The Gemoro does not deal directly with this question. The source for the Shulchan Aruch’s ruling is the Toras Ho’odom of the Ramban. The Ramban was troubled by an apparent contradiction between the Gemoro that grants doctors the right to practice and the Tosefto that states that a doctor who accidentally kills is subject to exile. The basis for the contradiction is the fact that one is sent into exile only if the death is accidental. (Accidents are not pre-meditated but are not totally blameless either.) If the doctor’s actions are perfectly permissible, as it would seem from the Gemoro, the doctor should not be punished with exile.
The Ramban answers that one can resolve this contradiction by considering another halocho. The Torah allows and in fact commands qualified people to judge monetary disputes. Nevertheless, in case the judge errs in his judgment he is sometimes liable in the heavenly court. Similarly, answers the Ramban, while the Torah commands doctors to tend to the sick, it holds doctors responsible in the heavenly court for their errors in judgment. Therefore, if a doctor is aware that he damaged, he is liable for this actions in the heavenly court. Similarly, if he killed he is subject to exile, since exile is basically a reflection of one’s judgment in the heavenly court.
The Ohr Someach’s Analysis of the Ramban
The Ohr Someach questions the ruling of the Ramban and further elucidates the Tosefto’s ruling.
The basis for his critique is a Mishno that records a dispute between Abbo Shaul and the Chachomim concerning when a person is subject to exile. Abbo Shaul derives from the Chumash that one is liable to exile only if his actions were not part of a mitzvo activity. However, a father who disciplines his son or a rebbe who disciplines his students or a court agent who accidentally kills is not subject to exile for his accidental killing. The Rambam rules that Abbo Shaul’s opinion is authoritative. The Tosefto obviously follows the opinion of Abbo Shaul’s opponents and is consequentially non-authoritative. Therefore, how can the Ramban and subsequently the Shulchan Aruch base their ruling on a non-authoritative Tosefto?
The Acharonim’s Solution
Other Acharonim raise the same question as the Ohr Someach and offer solutions that have bearing on the halacho. R. Yecheskail Abramsky and the Yad Avroham explain that a doctor is not equivalent to a father, rebbe or agent of bais din. The latter killed in the course of actual fulfillment of the Torah’s command since they actually disciplined etc. The doctor, however, only attempted to but did not fulfill a mitzvo at the time when he killed since the mitzvo is to heal and he did not heal. Therefore, a doctor who kills is subject to exile even according to Abba Shaul.
The Birkay Yosef of the Chida offers a different solution. He explains that Abbo Shaul absolved a father etc, from exile because the father’s actions were perfectly normal. The cause of the son’s death is that the son was unusual and died from a blow that is generally non-fatal. The doctor, however, killed because he erred and did not follow standard procedure.
It should be noted that the Birkay Yosef’s approach restricts the Tosefto’s ruling to the situation where the doctor erred and did not follow standard procedure. The other commentaries do not agree. They understand that the Tosefto rules that a doctor is exiled even if he did follow standard procedure. In fact, we will see later that many Acharonim rule that the Tosefto is only discussing a doctor, whose patient suffered damage or death in spite of the fact that the doctor followed proper procedure.
The Tosefto’s Approach
The Ohr Someach proceeds to analyze the two sections of the Tosefto that are mentioned by the Ramban. He notices that there are two salient differences between the two sections and from these differences he derives halochos that are basic to our discussion.
The Tosefto in Chapter 9 of Bovo Kamo enumerates, a father who hits his son, a rebbe who strikes his student, the agent of bais din who smites with the authorization of bais din and a qualified doctor who practices with the approval of bais din. The Tosefto rules that in all these instances, one who acts properly is exonerated and one who acts improperly is required to pay for the damages. By contrast, the Tosefto in Chapter 6 lists only the doctor and the agent of bais din. Furthermore, the ruling is not that the perpetrator is exonerated but that he is free from punishment in bais din, but is liable in the judgment of the heavenly tribunal.
The Ohr Someach resolves these differences by recalling that one who damages is normally liable for five aspects of the damage (damage, pain, medical expenses, unemployment and embarrassment). There is one important difference between the aspect known as nezek-damages and the other four aspects. The difference is that one is liable for damages even if his actions were inadvertent, whereas, one is liable for the other four aspects only if his actions are premeditated.
The Ohr Someach claims that Chapter 9 discusses the four aspects of damages. Since in all the examples listed, the damage was inadvertent, the perpetrator is totally absolved. The Tosefto in Chapter 6, however, deals exclusively with liability for the damages i.e. nezek. It would seem that all those who are listed in Chapter 9 of the Tosefto should be liable for this aspect. The Tosefto rules that in fact two of those listed, the doctor and the agent of bais din are nevertheless, not liable in court. The reason they are absolved is a takono of the Chazal in order to encourage people to serve in these capacities.
It is quite probable that the Ramban agrees with the laws that result from the Ohr Someach’s analysis. Therefore, a doctor who inadvertently damages is totally absolved by bais din from paying for damages. In the heavenly court he is liable exclusively for damages. Since the Shulchan Aruch follows the opinion of the Ramban, this is his ruling as well.
It is very important to note that the Ramban predicates his ruling on the condition that the doctor took every precaution. If, however, the doctor was careless, he is as liable as any other Jew who damages.
The Ran’s Approach
The Ran disagrees with the Ramban to a certain extent. The Ran bases his approach on the statement of the Gemoro that the Torah grant doctors the right to attempt to heal. (Recall that the Ramban based his ruling on this statement as well.) Since the doctors actions are totally sanctioned by Hashem, if damages occur they are considered to be beyond the doctor’s control. This is different from the Ramban’s view that damages are inadvertent. (The Ramban classifies it as a shogaig, whereas the Ran states that it is an oness.)
One practical difference between the Ramban and the Ran is whether a doctor who accidentally killed his patient is subject to exile. As we saw earlier, the Ramban rules that he must go into exile. According to the Ran, however, he is not subject to exile since one is not punished with exile for actions, which are beyond his control.
