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one who started out his task “with permission,” such as an expert 1 the Sages exempt the rescuer from paying for the damages because of # 20818
butcher who started out slaughtering in accordance with halachah, is “the good of the world,” so that he will not have to move cautiously on
exempt from paying for unforeseen damages. the way and thus delay the rescue. According to this, the Gemara is in
Likewise, if a licensed physician began surgery on a patient on synch with the view of Tosfos since it is speaking about an act which is
the basis of a thorough and correct diagnosis, but an error occurred not completely an accident, and therefore the law would require him
midway, he is exempt from paying for the damage. In this case, it is to pay were it not for the Rabbinic decree.
not necessary to exempt him “for the good of the world,” according We can also infer from the Rambam that a physician who is speed-
to the Ramban, since the physician is legally exempt by the Torah. ing to reach the hospital in order to save a dangerously ill patient and
On the other hand, perhaps if the initial decision was made in error, caused damage to something on the way is exempt from payment.
the physician cannot be considered someone practicing “with permis- Although had he tarried a little and watched the road he would not
sion,” and in this case he is only exempt from payment for “the good of have caused damage, he is still exempt because of “the good of the
the world,” although the law would have obligated him to pay. world.” (This is on condition that he drove according to all the traffic
In Sanhedrin 74a it says: If a rescuer is running after someone who laws.)
is being pursued in order to save him, and on the way he breaks some The Rambam also answers the question posed by the Chiddushei
utensils belonging to the pursuer, the pursued, or anybody else, he Anshei Shem (Bava Kamma 44a, from the pages of the Rif 1), on the
is exempt from paying for the utensils. This is not according to the Gemara in Sanhedrin (above). There is a rule that if someone was run-
[Torah] law, but a decree of our Sages so that people will not refrain ning on Erev Shabbos during dusk and caused damage, he is exempt
from saving a fellow Jew from his pursuer. from paying for it since he was running “with permission” to get home
According to Tosfos (above), whose view is that if one causes dam- before Shabbos (Bava Kamma 32a). Likewise we should rule that if
age due to an ones gamur he is exempt, we can question this Gemara. someone causes damage while rescuing a person from a pursuer he
When one runs to rescue another from a pursuer who intends to should also be exempt by law and not only because of the Rabbinic
kill him, in accordance with the mitzvah “Do not stand idly by the decree! According to the Rambam, one can answer that the law would
blood of your fellow man,” can the damage he causes along the way require the rescuer to pay for the damages because he could have been
be anything but the result of an ones gamur? The law itself, rather careful not to break any utensils, but was exempted by the Rabbinic
than a decree of the Sages, should indicate that he is exempt! While decree so that he should not delay the rescue. However, on Erev Shab-
this Gemara is in synch with the view of the Ramban, that a person is bos there is clearly no time for cautious movement, and therefore one
held responsible even for an absolute accident, according to Tosfos it is exempt by law.
is difficult to understand. Regarding a physician who was performing plastic surgery on
We can shed light on the above according to the Rambam’s (Hilchos a patient and caused damage, it seems to me that there would be a
Chovel 8:14) commentary on the afore-mentioned Gemara: …This is difference in the ruling according to the difference between the view
not according to the law, but a decree of our Sages so that a person will of the Tosfos and that of the Ramban. According to the Ramban, he
not refrain from saving a friend from his pursuer or move cautiously is exempt because he damaged “with permission.” The view of Tosfos,
and think during the pursuit. In other words, the rescuer could have however is that the doctor is exempt only because of “the good of the
avoided damage to the utensils if he would have delayed a little, in world,” so that physicians will continue to heal the sick. This logic
which case the damage is not considered an ones gamur. Nevertheless, cannot apply to plastic surgery performed for beauty and aesthetics.
10 1 Medical-HalacHic Responsa of Rav ZilbeRstein Compensation for physicians’ errors 2 11
