing House, Inc, Hoboken,
NJ, 1998, pp. 131-185; Rosner, F., “AIDS: A Jewish View,” Biomedical Ethics
and Jewish Law, Ktav Publishing House, Inc,
Hoboken, NJ, 2001, pp.91-108.
[4] The
World Health Organization declared the H1N1 virus a global pandemic on June 11,
2009.
[5] http://www.nola.com/health/index.ssf/2009/07/swine_flu_vaccine_priorities_i.html United States Health and Human
Services Secretary Kathleen Sebelius has stated that pregnant women, health
care workers and adults caring for infants less than 6 months of age are among
the most vulnerable segments of the population.
[6]
http://www.whitehouse.gov/assets/documents/PCAST_H1N1_Report.pdf. The Report of
the President’s Council of Advisors on Science and Technology, released on
August 24, 2009. “In contrast, the 30,000–40,000 annual deaths typically
associated with seasonal flu in the United States occur mainly among people
over 65.”
[7] Ibn
Ezra (Exodus 21:19) is a notable example, writing that the command to heal
"is a sign that permission has been granted to physicians to heal blows
and wounds that are externally visible. But, all internal illnesses are in
God's hand to heal." The Ibn Ezra's case is not a hard one to make. The
Torah itself instructs that if we listen carefully to the mitzvos
of the Torah "then any of the diseases that I placed upon Egypt, I will
not bring upon you, for "I am God, your Healer" (Exodus 15:26). This
verse implies that God does not need man to cure the afflictions that He
creates. The Ibn Ezra argues that the meaning of this Torah passage is that
because God acts as the (sole) healer of all illness, we will not need
physicians. The Talmud (Sanhedrin 101a) interprets this verse as
explaining that God will not bring diseases upon those who follow his commands,
but even for those who do not obey and are stricken, God remains the Healer.
Rashi explains the verse to mean that the Torah was given as a way of life that
will prevent man from becoming sickened by disease. Many other interpretations
are brought for this enigmatic passage, including that Heavenly cures come
easily without side affects (Ba’al HaTurim) and that
God cures even mental and spiritual illnesses (Malbim).
Despite the variety of interpretations, the consensus of opinion rejects Ibn
Ezra’s approach, permitting and even obligating the physician to heal, and
ruling that man is a partner with God in healing disease. This approach is
codified in the Shulchan Aruch, Yoreh Deah 336:1 with the words “The Torah gives
permission to the physician to heal; moreover, this is a mitzvah (religious
obligation) and it is included in the mitzvah of saving a life. . .” See
Eisenberg, D, “The Mandate to Heal,”
http://www.aish.com/societyWork/work/The_Mandate_to_Heal.asp.
[8] Leviticus
19:16
[9] Exodus
21:18-19
[10] Because
if the victim died, it might be a capital crime.
[11] While
this is the common understanding, Nachmanides (Ramban) in his Biblical commentary to Leviticus 26:11 is an
important contrary opinion advocating a limited scope for human healing. Nachmanides explains that while it may be permitted for the
doctor to heal (based on Exodus 21:19), the patient should not seek medical
attention from a physician, but should rely on God for healing. He limits the
role of the physician to providing advice on healthy lifestyle.
[12] Deuteronomy
22:2
[13] Maimonides,
Perush HaMishnayo,
Nedarim 4:4. Torah Temimah
(Exodus 21:19 and Deuteronomy 22:2) explains that Maimonides chooses the verse
“you should restore it to him” (Deuteronomy 22:2) as a source for the mandate
to heal over the verse “and he shall cause [the victim] to be thoroughly
healed” (Exodus 21:19) because the verse commanding the return of a lost object
creates an obligation to heal, while the command to cause the victim to be
thoroughly healed only grants permissions to heal.
[14] Deuteronomy
22:8
[15] Mishneh Torah, Hilchos Rotzeach U’shmiras Hanefesh, 11:4
[16] Deuteronomy
4:9 and 4:15
[17] Mishneh Torah, Hilchos Rotzeach U’shmiras Hanefesh, 11:5-16
[18] The
laws of dangerous activities are brought down in the Shulchan Aruch in Yoreh Deah 116
regarding forbidden foods and in Choshen
Mishpat 427 regarding the mitzvah of ma’akeh
and removing hazardous conditions.
