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because it was not guarded [as it should be]. When the are two men in the same city with the same name (such as Yoseph ben
Torah writes “guard”, then that thing must be guarded [un- Shimon), they cannot collect debts for one another unless they also
der any circumstances]. It does not help to call something write the name of their grandfather or another sign of identification.
a sefeik sefeika, since it [must be guarded in any case and] And, if there are two men with the same name whose wives have the
was not guarded. Likewise the law that a person is forbid- same name, neither one can divorce his wife except in the presence
den to put himself into danger is based on the Torah verse of the other, lest a bill of divorce is written and given to the other’s
(Devarim 4:15): “Guard well your souls,” meaning that wife and she will be divorced [mistakenly] (Even Haezer #120:3). The
a person is obligated to take care to guard himself from Maharshag (Part 4 #53) explains that for this reason, one should not
danger. Since the Torah requires that one “guard” oneself give two brothers the same name so that an error not occur in matters
from danger, the laws of the majority and of sefeik sefeika of modesty if their names are the same.
do not apply, just as the Ramban wrote regarding a sefeik In our case, where the two patients with identical names were ac-
sefeika regarding an item found in the public domain. cepted for surgery, the staff should have made everyone in the depart-
ment very aware of this fact, but they did not do so. The fault lies with
In light of the above, it’s possible that wherever there is a chance of the staff of the hospital, and mostly the director of the department
danger, we do not rule according to the percentages but according of cardiac surgery. Since he was not careful, he sinned and is guilty
to the principle of “Guard well your souls.” This means that in every according to the laws of Heaven.
case of possible danger, one must judge whether one is fulfilling the
Tosfos (Bava Kamma 56a, s.v. kesuyei kesisei) states as follows: Even
injunction to “guard well.” If so, it is permissible; if not, it is pro- if one’s intent was good, so that it not burn rapidly and the owner
hibited. So in the case of the woman who wishes to return to her could be saved during that time, he is nevertheless guilty according to
schizophrenic husband, if it seems like she is making light of her life
instead of watching over it, she is forbidden to go back to him. But the laws of Heaven because he should have been careful not to cause
if her case is more like taking the the risk of sailing on the ocean or a loss.
hunting wild animals to make a living, she is allowed to return to her According to the view of this Tosfos, the physician is considered
husband. guilty in Heaven in spite of his intent to save the patient. How can we
say that the patient owes the physician gratitude for his negligence?
 The Meiri (Bava Kamma, there) disagrees with Tosfos. He writes that
A hospital nurse once made the serious mistake of injecting Ventolin if the rescuer intended to do good, then although he did bad, he is
into the vein of the patient instead of putting it in his inhaler. The exempt in the eyes of Heaven. Nonetheless even this is still a long way
patient lost consciousness. She called the entire staff and told them from saying that the physician deserves an expression of gratitude.
about her error. With Hashem’s help, they were able to revive him We can ask a question based on what the Torah says in parshas
and save his life. The hospital administrator fired her immediately. Beshalach (Shemos 13:18): “And the children of Israel went up armed
He did so quietly, since she had served the department devotedly for from the land of Egypt,” which Rashi explains “they were ready with
many years. She did not try to justify herself, but accepted it with arms.” The Chasam Sofer (in Toras Moshe, Beshalach, p. 22) asks: If
humility and submission. the Jews left Egypt prepared for war (armed), why did they not know
While seeking a position in another hospital, the nurse wanted to how they would be saved from the Egyptians when they stood at the
know whether or not she is obligated to reveal her mistake. Since sea? Why did Hashem not command them to fight a war, and then

112 1 Medical-HalacHic Responsa of Rav ZilbeRstein Left instrument in abdomen 2 101