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IN-DEPTH FEATURES
Editor's Note: The Hebrew Musaf Shabbos Kodesh this past
Pesach focused on the general theme of medical issues that
affect the community. We have already published one piece
from that issue ("An Interview in the home of the Bostoner
Rebbe Shlita") and in this issue we are publishing two more.
More are in preparation.
*
Modern medicine and the conditions under which it is
practiced give rise to a wide range of situations that touch
on varied areas of halochoh. B. Re'eim selected several
questions that unfortunately arise relatively frequently and
submitted them to HaRav Yitzchok Silberstein, rov of the
Ramat Elchonon neighborhood on Bnei Brak and one of today's
foremost authorities on medicine and halochoh. We are
grateful to HaRav Silberstein for his responses.
Question One: Does a Doctor's Opinion have the
Authority of Halochoh?
That is, does a doctor's opinion have the same weight as a
rov's ruling, or is it simply a doctor's "opinion," i.e. an
expert's advice — but the final decision rests with the
halachic authority?
Response: When a rov concurs with a medical opinion
that he sent someone to a doctor to receive, there is no
question that the doctor's advice should be followed. The
real question arises when the rov and the doctor do not see
eye to eye. Therefore, if a rov recommends that the doctor
prescribes a certain medication for the patient and the
doctor doesn't agree, either because of its side effects or
because other options have not yet been exhausted, he must
not issue a prescription before he calls the rov and explains
his position.
The gemora (Yevomos 121) tells us that Rav Shila once
issued an erroneous halachic ruling. "Rav said to Shmuel,
`Let us place a ban on him.' Shmuel said, `Let's [first] call
him and hear what he has to say.' " They sent for Rav Shila
and he explained his reasoning. It transpired that he had
made a mistake and he admitted to having done so. Rav applied
a posuk to Shmuel: "Salvation results from seeking
plenty of advice" (Mishlei 11:14) — by
consulting Shmuel he was saved from unjustly imposing a
ban.
The Chofetz Chaim notes that it would have been considered a
sin on Rav's part had he imposed a ban on Rav Shila and he
derives a practical halachic ruling from this (Issurei
Loshon Hora, Klal 10). A person should never dismiss his
colleague's opinion, especially that of a talmid
chochom, before he first discusses it with him and hears
his rationale. In the above case, if there is substance to
the doctor's views and reservations, the talmid
chochom will certainly take them into account.
A story that appears in [the biography of the Chazon Ish]
Pe'er Hador (vol. IV, pg. 188) is relevant to our
topic. One Shabbos a dog attacked a little girl and inflicted
several deep bites on her. The doctor who examined her
advised the parents to consult a specialist in Tel Aviv
[involving travelling by car from Bnei Brak]. The parents
asked the Chazon Ish for his opinion. After examining the
bite marks the Chazon Ish said, "Even though there seems to
be no danger you must still follow the halochoh that obliges
you to heed the doctor's instructions. You must travel."
What should the doctor do after he has spoken to the rov and
the rov still insists that the patient should be given the
medication?
In Medrash Tehillim we find, " `And he succeeds in
everything he does' (1:3) — everyone needs his advice,
like Rabbi Elazar ben Aroch, who gave advice that proved
solid and successful. They asked him, `What are you, a
prophet?' He said, `Neither a prophet nor the son of a
prophet. But I have received a tradition from my teachers
that advice that is given with pure motives proves
enduring."
The gemora also mentions "an incident involving a well
and a rat" (Taanis 8, Rashi beg. Meichuldah
uvor), in which Chazal saw the tremendous power of a
person's faith. It is common knowledge, both among Yisroel
and the nations, that faith can invest even inanimate objects
with the power to play a role, as happened in the account of
the well and the rat.
Therefore, if the medication in question involves no danger
and its side effects have been fully explained to the
patient, he is allowed to follow the recommendation of a
great man whose advice proves reliable in the merit of
Klal Yisroel, who believe in Hashem and His
servants.