[19] Shulchan
Aruch, Yoreh Deah 116:5
[20] Shabbat
32a and Rosh Hashanah 16b
[21] Pesachim
8a
[22] Yuma
11a, Kiddushin 39b
[23] Weiner,
R., “Treatment of Contagious Diseases,” available from the Jerusalem Center for
Research, P. O. Box 57058, Jerusalem, Israel (http://www.j-c-r.org)
[24] Shabbat
129b, Nida 45a, Yevamot 72a, Ketubot 39a, Avodah
Zarah 30b
[25] Psalms
116:6
[26] Baba
Metzia 111b-112a
[27] Rabbi
Moshe Feinstein dealt with issue of professional risk in a responsa dealing
with whether a Jew may play baseball. Iggrot
Moshe, Choshen Mishpat I:104
[28] See
Eisenberg, D., “Mandate to Heal,”
http://www.aish.com/ci/be/48881967.html
[29] Deuteronomy
4:9 & 4:15. See Shulchan Aruch, Choshen Mishpat 409:3 and 427:8.
[30] Sanhedrin
73a
[31] Leviticus
19:16
[32] Mishneh Torah, Hilchos Rotzeach U’shmiras Hanefesh 1:14
[33] Beit
Yosef, Choshen Mishpat 426.
[34] Jerusalem
Talmud, Terumot, end of 8th chapter
[35] S’ma, Shulchan Aruch, Choshen Mishpat, 426:2
[36] Sanhedrin
73a and Nida 61a
[37] Pischei Teshuvah,
Shulchan Aruch, Choshen
Mishpat, 426:2. The actual ruling of the Babylonian Talmud is probably
found in Sanhedrin 73a; see Maharam Shik on the 613 mitzvos,
mitzvah 238, and Aruch L’ner,
Sanhedrin 73a. Alternatively, the argument may be that found in Baba Metzia 62a, regarding the disagreement between Rabbi
Akiva and Ben Petura regarding whether someone must share the last of their
water with someone else if it will possibly endanger the owner’s life. The Ohr Someach, Hilchos Rotzeach U’shmiras Hanefesh 7:8,
points out that Maimonides’ ruling that an inadvertent murderer may not leave a
city of refuge, even to save the whole Jewish nation, proves that one may not
enter a questionable danger to save others from a definite danger. Minchas Chinuch 296
rules that just as all mitzvos in the Torah are
pushed off for a possible serious danger (safek
sakkana) based on the verse, “and you should live
by them,” (Leviticus 18:5) so too the mitzvah of “Do not stand over your
neighbor's blood” is superseded by a possible serious danger.
[38] Responsa
Radbaz, Volume 3:627 (1052)
[39] Responsa
Radbaz, Volume 5:218 (1582)
[40] Nishmat Avraham, Orach
Chaim, 329:6 (Hebrew)
[41] Zilberstein,
Y., “Endangering One’s Own Life in Order to Save that of Another,” Assia,
journal 41 (11:1), 1986, pp. 5-11. Republished in Sefer Assia 7, Dr.
Falk Schlesinger Institute for Medical-Halachic Research, Jerusalem, 1993, pp.
3-9.
[42] Pischei Teshuvah,
Shulchan Aruch, Choshen
Mishpat, 426:2
[43] Bava
Metzia 33A
[44] Shulchan
Aruch, Choshen Mishpat,
264:1
[45] Shulchan
Aruch, Orech Chaim,
329:8
[46] Mishnah
Brurah, 329:19
[47] Responsa
Shevet M’Yehuda
1:9.
[48] Bleich,
JD., “AIDS: Jewish Concerns,” Bioethical Dilemmas: A Jewish Perspective, Ktav Publishing House, Inc, Hoboken, NJ, 1998, pp.
164-169
[49] This
analogy was told to me by Dr. Avraham Avraham, author
of Nishmat Avraham.
