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19 Iyar 5766 - May 17, 2006 | Mordecai Plaut, director Published Weekly








Suffering and the Sanctity of Life — HaRav Yitzchok Silberstein Discusses a Range of Medical Issues

by B. Re'eim

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.

Question: May Hatzoloh Members Return Home After Treating Patients on Shabbos?

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.

How Should a Patient be Informed of His Condition?

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.

Refusing a Transplant Out of Trust in Hashem

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.

Refusing Dialysis because the Pain is Unbearable

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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