Recall that the Ramban’s ruling that a doctor is subject to exile is based on a Tosefto. It is therefore, necessary to explain the Tosefto according to the Ran. The Ran understands that this Tosefto is discussing a non-expert doctor who received bais din’s approval to practice medicine. Therefore, the Tosefto would agree that a sufficiently expert doctor who received bais din’s approval to practice medicine is not subject to exile.
A very important issue is whether a doctor must pay for accidental damages. Recall that the Ramban ruled that because of a takono, bais din does not require doctors to pay for their damages. However, the doctor is liable in the heavenly court. Therefore, a doctor may very well wish to pay in order to be cleared in the heavenly court.
The question, therefore, is whether the Ran maintains that doctors are liable in the heavenly court. The reason to believe that doctors are not liable is because the Ran views the doctor’s damages as resulting from circumstances that are beyond his control. On the other hand, it is possible that the Ran agrees with the Ramban on this point since normally one is liable for damages even if they result from circumstances that are beyond a person’s control.
We should note that while we have not found any clear proof from the Ran’s words, many Acharonim understand that according to the Ran, the doctor would not be liable even in the heavenly court. This approach is followed by the Yosef Da’as, the Tsaido Lederech and the Mateh Moshe.
We should note that this leniency is applicable exclusively to an expert doctor who has the approval of bais din (in the sense that will be clarified in the next section) and damaged his patient in spite of the fact that he followed proper procedure.
The Approach of the Tashbatz
The Tashbatz follows a slightly different approach. His general approach coincides with the Ramban. This means that even an expert doctor who damages is liable in the heavenly court. The Tashbatz, however, places a limiting clause on the doctor’s liability. He differentiates between a doctor who heals by use of his hands and one who heals with herbs and medicines. He claims that the latter type of doctor is not liable even in the heavenly court.
The difficulty with this approach is that the Tashbatz offers no clue for the difference in halocho. In fact, the Bikay Yosefand the Tzitz Eliezer fail to understand the difference.
The Minchas Yitzchok explains that the doctor who prescribes medicines does not serve the medicine to his patients. He merely prescribes and advises. Therefore, he does not directly damage his patients and is not liable even in the heavenly court. The doctor who performs operations, physiotherapy, etc by contrast, performs an action on his patients. Therefore, if he damages he is liable in the heavenly court even according to the Tashbatz.
We should note that when the Tashbatz exonerates a doctor who damages with his prescriptions he states the condition that the doctor had every intention to heal and not damage. The reason this condition is so critical is because one is liable for giving bad advice. The only time one is not liable is if he is an expert who intended no harm and works for free.
The ruling of the Tashbatz is understandable according to the Ketsos who exonerates an expert dayan who works for free from paying for damages that result from an incorrect ruling. It is unclear how the Nesivos would explain the Tashbatz’s ruling since he claims that one who performs a mitzvo e.g. a dayan or a doctor, is treated like one who is paid for his actions since he receives reward for his mitzvos. One who is rewarded for his advice is liable even if he is an expert and even if he intended to help. It would seem that the Nesivos should maintain that a doctor should be equally liable for mistaken advice and for mistaken actions. Therefore, it would seem that even a doctor who writes a prescription should be liable for his mistakes.
We should conclude by noting that even though the Ramban does not mention the dichotomy of the Tashbatz, it is possible that he would agree. He merely discussed just one case.
Section 2-Approval of Bais Din
At the outset, we quoted the ruling of the Shulchan Aruch that a doctor is free of liability only in case he received bais din’s approval to practice. In order to apply this to practical cases, it is necessary to understand what is required in order to obtain bais din’s approval. We will examine several interpretations of the Acharonim.
The Bais Hillel’s Interpretation
The Bais Hillel explains these words as meaning that the public makes frequent use of the doctor. The Shulchan Aruch is ruling that in order for a doctor to be free of liability a degree from medical school does not suffice. It is the public’s approval, which frees the doctor of liability. The barometer of the public’s approval is utilization. If the public uses the doctor on a regular basis that indicates that he has gained acceptance in the field.
We noted earlier before the analogy the Rishonim have created between a doctor and a dayan. This is true according to this interpretation since a dayan also is free of liability only if the public turns to him for decisions on monetary issues. Thus, in both cases public approval is the critical factor.
The Interpretation of the Yosef Da’as
The Yosef Da’as differs with the Bais Hillel. According to the Yosef Da’as, bais din actually passes judgment on whether a doctor is fit to practice. He draws proof for his interpretation from the Rambam’s ruling that the members of the Sanhedrin must be acquainted with medicine. The Ramach questions why it was necessary for the Sanhedrin to possess medical knowledge. The Yosef Da’as answers that the purpose is to enable bais din to decide whether a doctor is qualified.
It seems quite clear that the Bais Hillel disagrees with this interpretation since he understands that it is the public and not a bais din that decides whether a doctor qualifies or not.
The Chazon Yechezkail’s Approach
The Chazon Yechezkail offers a third approach. His approach is based on the ruling of the Shulchan Aruch that a doctor should practice medicine only if he is the most qualified individual in his locale.
The Chazon Yechezkail says that one who meets the qualification imposed by the Shulchan Aruch automatically meets the criteria of bais din since bais din follows the rules of the Shulchan Aruch.
Applying the Chazon Yechezkail’s Approach
The Tzitz Eliezer explains that even the Shulchan Aruch would maintain that nowadays, a doctor may practice medicine even if he isn’t the most highly qualified doctor in the locale. He offers a number of arguments in support of his claim.
One argument is that there are too many cases for the biggest expert to handle. If everyone were to use the biggest expert exclusively, the wait would be immense and the expense prohibitive. Secondly, he argues that the government sets standards for certification. Therefore, a doctor who receives governmental certification is qualified even according to the halocho.
Based on the Tosefto that we studied at the outset, the arguments of the Tsitz Eliezer seem quite plausible. We saw in the Tosefto that the reason the Rabbonon absolved doctors from paying is in order to ensure that doctors will not forsake their profession for fear of having to pay damages (as happens often nowadays due to malpractice suits in places like the U.S.). It would seem that if this is the reason for absolving doctors of monetary liability, any doctor whose service serves the public interest should be included.