[50] Psalms
116:6
[51] See
Eisenberg, D., “Taking a Risk,”
http://www.aish.com/ci/be/48880977.html
[52] Zilberstein,
Y., “Endangering One’s Own Life in Order to Save that of Another,” Assia,
journal 41 (11:1), 1986, pp. 5-11. Republished in Sefer Assia 7, Dr.
Falk Schlesinger Institute for Medical-Halachic Research, Jerusalem, 1993, pp.
3-9.
[53] Rabbi
Ovadia Yosef (Responsa Yechavah Da’at. 3:84 and Halacha U’Refuah,
vol. 3, Regensberg Institute, Jerusalem, 1983, pp.61-63), Rabbi Yaakov Yosef
Weiss (Minchat Yitzchak, 6:103, p.2),
Rabbi Eliezer Yehuda Waldenberg (responsa Tzitz
Eliezer 9:4 and 10:25:7), Rabbi Moshe Meiselman (Halacha U’Refuah, vol. 2, Regensberg Institute, Jerusalem,
1981, pp.114-121), Rabbi Moshe Hershler (Halacha U’Refuah, vol. 2, pp.122-127). Nevertheless, see Rabbi
Yitzchok Yaakov Weiss (Responsa Minchat
Yitzchak 6:103) who voices concern regarding the danger of the surgery and
the future risk of having only one kidney. However, Rabbi Weiss permits the
donation if one will definitely save the life of the recipient.
[54] Kovetz Tshuvos,
Vol. I, Siman 124. Similarly, Dr. Avraham Avraham
records that Rabbi Shlomo Zalman Aurbach wrote to him
that “if the seriously ill patient is present (and known to him. . .) it is
certainly permissible for a person to even undergo much suffering, for example,
by donating his kidney, to save the life of the patient.” (Nishmat
Avraham, Vol. 2 Yoreh Deah, p. 347
(2003, Mesorah Publications, English).
[55] Jakobovits,
I., Jewish Medical Ethics, Bloch Publishing Co., NY, 1959, pp. 106-110.
[56] Ibid.
p. 12 cites Shnei Luchot HaBrit (Shlah), Sha’ar Ha’otiot as
affirming the ruling that fleeing from plague was accepted Jewish practice and
decrying the “criminal negligence of parents who failed to evacuate their
children from a district smitten by an outbreak of smallpox.” He states that
this ruling was reiterated by Rabbi Yechiel Epstein in Kitzur
HaShlah in 1683. Nevertheless, the position that
fleeing from plague would be efficacious did raise theological questions
regarding whether an individual’s lifespan is preordained. See Rabbeinu Bachaya, Numbers 16:21, Rashbash
(Rabbi Shlomo Duran) 195, and Pischei Teshuvah, Yoreh Deah 116:8.
[57] Shulchan
Aruch, Yoreh Deah 116:
5 based on Responsa Maharil 41
[58] Jeremiah
21:9
[59] Bava
Kama 60b
[60] Responsa
Maharil 41
[61] Yam
Shel Shlomo, 6:26
[62] Responsa
Maharil 50
[63] Migdal
Oz, Even Bochan, 85
[64] Ibid.
Weiner, R., “Treatment of Contagious Diseases.”
[65] Rabbi
Weiner writes: “If fewer than ten individuals but more than one have contracted
any contagious disease (and it would thus not be defined as a community), they
may be treated, but no obligation devolves upon the health workers. However, if
only one patient has been admitted to the hospital (even though throughout the
city there are many) since one may not put one’s life in danger for only one
individual, separating himself from a community would neither obligate nor
permit him to enter a risk situation if not for the permissibility of earning a
livelihood. (The rule of not separating oneself from a community only becomes
an obligation when healing is permissible). In order for a health worker to be
obligated to risk his life treating a person suffering from a contagious
life-threatening disease, the following three conditions must prevail: 1. There
must be at least ten persons in the city suffering from contagious diseases. 2.
At least two of these persons must be present in the health worker's care. 3.
