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the future. b) the mitzvah of returning a lost object, i.e. preventing the 1 AnsweRs
loss of health of this physcian’s patients.
We have already cited the words of Biyur Halachah (#608, s.v. A hospital has no heiter to perform unnecessary tests or procedures
aval), that one is not obligated to rebuke those who reject the yoke of without the patient’s consent. Even though physicians learn and
Torah. In view of this, if the negligent physician is among those who experiment in order to benefit the public, nevertheless, they have no
have completely rejected the yoke of Torah, there is no mitzvah to permission to do so at the patient’s expense without his permission.
rebuke him in order to stop him from sinning, but there still exists the We find in maseches Niddah (47a) that when Shmuel Harofeh sought
obligation to rebuke him in order to prevent him from harming his to study the physical signs of adulthood in girls, he examined his
patients, for this is considered the mitzvah of returning a lost object gentile maidservant for this purpose. He paid her four zuz for her
(the patient’s lost health). One is exempt from this mitzvah as well, shame, in spite of the fact that she was his maidservant. Thus if a
if it will cause harm to the person rebuking (see above, Chapter 48). doctor wants to experiment, he must obtain the patient’s permission,
Because of this, if the physician feels that he will lose his liveli- which he can get in exchange for payment or some other favor, such
hood if he speaks to his supervisors, then he is exempt from doing so. as medical services. This has already been done successfully in some
However, if his only concern is that it will be uncomfortable or cause hospitals. One can also obtain consent from prisoners in exchange
tension between him and the doctor, and the patients will not suffer for their early release or the like. Without the patient’s permission,
as a result, then he should not refrain from speaking up. however, there is no permission for a doctor to use him for research.
If a negligent physician can easily come to causing the death of Even worse is experimenting on the body of a dying patient. We
patients, then one is obligated to do everything to stop him. A person learn in maseches Shabbos (151b) that he who closes the eyes of a dying
should not hesitate to report the physician’s poor performance to his patient as the soul is departing is guilty of murder. Rashi explains
supervisors, even if that will cause his own dismissal from his job. that this small action shortens the patient’s life. This is analogous to a
He who stays silent violates the precept of “Do not stand idly by the flickering candle: if a man touches it with his finger it is immediately
blood of your fellowman.” Many of our Sages rule that a person has extinguished. One is obligated to protest any form of experimenta-
to spend more than one quarter of his assets in order to save lives. tion on the body of a dying person. Obtaining the patient’s consent
Therefore, if there is no other way to deter the negligent physician, in this case does not help. Even if the person who speaks up will be
except to reveal his incompetence to his supervisors, one should do harmed, he is still obligated to protest and fulfill “Do not stand idly
so and not worry about the harm one may suffer as a result. Hashem by the blood of your fellowman.”
rewards those that revere Him, and will certainly not abandon those The nurse in our case, however, is sure that her words of rebuke
who have faith in Him and fear no man in their fulfillment of the will often go unheeded. Particularly in question two, she makes note
mitzvah “And your brother shall live with you.” of the reasoning guiding the hospital administration in giving prefer-
If there is no danger to the patients’ lives, and rebuking the doctor ence to patients who have a chance of recovery. If this is really so, it
will lead to tension among the staff of physcians, with the patients in depends on her judgment. If she is certain that no one will listen to
the hospital suffering as a result, then one needs to weigh the possible her, and that she is liable to lose her job, she is not obligated to speak
harm to the patients against the benefits of rebuking the doctor. If it up and lose her livelihood. While a person is obligated to speak up
seems probable that the rebuke will do great harm, it is possible that about a wrongdoing he observes, if he knows that his protest will not
one must be silent and refrain from rebuking. As written in Responsa bear fruit, he is not obligated to endanger his livelihood. The Shulchan
Aruch (Yoreh Deah #334:48) rules that a person is obligated to pro-

240 1 Medical-HalacHic Responsa of Rav ZilbeRstein Notifying Authorities about deficiencies 2 229