The Acharonim have thus given us three interpretations for understanding the Shulchan Aruch’s criteria for absolving doctors from monetary liability. In practice, the approach of the Yosef Da’as is not applicable since no bais din certifies doctors today. The first and third approaches are certainly germane and often overlap. In the particular case we are discussing, the doctor met the requirements of the first and third approaches.
Section 3-Circumstances Where a Doctor is Liable
In section one studied three opinions among the Rishonim why and to what extent doctors are not liable for damages. In section two, we studied the guidelines for determining which doctors are subject to the no liability clause. In this section we will focus on circumstances where doctors are liable for their damages.
The Tsitz Eliezer says that there is a limit to doctor’s freedom from liability. He maintains that it is confined to cases where the patient was harmed in spite of the doctor’s best efforts. An example where the doctor is not liable would be where a medicine had an adverse effect on a particular patient. The doctor followed accepted procedure and prescribed the standard medicine and yet the patient suffered adverse consequences. Similarly, a doctor may conduct an operation and in spite of his best efforts the patient was harmed. In all these cases, one cannot say that the doctor erred. It is true that his actions had harmful consequences, but one cannot argue that he erred according to the best of his ability.
By contrast, in case the doctor erred he is liable. The Tsitz Eliezer cites the Chida as ruling that even if the reason the doctor erred is because he did not devote sufficient amount of time in order to properly diagnose the patient’s illness, the doctor is liable.
Support for this ruling can be drawn from the Tashbatz who hands down a specific guideline. He writes, “Any doctor, even if he has been licensed by bais din, is liable if his error is discernable by expert doctors.”
This ruling is logical as well since the Tosefto that freed the doctor from liability compared a doctor to a dayan who erred due to faulty judgment. In the case of a dayan the halocho is that he is free of liability only if he studied sufficiently and erred merely because he followed the minority opinion. However, if he did not research an issue properly, etc. he is liable.
The ruling of the Tsitz Eliezer was corroborated by the Minchas Yitzchak. He was asked to rule in the case of a doctor who gave the wrong injection to a patient. Instead of injecting fluid into the patient he injected a lethal compound. The Minchas Yitzchok cites the Tsitz Eliezer and rules that the doctor is a murderer.
R. Mendel Shaffrin of B’nai Berak maintains that in modern society there is an additional reason to hold doctors liable for damage.
R. Shaffrin’s argument is based on common practice. The Mishna rules that an employer must provide meals for his employees in case that is the common practice even though this was not mentioned in the employment contract. The reason is because every agreement is bound by common practice unless stipulated otherwise.
R. Shaffrin argues that one who is admitted to a hospital or is treated by a doctor is entering into an agreement. The agreement is that the patient or his insurance will pay for the treatment etc. and the doctor etc. has to abide by common practice. Since common practice is that the doctor pays for malpractice, the doctor must pay even if no mention of malpractice was made when the patient entered the hospital. It is important to note that according to this argument a doctor is liable for any damages that are normally classified as malpractice.
R. Shaffrin advances a second reason to render a doctor liable for malpractice. He claims that if doctors we are only liable in case they treated gentiles or Jews who didn’t follow the Torah, because they are only bound by secular law, and Jews who follow the Torah could not avail themselves of these advantages, doctors would be careless when treating Torah-observant Jews.
Therefore, it is necessary to make a doctor equally liable under Torah Laws in order to preserve the health of Torah-observant Jews. This is a takono due to prevailing circumstances.
It is important to note that this ruling has implications even in case the doctor was negligent. We showed earlier that even Torah law rules that a doctor is liable in cases of negligence. However, bais din in modern times is not empowered to force a damager to pay damages, pain, and embarrassment and according to the Ramo even doctor bills and unemployment. Bais din can only order the damager ostracized until he makes amends for his deeds. According to R. Shaffrin, bais din can force the damager to pay everything that the law commonly forces doctors to pay. This may even include causative damages that are not punishable at all under Torah law.
We should note that R. Shaffrin’s ideas are quite innovative and not accepted by all authorities.
A Doctor Who Charges Excessive Amounts
There is a third factor to consider before deciding whether a doctor is liable. This factor would serve to render doctors liable even in case the doctor was not negligent and even without resorting to R. Shaffrin’s aurgument based on common practice.
Under Torah law, a doctor or a dayan may only charge what is known as sechar betailo. Since he is performing a mitzvo, he may not charge any more. One computes a professional’s sechar betailo by determining the amount that the professional could have earned in a capacity for which the professional may charge. For example, a dayan who does tailoring work as well, may charge for serving as a dayan, the amount he could have actually earned as a tailor during the time he spent judging cases.
It would seem that for the following three reasons a doctor who charges should be liable even in cases of non-negligence. The first two reasons apply only in cases where a doctor overcharged i.e. charged more than sechar betailo and the third applies even in case a doctor only charged sechar betailo.
1) A doctor is absolved of liability only in case he acts with bais din’s approval (as we discussed earlier). In case one charges more than the amount approved by the Shulchan Aruch, he certainly will not enjoy bais din’s permission. (This is quite similar to the approach of the Chazon Yechezkail mentioned earlier. It would seem obvious that the other approaches would not disagree in this issue.)
2) We saw at the outset that the Tosefto states that Chazal freed a doctor from paying because of tikun ho’olom i.e. in order that society should function in a proper manner. The proper manner for society to function is by adhering to the laws of the Shulchan Aruch.
Secondly, the reason there is a tikun ho’olom in case doctors are liable, is that doctors would desert the profession if they were held liable for damages. However, in case doctors charge whatever they can earn they would not desert the profession because of liability for damages. Evidence can be brought from the present state of affairs where doctors remain in their profession in spite of the fact that the courts hold them liable in many damages suits.
3) The Ramban bases his ruling that a doctor who erred in not liable in bais din on the rule that a dayan who erred in his judgment is not obligated to pay. As far as the latter is concerned, the Ketsos Hachoshen rules that according to the authoritative opinion of the Ba’al Hamo’or a dayan is liable for damages even if he only received sechar betailo. Therefore it would follow that a doctor who is paid sechar betailo too would be liable even for accidental damages.