It sometimes happens that a rov will refer a patient to a
particular hospital because he considers that the devoted
care he will receive there will play a major role in his
recovery. Nothing negative about any other hospital should be
inferred from such advice. Chazal observe that a person may
not merit being healed by any and every doctor that he turns
to for it is preordained that his suffering will cease, "on a
particular day, at a particular hour, through a particular
doctor using a particular medicine" (Avodoh Zora
55).
Question Two: Using Alternative Medicine
May a patient refrain from accepting conventional therapy and
use alternative methods instead, when doctors tell him that
conventional medicine could cure him? What is Halochoh's
stance with regard to alternative medicine?
Response: Cancer l'a, can be treated by
conventional methods such as radiotherapy and chemotherapy,
though in recent years some patients in distress have been
following an approach known as macrobiotics. The method is
described in a book published in America written by a woman
whose life was saved by it. The question is, may a patient
make his own decision to switch to macrobiotic treatment? It
should be noted that macrobiotics sees the combination of its
methods with conventional therapy as being contradictory.
There is a further question: what if a patient says, "Leave
me alone. I can't bear the suffering that the treatments
entail." Do we take his wishes into account or do we force
him to accept the treatment against his wishes?
The answer is that if a dangerously ill person does not want
the treatment that the doctors have decided is correct for
him, we force it on him. The Rambam writes, "A patient with a
wound on his leg which the doctor sees is spreading and will
eventually kill him — we tie him down and excise the
area of the wound without taking his opinion into
consideration at all. The body is not our property. It is
entrusted to us by the Creator, who has commanded us, "And
you shall live by them" (Vayikra 18:5) — thus we
compel him to do this" (Hilchos Mamrim 2:4).
Several conditions must be met before this halochoh is
implemented, however. Macrobiotics is a faithful imitation of
the methods found in books by Offland, who was advisor to the
King of Persia. The grandson of the Noda BiYehudah writes
that he finds the approach acceptable. However, all he says
is that it appears to him that the [macrobiotic] diet is a
successful idea; he isn't talking about healing cancer. The
Rabbinical Union in America put the method under a ban
because it involves exposure to lectures and reading material
that has links to avodoh zora.
I approached a doctor who practices the macrobiotic method
and asked him what he had to say about it. He told me, "One
of its fundamentals is that the body has a natural ability to
overcome illness, so long as a person refrains from eating
foods or engaging in pastimes that weaken the body and
prevent it from restoring itself. The approach recommends
eating types of food that clear the body of waste and
poisons. Proper chewing is vital."
I asked whether a patient already suffering from cancer can
be cured by clearing wastes from his system and he said, yes.
I asked whether the recommendation of the Noda BiYehudah's
grandson goes as far as supporting that assertion and he
said, no. He also said that there isn't a government in the
world that recognizes macrobiotics as a cancer treatment.
What this amounts to is that the diet is beneficial to a
healthy person to prevent him from becoming ill but if cancer
has already spread, it is of highly questionable benefit.
Doctors say that there is a doctor in America whose life was
saved by macrobiotics but he also received chemotherapy.
So, there are no reliable proofs and we are left with the
problem: how does the Torah view the matter?
The gemora (Yoma 83) brings a difference of opinion
between Rabbi Masia ben Cheiresh who permits, and the Sages
who forbid, feeding a patient the diaphragm of a mad [i.e.
rabid] dog that has bitten him — a remedy that was
employed by the gentiles of those times. The Rambam explains
that the remedy's efficacy had not been established; it had
some weak effect that was not understood and the Sages
therefore forbid transgressing the Torah prohibition of
eating the flesh of an unclean animal for its sake.
What defines "a weak remedy"? People talk about it; there are
rumors that someone took it and was saved, but there is no
logical basis for how it is supposed to work.
At the same time, we ought not to scoff at alternative
medicine even though we don't understand it. We don't
understand how aspirin works either. There are fields where
conventional medicines do not work, certain allergies for
example. There are digestive disorders that homeopathic
remedies have proven more effective than conventional ones in
treating.
There is a scholar who rules that it is forbidden to take
homeopathic medicines because they are not considered as
having been tried and tested. Furthermore [he asserts] the
approach leads to false beliefs. The response of Mishneh
Halachos (vol. X, siman 112) is that homeopathic
medicines are made from natural ingredients and the
literature on the subject contains no errant beliefs.