The joint probability of 1. the probability of the health care worker's
contracting the disease and 2. the probability of his dying of it as a result
of caring for the patient must be less than or equal to the expected
probability of the patient's living. For one does not have an obligation to put
oneself into a greater danger than the one he is treating. In the case of three
or more patients, the joint probability associated with each patient is
calculated. The health worker can care only for those individuals for whom the
joint probability is less than or equal to the expected probability of those
patients living.”
[66] See
Kottek, S., “The Hospital in Jewish History,” Reviews of Infectious Diseases,
Vol. 3, No. 4, July-August 198, pp. 636-9.
[67] Nedarim 40a.
[68] For
a comprehensive and practical guide to the laws of visiting the sick, the book
“Visiting the Sick: A halachic and medical guide with down-to-earth advice” by
Rabbi Aaron Glatt, MD (Mesorah Publications, Inc.,
NY, 2006).
[69] Jakobovits,
I., Jewish Medical Ethics, Bloch Publishing Co., NY, 1959, pp. 106-110.
[70] Responsa
Rema, 19 (end)
[71] Ibid,
Jakobovits, citing Rabbi Joseph Molko, Shulchan Gavo’ah, cited in Sedei
Chemed, vol. 1, s.v. “beit,”
no. 116 and Rabbi Samuel di Medina, Rashdam , Choshen Mishpat 346.
[72] Jakobovits,
I., Journal of a Rabbi, Living Books, NY, 1966, p. 156.
[73] Nedarim 39b; Berachot
22b; see also Rashi, Shabbat 30a
[74] Responsa
Beit David, nos. 22 and 108, cited in No’am,
vol. 2, p. 55.
[75] See
Eisenstein, J.D., Otzar Dinim Uminhagim, (NY, Hebrew Publishing Company, 1938) who in
the section regarding “visiting the sick and times of plague” writes: “One does
not visit those who are ill with raatan, leprosy, or
contagious diseases and one should not enter into danger. . . And thus it is
the custom not to visit plague victim except by special people who are hired
for that purpose.” But for those who do visit, “The book Midrash Talpyot (anaf 1) it
writes that those who visit plague victims should not sit, but only stand and
pace until they leave from there.”
[76] Rabbi
Jakobovits reports that approval was expressed by the Shulchan Gavo’ah for the custom to only assign visitation to
specially appointed, highly paid, people. He further reports that: “The 17th
century records of the Portuguese Congregation in Hamburg indicate that even
the communal doctors and nurses were exempt from the obligation to attend to
infectious cases and that the required services were rendered by volunteers
entitled to special remuneration.” This is despite the fact there is a concept
that a messenger to do a mitzvah should not fear harm. See the discussion above
in this article entitled “Situations in which risk is permitted.”
[77] Kol
Bo Al Aveilus, Vol. 1, chapter 1:2, footnote 5,
p. 17.
[78] Jerusalem
Talmud, Terumot, end of 8th chapter. Rabbi
Greenwald writes that he recognizes that the Babylonian Talmud and many later
rabbinic decisors disagree with the obligation to
enter a questionable danger to save another from a certain danger.
[79] Mishneh Torah, Hilchos Rotzeach U’shmiras Hanefesh 1:7.
[80] Steinberg,
A., "On the treatment which exposes the physician to danger," Jewish
Medical Law: A Concise Response, Beit Shammai Publications, New
York, 1989, Part 10, chpt. 11, pp. 177-78.
[81] Responsa
Tzitz Eliezer vol. 8, chpt. 15, 10:13 and vol. 9, chpt.
17:5
[82] Responsa
Shevet HaLevi
vol. 8 chpt. 251:7
[83] Avraham,
A., Lev Avraham: Halachot of Refuah
for Patient and Caregiver, (updated and expanded), Feldheim Publishers,
Jerusalem, 2009, pp. 356-57. See also, Nishmat
Avraham, Orach Chaim, 329:6, pp. 502-4 and Choshen Mishpat 427:4:8, pp. 247-51 (Hebrew
second edition)
[84] Author
of Shmirat Shabbat K’hilchato
and noted posek.
[85] Leviticus
19:16
[86] Baba
Metzia 62a
[87] Responsa
Tzitz Eliezer vol. 12, chpt. 57