We showed that the latter reason applies even in the situation where the doctor charged sechar betailo only. This contrasts with the first two reasons, which apply exclusively to a doctor who charged more than the halocho permits.
It is important to know exactly what amount a doctor may charge as sechar betailo. One would have thought that he can only charge the amount he could earn from a different profession that he had besides his medical practice. One would have derived this from the Shulchan Aruch’s similar ruling in the case of a dayan. However, R. Shlomo Zalman Auerbach rules that a doctor may charge Jews the amount he would have earned from healing gentiles.
R. Moshe Feinstein likewise rules that doctors may charge fully for their services for two other reasons. One reason is because it is in the patients’ interest that doctors be paid a good salary in order to encourage them to be devoted to their patients. The second reason of Reb Moshe is that we only limit people to sechar betailo in case they actually engage in another profession for remuneration. Doctors, however, generally do not engage in another profession and in fact, it is in the public interest that doctors should devote themselves totally towards their medical practice.
According to these opinions, the first two reasons we mentioned would not serve to create liability in today’s doctors. However, the third reason would still apply.
Summary of Sections 1-3
1) There are three opinions concerning a doctor’s liability:
A) The Ramban maintains that an expert doctor who is certified is liable only in the heavenly court (According to the Ohr Someach even this holds true only for damages.) and not in bais din.
B) It is not totally clear that the Ran would disagree with A. However, many Acharonim understand that the Ran maintains that an expert doctor who has been approved by bais din is not even liable in the heavenly court.
C) The Tashbatz agrees with A. However, he confines A to a doctor who harmed his patient by means of a physical action that he performed. However, if the damage resulted from bad advice the doctor is exonerated.
2) There are three opinions how a doctor attains certification by bais din.
A) The Bais Hillel says that a doctor who is accepted by the general community is considered as certified by bais din.
B) The Yosef Da’as says that bais din actually certifies doctors by investigating their credentials.
C) The Chazon Yechezkail maintains that a doctor who is qualified in the sense that is defined in the Shulchan Aruch is automatically classified as being certified by bais din.
3) Three situations where a doctor is liable:
A) The Tsitz Eliezer and Minchas Yitzchok require a doctor to pay if he actually makes a mistake.
B) R. Mendel Shaffrin requires a doctor to pay in places where that is the accepted practice.
C) A doctor who charges more than the amount that the Torah allows. Perhaps even if he charges anything is liable.
In the case at hand, the doctor would be liable if the parents’ claim is true. This is based on 3A, and 3B and perhaps 3C.
Section 4-Must the Doctor and His Friend Testify?
In the case under discussion, the parents sued the British National Health Service. In order to prove negligence, it was necessary to hear testimony from the doctor and/or his friend. These two individuals refused to testify. The question that was posed is whether Torah law requires the doctor and his friend to testify. We will treat both the case where the doctor is liable and where he is not liable.
In Case the Doctor is Liable under Torah Law
In this case, the doctor must decide for himself, which is the lesser of two evils; paying or testifying and having the government pay. The reason is that if the parents receive payment from the government, the doctor will be freed from his obligation.
This issue has been discussed by many Acharonim in the case where a damage victim has insurance, which covers the damage. The consensus of the Acharonim is that the one who damaged does not need to pay if the injured will receive payment from an insurance company. Therefore, if the parents will succeed in their suit against the government the doctor will be freed from his obligation to pay under Torah law. As a result, it is the doctor’s choice whether he wishes to pay, as Torah law requires him, or have the government pay and be freed from his obligation.
In Case the Doctor Is Not Liable Under Torah Law
The case that requires careful consideration is where the doctor is not required to pay by Torah law, but, nevertheless, the parents are entitled to payment by an insurance company or in this case, the government. We must determine whether the doctor is required to testify under these circumstances.
Before considering this question it is necessary to examine the source for the general requirement for a Jew to testify.
There are three sources in Torah law for requiring a Jew to testify in bais din.
There is a posuk that specifically teaches us that a witness is required to testify. This posuk states, “One who refrains from testifying is committing a sin.” The Gemoro understands that even a single witness is required to testify whenever his testimony is significant. (There is a controversy whether the obligation on a single witness is Biblical or Rabbinic. The Nesivos, among others, claims that it is Rabbinic.)
In addition, there are two other more general commandments that may include the requirement to testify as a particular case. The Acharonim already discuss whether the requirement to testify is included or not. Let us assume for the discussion that indeed these commandments include the requirement to testify since that is the opinion of many Rishonim and Acharonim.
One other source for the requirement to testify is the injunction not to, “Stand idly by while your fellow Jew’s blood is being spilled.” The Sifrey understands that this is a broad injunction, which includes the requirement to testify as a particular case. Thus, the Sifrey writes, “The source that one may not refrain from testifying is the verse, ‘You shall not stand by while your fellow Jew’s blood is being spilled.’ “
The third source to require a witness to testify is the injunction to return lost objects. The Ketsos and Nesivos both claim that this posuk even requires a non-qualified witness to testify in case the parties involved agree to allow his testimony. Therefore, certainly qualified witnesses are included in this injunction.
Let us now determine whether any of the above sources would require the doctor and his friend to testify in our case.
Is One Required to Testify In Secular Court?
One reason our case requires special consideration is that the Torah’s requirement to testify is in bais din, whereas in our case judgment will take place in the secular court. Therefore, we must determine whether these injunctions require a Jew to testify in secular court.
In general, a Jew may not take his fellow Jew to secular court. In that case, of course, a witness is not allowed to testify in order to assist a Jew who violated the Torah’s injunction not to take his fellow Jew to secular court. In our case, however, it is perfectly satisfactory to take the case to secular court since the defendant is the non-Jewish government of the U.K.
The Opinion of Tosephos
The basis for our investigation into this question is a comment of Tosephos. Tosephos is discussing the ruling of the Gemoro that one who refuses to testify in bais din violates the injunction not to refrain from testifying. Tosephos states that this prohibition is limited to testimony in bais din where one who refuses to testify may not later change his mind and decide to testify. However, outside the confines of bais din, where one may testify in spite of having once refused to testify, the prohibition does not apply.