A couple once came to me, the husband saying that his wife
needed certain medical treatment. He wanted her to go their
regular Kupat Cholim for conventional treatment while
she wanted to have an alternative method, at a cost of three
thousand shekels. Though a husband is obligated to heal his
wife's sickness, he asked her to refrain from wasting money.
She still expressed her desire to receive homeopathic
treatment.
My response to them was as follows. Had you come in the
beginning to consult me as to which kind of medical care to
choose, I would have told you to follow the opinion of a
majority of doctors. The Shulchan Oruch (Orach Chaim
siman 618) rules that if one doctor says that a patient
is capable of fasting on Yom Kippur while another one says
that he isn't, the patient should not fast. If however, two
doctors say that he can fast and one disagrees, we set aside
the single opinion in favor of that of the two. Since most
doctors support conventional medicine, halochoh supports
them.
However, you didn't come to ask me that. Since the wife is
asking for alternative treatment, it is correct to consent.
The Rosh (Bava Kama 88) writes, "A patient ought to
have satisfaction from the doctor"!
I told the husband, "Since your wife will be satisfied with a
homeopathic doctor, it is right that you pay for it. In the
kesuvah you undertook, `I will feed and support you
fully' — with a generous and open hand, not with
stinginess."
Question Three: Plastic Surgery
Today, doctors perform operations to improve people's
appearance. What is Halochoh's view of such measures?
Response: The authorities do not generally permit
undergoing plastic surgery unless there is an extreme need.
Their reluctance is due to the degree of risk involved in
every incision made in the body, as stated in the Ridvaz
(vol. III, #627). See also Chelkas Yoav (vol. III,
#11).
A question was asked concerning a five-and-a-half-month old
baby who was born with a very large birthmark (angioma)
covering both his legs and part of his abdomen. It posed no
danger to health but it bothered his parents, who were
concerned as well by other people's shocked reactions on
seeing it. Laser treatment could remove the mark but due to
the pain the child would have to be placed under general
anesthetic. Also, only part of the mark would be treated each
session, requiring several treatments in all. The question
was, was it justified to anesthetize the baby for treatment
that was primarily cosmetic, rather than medical?
I put the question to my teacher and father-in-law HaRav
Eliashiv. He replied that the treatment should be given now
since it is beneficial to the child and moreover, if not done
now he would be upset with his parents in the future.
Dr. David Sampolinsky related that he asked the Steipler
zt'l whether to perform a cosmetic operation on a baby
who had a blemish in one eye. All the operation would achieve
would be an improvement in the child's appearance. The
Steipler gave his approval, since the operation would be to
the child's benefit.
There is an halachic distinction between a doctor who makes a
mistake while engaged in healing and one who does so while
engaged merely in improving appearance. In the Ramban's
opinion, a doctor is exempted from paying for damage he
mistakenly inflicts in the course of administering treatment
because his mistake was made while engaged in doing something
which is permitted. This applies to plastic surgery as well.
According to Tosafos however, the exemption from damages is a
special enactment for society's benefit (tikkun
ho'olom) — since doctors would not practice if they
were liable to pay damages for genuine mistakes. This cannot
be extended to cosmetic surgery, for society as a whole would
not suffer greatly even if doctors ceased performing such
procedures.
Chovos Halevovos writes that it is a mitzvah for
doctors to heal (Shaar Habitochon, perek 4). According
to Issur Vehetter (60:8-9), a doctor who heals
fulfills the mitzvos of "and live through them (vechai
bohem)" (Vayikra 18:3), "be very careful with your
lives (ushemartem me'od lenafshoseichem)"
(Devorim 4:15) and, "`restore it to him
(vahasheivoso lo)' (Ibid. 22:2) — which
includes restoring his health." It appears to me that these
mitzvos are fulfilled by a doctor who heals ailments or
alleviates pain but not by a plastic surgeon or orthodontist
whose treatment only improves appearance.
ShuT Tzitz Eliezer (vol. XI, siman 41) writes,
"with regard to plastic surgery, which doctors now perform on
numerous people in order to improve their appearance, there
are strong grounds for arguing that this is not what the
Torah refers to when it grants doctors permission to heal.
