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The Chovos Halevavos (Shaar Habitachon, Ch. 4) says that it is a
mitzvah for the physician to heal. As it is says, “And heal he shall heal.”
According to the Issur Veheter (#60:8), a physician who heals also
fulfills the mitzvah of “And they shall live by them,” which is a mitzvah
to guard one’s health, and one similarly fulfills “You shall watch over
your bodies and souls” (Devarim 4:15), and “Let your brother live with
you” (Vayikra 25:36) and also “And you shall restore it to him [i.e.
his lost health],” just like one must restore a lost object to its rightful
owner (Devarim 22:2).
It seems to me that these mitzvos apply to a physician who heals
and eases pain and suffering. But when a surgeon does plastic surgery
for beautification, or a dentist whitens teeth, he does not fulfill any of
the above mitzvos. He is simply like one who fixes utensils.
Our Sages assert (Bava Kamma 85b) that it is possible that if one
injures another, he is responsible to pay the medical costs of healing
the wound without paying for the damages. For example, if he pro-
vided his friend with potent medication to heal a bruise, and while
healing the bruise, the medication caused a pale tzaraas-like lesion on
the skin, the Torah dictates “Heal he shall heal.” In other words, he is
required to pay him the cost of healing the lesion. From this, we can
conclude that even a cosmetic medication to repair the blemished skin
is considered “healing” by the Torah. However, this would only apply
if the victim is ashamed to be seen with the lesion. Tosfos writes (Shab-
bos 50b, s.v. bishvil): “And if his only suffering is that he is ashamed
to walk among people on the street, it is permitted because there is
no greater suffering that this.” But cosmetic treatment for beautifica-
tion or straightening teeth that were not significantly blemished or
crooked is not considered a mitzvah and thus the Sages’ decree that
a physician is exempt from paying damages does not apply. The law
regarding surgery done to fix an external blemish for the purpose of
shidduchim requires further study.
The Tzitz Eliezer (Vol. 11 #41) cites the words of the Shaarei Tzedek,
who writes: The physician is given Divine license by the Torah to heal
illnesses or to relieve unnatural pain and suffering. If someone wants
to change his natural state, this is not in the province of medicine.
12 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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who cites the Machaneh Efraim, Hilchos Nizkei Mamon #5) writes #
that a person is obligated to pay for any damage he caused, even if
it came about through an ones gamur. Nonetheless, he writes, we ex-
empt the butcher since he was “involved [in the act of slaughtering]
with permission.”
It follows, according to the Ramban, that an expert physician
who healed with the permission of a beis din and erred and caused
damage is exempt from payment because he too “was involved with
permission.” However, since the rule of “involved with permission”
only exempts from payment for damages, but not from exile, if he
inadvertently caused a death, he is still required to go into exile.
According to Tosfos, however, the butcher is exempt from payment
since it was an ones gamur. In this case, we can explain the application
to a physician who erred as follows: If he unintentionally killed, then
the basic halachah would dictate that he be treated like any uninten-
tional killer [as this act cannot be considered an ones gamur, or an
unavoidable murder committed through coercion]. If he uninten- 20818_efi-ab - 20818_efi-ab | 1 - B | 18-08-20 | 13:29:01 | SR:-- | Magenta #20818_efi-ab - 20818_efi-ab | 1 - B | 18-08-20 | 13:29:01 | SR:-- | Yellow 20
tionally caused damage, his exemption from payment is a Rabbinic 20818_efi-ab - 20818_efi-ab | 1 - B | 18-08-20 | 13:29:01 | SR:-- | Cyan
decree for the good of the world (mipnei tikkun olam). If we were to
obligate physicians to pay for all damages caused inadvertently, they
would likely refrain from practicing medicine altogether. Therefore,
Chazal exempted them from payment, even though theoretically they
are obligated to pay, just as if the patient dies they are exiled. As it
says in the Tosefta (Gittin, Ch. 3 #13): An expert physician who healed
with permission from a beis din and caused damage unintentionally,
is exempt… “for the good of the world.” Tashbatz concurs (Part 3 #82).
There is a contradiction here between the Ramban and this Tosefta.
The Ramban rules that if one is involved in an act with the permis-
sion of beis din and caused damage unintentionally, he is exempt from
payment, while the Tosefta says that a physician who damaged is theo-
retically responsible, but exempt only “for the good of the world.” The
Or Same’ach (Ch. 5:6 of Hilchos Rotze’ach) addresses this issue and
concludes with the words “the matter requires further study.”
Rabbi Yisrael of Kotna (Yeshuos Yisrael, Choshen Mishpat #25, Ein
Mishpat 3) can provide us with an answer to this contradiction: Only
Compensation for physicians’ errors 2 9