The Maharshal’s Explanation of Tosephos
The commentaries differ on how to understand the Tosephos. The Maharshalunderstands that the crucial issue is generally (We will discuss an exception later.) is where the witness is situated at the time when he declined to testify. If he is situated in bais din where his refusal is irrevocable, he violates the prohibition since his decision is final and the one who asked him to testify will lose as a result. However, if he is not situated in bais din at the time of his refusal he can still change his decision. Therefore, no permanent damage will necessarily result from his refusal. As a result he does not violate this prohibition by declining to testify.
The Divrai Mishpot Explains the Maharshal
The Divrai Mishpot states that actually according to the Maharshal, the issue of irrevocable loss is critical and not position at the time of the witness’ refusal as would seem from Tosephos. According to this explanation, the only reason Tosephos differentiated based on the position of the witness is that normally this is the critical factor in determining if an irrevocable loss will result. However, in a case where a loss will incur as a result of refusal to testify even when the witness is outside bais din, the witness will also violate the prohibition.
An example where refusal to testify outside of bais din results is an irrevocable loss, and, therefore, the witnesses violates the prohibition in spite of the fact that they were located outside of bais din is the following. Suppose one brings two witnesses in support of his claim that someone owes him money. The defendant has two witnesses who can support his counterclaim that he owes nothing. If the defendant’s witnesses testify on his behalf, he will successfully prevent the claimant from obtaining his money. The reason is that we do not order a transferal of money when two witnesses refute two opposing witnesses. However, if the defendant’s witnesses initially refuse to testify and the claimant’s claim is successful their refusal to testify will result in an irrevocable loss. The reason is because bais din does not order the transfer of money in case there are two versus two. Thus, if they testify initially, they can prevent the transfer of money. However, if they refuse to testify initially and the money changes hands, bais din will not order the return of the money even if they decide later to testify. Therefore, their refusal to testify is final not because they cannot halachically reverse their position, but because the reversal will be ineffective.
The Imrai Binah Disagrees With the Maharshal
The Imrai Binah disagrees with the Maharshal’s approach. He understands that Tosephos differentiates not based on the location of the witnesses but on where they are asked to testify. If they are asked to testify in bais din, they violate an issur if they refuse to testify. However, if they are asked to testify outside of bais din they do not violate this prohibition. The Imrai Binah supports his position with the claim that the Kesef Mishne agrees that this is the proper explanation of Tosephos. The Kesef Mishne suggests that this is the Rambam’s and consequentially, the Shulchan Aruch’s ruling as well.
Testimony in Court
Let us now apply the previous discussion to our situation. According to the Imrai Bina’s explanation of Tosephos and according to the Kesef Mishne’s explanation of the Rambam, the doctor and his friend would not violate the specific injunction to testify, since they are being asked to testify in court and not in bais din.
It is possible, however, that according to the Maharshal’s explanation of Tosephos, they would violate the prohibition since their refusal to testify will result in an irreversible loss for the parents.
The entire discussion thus far has concerned the specific injunction against refusing to testify. However, the two other injunctions, which include the requirement to testify as a specific instance, namely the prohibition against standing idly by while a fellow Jew suffers a loss and the commandment to return lost objects apply even outside bais din. Therefore, they would normally serve to require a Jew to testify even in secular court.
In our specific case we must consider one more element before requiring an individual to testify based on these two commandments. The reason these individuals refused to testify is that their testimony could harm the doctor. The issue to consider, therefore, is whether one must testify to help someone else if he himself will suffer a loss.
It is obvious that the doctor is not required to testify based on the requirement to return lost objects. This is based on the law that one is not required to return someone else’s lost object if he himself will suffer a loss. The Gemoro derives this rule from the posuk, “Only if you will not be poor.” Thus, if testifying is a particular case of the requirement to return lost objects one need not testify if he will suffer a resultant loss.
The argument that one need not suffer a loss applies to the specific injunction not to stand idly by while a fellow Jew suffers a loss and the specific injunction to testify as well. The reason is that the verse we quoted above applies to these injunctions as well.
Support for this claim can be drawn from the Rambam in his commentary on the Mishne. The Rambam writes, “This verse teaches us that one is not required to prevent harm from his fellow Jew if he will suffer similar harm.” This applies in this instance since the parents are asking the doctor to suffer a monetary loss in order to prevent themselves from suffering a monetary loss.
Similarly, we find a ruling that a dayan need not suffer a loss of income in order to judge. The Sema comments that this is derived from the posuk we quoted earlier.
Our argument is especially true in light of the fact that the very requirement to testify falls into the category of gemilus chassodim, and the above verse is specifically written as a limiting factor on the requirement to perform acts of gemilus chassodim.
The Loss Is Not Certain
Our ruling is true even if it is only likely but not certain that the doctor will suffer a loss. This is stated in the context of the requirement to return lost objects but applies equally well to the other commandments we have been discussing. In fact, the issue is discussed specifically in the context of the prohibition against standing idly by while a fellow Jew suffers a loss. In this context, the Sema cites a Yerushalmi that one is required to risk his own life in order to save a fellow Jew’s life. The Sema, however, continues that the authoritative Rishonim do not record this Yerushalmi. The Pischai Teshuvo comments that this indicates that the Rishonim rule against the Yerushalmi and one need not risk his own life in order to save another Jew’s life. Since the requirement to save another Jew’s property is derived from the posuk that requires a Jew to save another Jew’s life, it follows that one is not required to risk monetary loss in order to prevent another Jew’s monetary loss. We should note that the Shulchan Aruch rules that one should not be liberal in using this ruling and only apply it to situations where there is significant risk of loss.
The result of our discussion is that if the doctor is liable as per the earlier sections, then he must decide himself whether it is best to pay himself or admit his guilt in court and have the government foot the bill. However, if he is not liable the deciding factor is whether there is significant chance that the doctor will suffer a monetary loss. If there is, he is not required to testify but if it is not significant he is required to testify.
The Friend’s Testimony
In our case, there was a witness, the doctor’s friend, who heard the doctor admit his guilt on Erev Yom Kippur. We must clarify whether this witness must testify on the parents’ behalf in court.