(It is doubtful whether this can be called `healing.') People
have no right to allow doctors to wound them for this
purpose, nor do doctors have any right to carry out such
operations. We must know and believe that "there is no artist
like our G-d" (Shmuel I, 2:2, Rashi). He designed and
fashioned every one of His creatures with the form that
befits them and we should not alter it."
According to this, even the Ramban may agree that a doctor
must pay for a mistake he made while engaged in plastic
surgery.
Question Four: Paying the Doctor after
Unsuccessful Treatment
Is one obligated to pay the full fee of a doctor whose
treatment was unsuccessful?
A woman needed root canal treatment. Her regular dentist
found one of her canals hard to treat and referred her to an
expert on root canal work, with her root canals still open.
Her dentist told her that when the specialist treated the
troublesome root he would seal all the openings. The
specialist was unsuccessful. The patient reasoned that she
had not received the expert treatment that she had gone to
him for and with her husband's consent she cancelled the
second check that she'd given him. The specialist demanded
payment in full, arguing that he'd made every effort to help
the patient. How does the Torah view this situation?
Response: The same question can arise with every kind
of service provider — not just a doctor. For example,
one calls a plumber to fix a leak and after working all day
he hasn't been able to locate its source. Does he deserve
payment?
From the gemora (Bava Kama 116) and the Nesivos
Hamishpot (335:2) it emerges that a plumber who is called
to repair a leak has the status of a contractor who is hired
to do a specific job. Therefore, if he is unable to do the
job no payment is due. This is the same as someone who hired
a worker to bring him something and the worker didn't bring
it. Although he made efforts he doesn't get paid.
On the other hand, if a patient expires during an operation,
the surgeon's fee is still due.
At first glance the specialist in the above case has the same
standing as a plumber. Since he was hired to do the specific
job of repairing and cleaning the root of the tooth and was
unable to do it, he does not deserve a specialist's fee and
should be paid at the same rate as an ordinary dentist.
I heard from our master HaRav Eliashiv that one can
distinguish between the specialist and a plumber. A patient
goes to a specialist because he wants to be sure that he has
done whatever he can and has not been negligent in caring for
his body or his tooth. A specialist's fee is therefore not
for a successful outcome but for his efforts. When he has
made every possible effort but has not succeeded he must
still be paid for the knowledge that he brought to bear on
the patient's condition.
Question Five: Can One Claim a Refund From a
Charlatan?
An American immigrant posed as a famous, expert surgeon. He
forged letters and made out that he was Dr. Kaufmann, a
famous surgeon. He received a job with one of the health
organizations and amazingly, he carried out a number of
operations successfully. One day, a nurse noticed that he
wasn't following the accepted operating procedures and she
raised the possibility of his being a fake. Her suspicions
proved correct. Is the doctor obligated to return fees he
accepted for private operations that he carried out?
The accepted procedure today is that if a patient requests
that he be operated on by a particular doctor, he pays the
doctor privately (although some surgeons return the fee if
the operation was unsuccessful). Can this doctor keep the
fees that he received?
Response: He is entitled only to the fee due a regular
doctor, not that of a world famous practitioner. Although the
patient can apparently argue that the entire arrangement was
entered into under false understanding for had he known that
the doctor was unqualified he would never have agreed to be
treated by him, the doctor should still be paid the fee that
an ordinary doctor would receive.
However, he doesn't deserve any extra for the reputation and
comprehensive knowledge of a world expert. Any added payment
that the patient made should be returned. Even if the health
network was paying him at the rate of a world expert, he must
return the difference between the fee of an ordinary doctor's
fee and that of an expert.
Question Six: Should Someone whose Function
Will be Hampered when he is Older be Allowed to Practice
Medicine?
A highly competent doctor suffers from juvenile onset
diabetes. Typical future complications of this condition
include loss of sight and of sensation in the hands. Does his
employment now by those who are unaware of his condition
constitute a future public hazard?
Response: It seems that the Torah only addresses the
present situation. If things are okay now, we view the
situation as positive and don't worry about complications
that might surface in another ten years.
I put this question to my teacher and father-in-law HaRav
Eliashiv, together with another question. An eighteen-year-
old girl lost all her teeth and ordered a set of false teeth.
Is she obliged to tell her fiancee about it or can she ignore
it?
HaRav Eliashiv replied that we see from the gemora
(Bechoros 37) that a condition that will manifest itself
in old age anyway is not considered a blemish when it
manifests itself in a younger person. Since everyone expects
to grow old and to suffer deterioration in their eyesight,
the diabetic doctor should be hired and told to monitor his
eyesight in the future. As long as he remains competent he
can continue practicing.
In the second case, he replied that since a Cohen who
lost his teeth is not disqualified from serving in the
Beis Hamikdosh, it is not considered deceitful for a
partner to remain silent about what is thus considered a
minor blemish.
Chazal instituted certain halochos and modified them
for the benefit of society, so that people would not be put
off becoming doctors. For example, the Tosefta rules
that if a qualified doctor who is licensed to practice causes
damage unintentionally, he is exempt from paying. Minchas
Bikkurim writes, "Even though `man is always fully
liable' [for any damage he causes] here they exempted him so
that there would always be doctors to treat people. The
gemora (Rosh Hashonoh 23) also says, "All who go out
[beyond the techum — the distance permitted to
walk from one's place of rest on Shabbos] to save [others]
may return, so that people won't refrain from going to help
others." Gesher Hachaim writes, "A doctor who is
present when a patient expires does not have to rend his
garment [as must other people who are present] for he would
otherwise be unwilling to work as a doctor."
The subject of this question is another such situation. The
gemora in Eruvin (44) says, "All who go out to
rescue can return to their places." This enactment permits
their return into the techum, even bringing their
weapons with them [these are ordinarily forbidden by the
rabbonon].
However, we cannot infer from here that Hatzoloh personnel
can drive home in their ambulances, which involves doing
thousands of melochos that are forbidden by the Torah.
On the other hand, in the case of Hatzoloh a special argument
can be employed to enable them to return. If an ambulance or
a Hatzoloh member is likely to be needed again this Shabbos
in the neighborhood they may return because of possible
danger to life. Thus, Hatzoloh members can return home not
because it is for society's benefit but because their absence
might entail danger to the life of someone else that needs
them.
The job should be given to somebody wise and understanding,
who knows how to broach the possibility of there being danger
to life. Maharash Engel (Shut vol. VI, siman 10)
writes, "I know that the gaon, author of Boruch
Taam, rules that as long as [at least] one of the sons is
saying Kaddish there is no need to inform the other
sons. Although this is not the [generally followed] custom, I
have seen several times when tzaddikim died that not
all the sons were told immediately, only after thirty days
had passed."
Clearly, a patient should never be told that he has no chance
of recovery. When HaRav Isaac Sher zt'l, rosh yeshivas
Slobodka, passed away I was witness to the fact that his
rebbetzin, who was then ill, was not told. A notice at the
entrance to the house requested that visitors, "Please be
careful when speaking to the Rebbetzin because she is
unaware that her husband has passed away." The family kept
the secret until she herself passed away and rejoined her
husband in Gan Eden.
A mother once received a frightful piece of news. Another
woman called and told her that her daughter had been injured
and was on a respirator. She was told that her daughter was
in Tel Aviv's Ichilov Hospital. The mother had already called
a cab when . . . in walked her daughter, alive and well. The
mother deliberated over whether or not to complain to the
police so that they could investigate the caller's identity.
If the woman were to be found, she would be given a lengthy
jail sentence.
My response to the mother was that the caller was like a
person who shocks someone else [causing him harm]. She also
has the status of a rodef who is in pursuit of others
with the intention of harming them. It is thus imperative to
find her. Her aim had apparently been theft, once the mother
left the house. It is a mitzvah to protect the public by
placing such a person behind bars.
A patient's heart muscle had become very weak and the only
hope for prolonging her life was by performing a heart
transplant. Seven months passed before a suitable donor was
found. In the meantime the patient's condition improved
considerably with balanced treatment. The question is, may
she place her trust in Hashem and say, "If Hakodosh Boruch
Hu wants, He can heal me my own heart?"