We should note that the reason we gave earlier why the doctor himself was not required to admit his guilt in court does not apply to the friend. The reason is that the posuk only states that one need not lose his own money in order to save someone else’s money. The friend was not going to suffer any personal loss. Therefore, we cannot apply the reasoning we used earlier.
Relying on the Doctor’s Admission of Guilt
In the case of the friend there is a new problem. The doctor knows whether he was negligent. The friend, however, only knows of the doctor’s guilt by virtue of the doctor’s own admission. We must determine if the friend can rely on the doctor’s admission.
We find in the halocho two alibis that can be claimed in order to invalidate someone’s admission that he owes someone money. One who admitted liability can claim that he was not serious in his admission or that he had an ulterior motive, namely to give the impression that he is not wealthy.
The latter alibi obviously does not apply in our situation. We must, however, consider whether the friend can avoid testifying based on the possibility that the doctor was not serious when he admitted his guilt.
There are three reasons why the friend probably cannot avoid testifying based on this claim. Firstly, the Shulchan Aruch rules that one who voluntarily admits liability cannot claim lack of seriousness. This alone probably would not suffice in order to require the friend to testify since the Shach disagrees with the Shulchan Aruch on this point.
A second factor why one cannot argue that the doctor was not serious about his admission of guilt is the fact that the admission of guilt took place on Erev Yom Kippur. The Gemoro states that we take seriously an admission of guilt that is given on a person’s deathbed because it is a time when people are serious. It is plausible that an admission of guilt accompanying a plea for forgiveness of Erev Yom Kippur evinces seriousness on the part of the doctor.
The third reason the friend cannot utilize this argument is that one must claim lack of seriousness. It is not a claim that bais din makes on behalf of an individual. Therefore, if the doctor did not make this claim his friend cannot make it on his behalf in order to avoid testifying.
We should note that once again we must take into account the doctor’s possible loss. One may not help one Jew at another Jew’s expense. Thus, if the doctor is liable or may harm others the friend is required to testify. However, if the doctor really is not liable but his employer may penalize him, the friend would not be allowed to testify.
In the particular case at hand, where the doctor is liable by his own admission, the friend is required to testify on behalf of the parents.
Response of R. Mendel Schaffrin to the author on 20 Av, 5763:
20 Av, 5763
Dear —, shlita,
I am writing in response to your question about the religious doctor who delivered a child who was brain-damaged as a result of his delivery and asked the parents for forgiveness on Erev Yom Kippur. The parents filed suit against the doctor who has insurance, which covers such claims. The question is whether the witness is permitted to testify on behalf of the parents against the doctor.
The issues that are involved are whether one can sue the doctor and whether the doctor is liable. According to the strict letter of the law, a Jew who damages a fellow Jew is only required to pay for damages, pain, doctor bills, unemployment and embarrassment. Furthermore, in case the damage is accidental, there is no liability for embarrassment and in case the damage is inadvertent the only payment is for damages. Moreover, one evaluates damages by computing the damaged individual’s decline in value if he were to be sold as a slave. This amount is minute in comparison with the amounts that are commonly assessed as damages under secular law. Additionally, bais din is not empowered to force people to pay for damages, pain and embarrassment. It is even a dispute if bais din can force one who damages to cover doctor bills and unemployment. The only authority that is invested in bais din is the authority to ostracize one who does not make those payments that are required under Torah law.
In spite of the above, the situation is different nowadays. Today, a doctor who is licensed accepts responsibility for whatever is considered as negligence from the standpoint of the secular legal system. It is the understanding that a doctor who is hired accepts responsibility and liability for any damages he causes. This is sufficient grounds to render the doctor liable under Torah law.
There is an additional reason to place liability on doctors who damage religious Jews. The reason is that if doctors were not liable under religious law, it would place religious Jews at the mercy of doctors since a doctor could malpractice and even conduct experiments on religious Jews without fear of being prosecuted. Therefore, it is necessary to issue an edict that doctors are as liable for religious Jewish patients as they are for other patients. Perhaps, since the need for such an edict is obvious, it is not necessary to promulgate such an edict since such an edict takes effect automatically. One can offer proof to support this claim.
A result of the above is that the witness may and even fulfills a mitzvo by testifying. This is especially true since the insurer will pay the bill. The parents need not take into account the doctor’s embarrassment and the hike in his premiums.
Menachem Mendel Hacohain Schaffrin
Additional Responsa from Rabbi Schaffrin to the Author
26 Av, 5763
I am writing in response to your additional question whether the doctor himself must testify the truth in court where the claim is against the government who employs the doctor. It seems obvious that the doctor’s hesitancy stems from his fear for his prestige and/or loss of his job.
Whether the doctor must take the initiative and offer to testify or to submit documents depends on circumstances. However, if the doctor is subpoenaed to testify he must state the truth. He certainly may not testify falsely and cause the parents to forfeit the insurance payment.
Menachem Mendel Hacohain Schaffrin
Responsa of Rabbi Zalman Nechemia Goldberg to the Author
Dear Rabbi Fleischman,
I briefly read your article in which you clarified the issue by citing the opinions of the Acharonim as well as your own views. I agree with your conclusions.
I merely want to add the following points.
Firstly, I wish to comment on your citation of R. Mendel Schaffrin’s opinion that doctors are liable based on custom. You compare this to one who hires employees in a place where it is customary for employees to begin work at the crack of dawn. In this case, the halocho is that one must abide by the minhag even if the contract lacks a specific clause requiring the worker to begin work at such as early hour.
I believe that R. Schaffrin’s deduction cannot be derived from the source cited. . When one hires an employee, the employee agrees to conform to custom (minhag). Thus, the employee is entitled to a salary only if he conforms to the custom. If he does not abide by the minhag, the employer may deduct from the employee’s salary. Similarly, if it is customary for employers to provide their employees with snacks, the employer is agreeing to include snacks in his employee’s salary. However, one cannot derive that an employee is liable for damages since we do not find that a minhag can render an employee liable. It is true that the employee would forfeit his salary because he did not carry out his duties properly. However he would not need to pay damages.
A second point concerns your contention that the employee is not responsible to testify if his testimony is self-incriminating. This is true only if the employee is innocent. If he was negligent and deserves to be fired because he caused irreparable damage he cannot use self-incrimination as an excuse to avoid testifying.
I will conclude with the blessing that Hashem will assist you to continue your great work on behalf of Torah with renewed strength and vigor.
Rabbi Zalman Nechemia Goldberg
 Siman 336, Seif 1.
 Page 41 and 42 of the Mosad Harav Kook edition.
 Bovo Kamo 85B.
 Bovo Kamo, Chapter 9, section3.
 Commentary to the Rambam.: Laws of Killing and Safeguarding Lives 5, 6.
 The Tosefto quoted by the Ramban.
 Makos 8A.
 Chazon Yecheskail-Commentary on the Tosefto in Bovo Kamo, chaper 9, section 3.
 Commentary to the Shulchan Aruch, ibid.
 Commentary to Yoreh Deah, chapter 336, note 6.
 We mentioned one earlier and we will record the second immediately.
 Section 5 and 6.
 See Gemoro Bovo Kamo 26.
 Commentary to Sanhedrin 84B.
 Bovo Kamo 26B.
 Commentary to Yoreh Deah, Chapter 336
 The latter two Achoronim are cited by the Tsitz Eliezer in the Ramat Rochel, siman 23, section 3.
 Note 6 in his commentary to Yoreh Deah 336.
 Volume 4, Responsa 13.
 Volume 3, Responsa 104.
 Choshen Mishpot (306, 6).
 Siman 25, Note 6.
 Siman 25, Note 3.
 Choshen Mishpot 306, 6.
 Commentatry to Yoreh Deah, Chapter 336.
 Choshen Mishpot, Chapter 25.
 Hilchos Sanhedrin (2,1).
 He is cited by the Kesef Mishne in his commentary on the Rambam, ibid.
 Yoreh Deah (336, 1).
 The Gro cites the source as the ruling that a Rov should only pasken if there is no more qualified individual available to answer shailos. This rule is written in Choshen Mishpot, Siman 8.
 Siman 22 of the Ramat Rochel.
 Siman 23 of the Ramat Rochel.
 In the sefer Tov Ayin.
 Choshen Mishpot, siman 25.
 Volume 6, Responsa 105, section 7.
 His original letter is printed in the appendix. We had two conversations subsequent to his letter.
 Bovo Metseyo 83A.
 Since the direct chain of semecho from Moshe Rabbainu has been broken.
 Choshen Mishpot 1,2.
 Choshen Mishpot 1,5.
 See the letter of Rabbi Zalman N. Goldberg in the appendix for example.
 Yoreh Deah 336, 2.
 Choshen Mishpot 9, 5.
 Page 41 and 42 of the Torah Ho’odom
 Siman 25, end of note 6.
 The Shach in Siman 25 rules this way.
 Choshen Mishpot 9, 5.
 Shulchan Shlomo-Erkai Refuah, page 90-91.
 Yoreh Deah, volume 4, Responsa 52.
 This reason is difficult since one can compare a doctor to a dayan and the Shulchan Aruch does seem to indicate that these conditions would not be true in the case of a dayan.
 See the Mishpot Ho’avaido in Siman 259, comment 21.
 Vayikro 5.
 Bovo Kamo 56 A.
 Siman 28, note 1.
 See the Introduction of the Mishpot Ho’avido, section 6 for a discussion and further sources on this issue.
 Vayikro 19, 16.
 On the posuk of note 52.
 Many commentaries record this Sifrey e.g. Rambam in Sefer Hamitzvos, mitzvo 297, Sefer Hachinuch, mitzvah 237. Among the commentaries on the Shulchan Aruch who cite this commandment is the Pischai Teshuvo siman 28, note 4.
 Devorim 22,1-3.
 Siman 28, note 3.
 Siman 28, note 1.
 Bovo Kamo 56 B. Tosephos beginning with the words Pesheto.
 Yam Shel Shlomo, Bovo Kamo, Chapter 6.
 Commentary to Choshen Mishpot, Siman 28, note 2.
 Aidus, section 8.
 Commentary to the Rambam; Aidus (1, 1).
 The Shulchan Aruch (28, 1).
 Mishne in Bovo Metsiyo 33 A.
 Devorim 15.
 Mishna at the end of Chapter 2 of Bovo Metsiyo.
 This is stated in Choshen Mishpot, Siman 9. This is the reason a dayan can collect sechar betailo as mentioned earlier.
 Ibid, note 14.
 This is stated by the Nemukai Yosef in his commentary on the Rif at the outset of the sixth chapter of Bovo Kamo.
 See the Mishpot Hoavaido, Simon 264, note 4 of the Moznay Tzedek.
 Siman 426, note 2.
 Siman 426, note 2.
 Siman 264, seif 1 and Sema , note 2.
 Siman 81, Seif 5.
 Ibid, note 12.
 Bovo Basro 174 B-175 A.
 Kesubos 52 B and 86 A.
This essay was written and submitted with permission by The Institute for Dayanim of Yerushalayim. For more articles and response in all areas of Halacha please visit www.dinonline.org
Causing Injury To Protect Your Property
- Twice in a period of six months, burglars have broken into the apartment of someone who lives on the top floor of an apartment building. The person who lives there has figured out that their method of breaking in is by going up to the roof of the building and lowering themselves onto metal poles protruding from his porch (for the purpose of hanging out his laundry – those of you who live in Israel know exactly what we’re talking about!), and from there they would climb onto the porch and into the apartment. He loosened these metal poles, and left them lightly connected. Sure enough, after a month the burglar returned and tried to lower himself onto these poles, only to crash down to the ground and severely injure himself.
Was the occupant of the apartment permitted to do what he did? If not, is he obligated to compensate the burglar for the injuries?
- If a person lives in a private home, and wishes to booby-trap his property by digging large holes and covering them lightly with leaves and branches so that any intruders would fall in and injure themselves, is he permitted to do so?
What is the Halacha?
- In the first question, it was permissible for the occupant to loosen the bars, and he has no liability for the injuries caused to the burglar.