"Am I allowed to learn," she wanted to know, "from the story
that I heard about HaRav Isser Zalman Meltzer zt'l?
During Reb Isser Zalman's engagement, symptoms of
tuberculosis were discovered. His fiancee consulted the
Chofetz Chaim ztvk'l, and he gave her his blessing,
saying, `If Hakodosh Boruch Hu wants He can give him a
long life!' Reb Isser Zalman indeed lived to a ripe old age.
That is how I feel today."
This is a difficult question and I put it to my teacher and
father-in-law HaRav Eliashiv. His response was, "The doctors
should be asked to explain the phenomenon. How is it that the
patient now feels well, in light of her serious condition
until now? Why are they saying that she needs a transplant
despite the fact that things have taken a turn for the
better? If they provide a logical explanation that heart
specialists (not surgeons) will also accept [as to why the
patient might be feeling better even though her situation is
very serious], it is a mitzvah for her to agree [to the
transplant]. If however, the doctors are unable to put
forward a good explanation for the situation, the patient may
refuse the transplant."
Our master also said that if the doctors themselves say that
she could live for another year even without the transplant,
she does not have to submit to surgery.
Here is some additional explanation for his ruling. Our sages
(Kereisi Upeleisi, Yore Dei'ah 40) were aware of the
existence of reserve mechanisms that Hashem yisborach
sometimes activates within the bodies of His creations. If
the doctors cannot give a convincing explanation as to why
the patient feels better, she may refuse the transplant
because there may be some reserve within her body helping her
cope with her difficult condition.
Medical specialists have told me that ideas have recently
been given coverage in medical literature concerning patients
who were candidates for transplants who did not receive a
heart due to the scarcity of suitable donors, who lived and
functioned at a reasonable level for a number of years. It is
unclear whether a transplant, with all that it entails, would
have proven more helpful. The patient in our case might also
live for a number of years in reasonably good condition, even
without a transplant.
This is especially so in light of the fact that the soul
influences the body. The wisest of men said, "A man's spirit
sustains [him in] his illness" (Mishlei 18:14).
Therefore, if she refuses the operation, her [determined]
spirit might help her overcome her condition and live with
her weak heart.
The case of an elderly woman with a kidney condition who
refused to undergo dialysis because of the unbearable pain,
recently received publicity. How does the Torah view this
argument? Are we permitted to stop treating her and allow her
to die?
Response: A doctor must sever the limb of a
dangerously ill person even against the patient's wishes,
despite the intense pain and lack of any anesthetic. He must
tie the patient down and cut away the diseased part in order
to save the patient's life.
The rationale behind this halochoh is that a person does not
own his body. Besides, "We force people to fulfill mitzvos"
(Kesuvos 86) [even with regard to their own
possessions]. Protecting one's life and health is a mitzvah
that we force a patient to keep.
Nonetheless, HaRav Moshe Feinstein zt'l (Igros
Moshe Choshen Mishpot II, siman 74) and the Steipler
zt'l (Karaina De'Igarta, letter 190) both state
that if a patient is undergoing intense suffering which he
has no means of alleviating, it is probable that there is no
duty to extend his life if he doesn't wish it. The reason
behind this is that there is a limit to the suffering a
person has to undergo in order to fulfill a mitzvah. Intense,
harsh suffering amounts to more than the fifth of one's means
that one is obliged to give up in order to fulfill a
mitzvah.
With this in mind let's consider the above situation. The
posuk in Mishlei states, "A man's spirit
sustains [him in] his illness." The opposite is also true.
When a person loses his willpower his illness becomes
stronger and he submits to it. There are cases where a
patient is aware of the value of life and of its sanctity but
though he desires to continue living, he senses that his
medical caregivers and family are finding it a burden to look
after him. This breaks his heart and he gives in to the
illness. In such a case, his mind may become unbalanced. Or
he may become embittered and just wait to die. Sometimes a
patient sees that his heirs are eagerly waiting to inherit
from him; this can make his suffering unbearable.
The woman's family are therefore obligated to encourage her
and lift her spirits, continuing dialysis and trying to
alleviate her pain with pain-killers. It is forbidden to
cooperate in any way in attempting to shorten her life.
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