- In the second question, it is prohibited for a person to create a hazard in his property, even if his intention is to protect his possessions from thieves. Therefore, if, for example, you see that people are stealing food from you, it would be forbidden to poison the food to cause suffering to the thief. Instead, the food should be protected properly in a way that the thief would never be able to get to it.
However, if you did booby-trap your property, or poison food that was then stolen, you are not obligated to pay any damages incurred by the thief.
At first glance, it would appear that Halachically it would be entirely permissible to create traps and hazards in your property to protect it and yourself from unwanted intruders, and if injury would be caused by the traps, it would be considered self-inflicted. This is because we don’t find that a property owner is responsible to stop his property from injuring someone or something that has illegally entered his domain. In the words of the Gemara, he has every right to say ” Torchuh B’Reshusi Mai Boei?” (What is your ox doing in my property?) This also seems to be the conclusion of the Gemara in Bava Kamma 33a, that discusses the case of workers that have entered their employers home to demand payment of their wages, only to be bitten by his guard dog. The Gemara says that the employer does not have to pay for the injuries inflicted by his dog because the workers caused this to themselves.
However, the Gemara in Bava Kamma 15b teaches us the following Halacha: Rav Nosson says that a person is not allowed to raise a dangerous dog, or to place a weak ladder in his home, because the Torah says (Devarim 22:8) “V’Lo Sosim Domim B’Vaysechah” (And You Should Not Place Blood [Danger] In Your House). The Maharsha explains that the Torah is teaching us that even though what you are doing may be no threat to your own family since they are known to the dog or aware that the ladder is weak, and even though you are raising this dog only for protection from burglars, it is still forbidden to keep this danger in your home. The Sefer HaChinuch (Mitzvah 547) writes that this prohibition even applies if the danger could only cause harm and not death. (See the Teshuvos Dvar Avraham Vol. 1 Ch. 37:25, and the Chazon Ish in Likutim Ch 18 & 19).
We see from the above, that the Torah does forbid the creation of danger in your home, even for the purpose of catching thieves. However, despite this prohibition, if someone was injured after illegally entering your home, you are not liable for any damages incurred to them. The reasoning behind this is, since the injured party (Nizik) came to the damaging party (Mazik), this case is classified under the category of “Bor” (lit. a pit, see below ), and Bor is only a liability to you if you’ve placed it in a public domain, not in private property. (See Shulchan Oruch Choshen Mishpat 410:6 for an elaboration on this concept).
However, we must ask the following question on the explanation of the Maharsha: In Mesechta Derech Eretz Rabba Ch. 5 we are told a story about Rabbi Yehoshua. He invited a guest home for the night, and gave the guest a room that was located in the attic. Suspecting that the guest may try to leave during the night with some of his household possessions, Rabbi Yehoshua removed the ladder to the attic, without his guest’s knowledge. During the night, the guest did try to “escape with the loot” and, assuming that the ladder was still there, fell to the floor and severely injured himself. The Gemara there tells us that Rabbi Yehoshua publicly proclaimed that what he had done was permitted according to Halacha. This seems to contradict the statement of the Maharsha, that it is forbidden to create danger in your home, even to trap thieves!
We can answer this question with the following distinction. In the case of Rabbi Yehoshua, the ladder didn’t cause the damage, rather it caused the thief to fall to the floor and be injured by the floor. The floor cannot be classified as a “Bor” as long as it is straight and even. The thief therefore caused his own injuries. He wanted to be aided by the property of Rabbi Yehoshua (the ladder) as a means to steal Rabbi Yehoshua’s possessions without getting injured. Obviously, the Torah doesn’t obligate someone to offer a thief the ability to steal his possessions! (The story of Rabbi Yehoshua is directly comparable to Question A, removing the ladder is similar to loosening the metal bars).
On the other hand, when your property is inflicting the actual damage, for example, your vicious guard dog, your poisoned food, or your weak ladder that has been left in a place where you can expect that it will be used (as opposed to the loosened laundry bars whose normal use is not for climbing on), this is called putting a Takalah (hazard) in your home. Even though, ultimately the damage to the thief may be inflicted by the floor, since the homeowner’s property is directly involved in causing the injury, the Torah forbids having this danger in your home. One possible reason for this is because someone in your home may forget about the danger and inadvertently be injured. Another possible reason is because it is only permitted to injure a thief if you can’t save your money in any other way. This is stated in Sanhedrin 49a, in the case of someone who is being pursued by a person who wants to kill him (Rodef). The Gemara says that if the potential victim could save himself by injuring his attacker, he has no right to kill him, as in the story of Avner and Assael (see Rashi there). This is also stated in the Rosh in Bava Kamma, in Perek HaMeniyach (13), that to protect yourself from an attacker you may only inflict as much injury as is necessary to stop the attack.
Therefore, in any of the above cases, if the potential victim would directly injure the thief or attacker, above and beyond what is necessary to save himself or his property, he would be liable to pay for any additional injuries incurred.
In the case of an attack dog, poisoned food, or a weak ladder, although according to the Maharsha it would be forbidden to use these methods to protect your property, if you were to do so, you would have no financial liability since these would be classified as a “Bor” in a private domain. However, it is necessary to find a more preferable way to protect the property.
Bor – The first Mishna in Bava Kamma tells us that there are four Avos Nezikin, primary categories of damages, for which a person can be held responsible. Each has sub-categories, and different defining concepts They also have differences as to the extent of their liabilities. They are as follows (according to Rav’s explanation of the Mishna):
HaShor – literally “The Ox”. Included in this is any property that you have that needs to be guarded to prevent it from injuring others.
HaBor – literally “The Pit”. If you were to create a hazard in a public domain by digging a ditch, leaving a rock in a place that people may trip over it and injure themselves, etc. The defining principle in this category is that the injured party came to it.
HaMaveh – literally “The Person”. A person is held liable for any damage that is a result of his direct action, unless it was involuntary.
HaHever – literally “The Fire”. If a person were to ignite a fire and it would travel into someone else’s property and cause damage, he is liable. The defining principle in this category is that no damage could have occurred without the involvement of an external force- in this case the wind that caused the fire to spread. Other examples would be if you left something dangerous such as a rock, knife, or hammer on your roof or balcony, and a wind blew it off and it inflicted injury or damage.