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“And if a man hits his servant and he dies…in his stead, he shall take
revenge.” (Shemos 21:20): From here we learn that if a physician, an
agent of a beis din or a teacher kill someone in their care in a way that
is considered deliberate, they are all to be dismissed from their posi-
tions and left to find other work. If they repent, they can be restored
to their former positions.
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There is a difference of opinion in the Shulchan Aruch (Choshen
Mishpat, 206:8) as to whether they are dismissed after one incident,
or only after three. While the Shulchan Aruch holds that they are fired
immediately after one error, the Rama disagrees and says only after
three times. In practice, as we have stated elsewhere, if the physician
usually does his work well and devotedly, one cannot fire him for one
error. One cannot even fine him. However, if his work is usually done
carelessly, then it is very probable that one can fire him, and perhaps
also fine him and revoke his medical license at least for a period of
time until he repents.
In our case, the physician did not notice the retinal detachment
of his patient due to his own poor vision or old age, so he certainly
should find another profession. Since our actions will affect his liveli-
hood, no one should not make any decision about this matter on his
own. One must discuss it with people involved in the profession who
understand the matter. (As Rashi writes in maseches Chulin 52a, “He
should be very careful and call in all the ritual slaughterers and those
in the know about the matter…”)
There are several instances that the poskim rule in what situations
one can fire a shochet. The underlying principal of judging favorably
where possible is highlighted by the following considerations:
It says in the Pischei Teshuvah (Yoreh Deah 1:107) that if a shochet
made one mistake, and after looking into the matter, they see that the
mistake was a result of a confused state of mind, he must be dismissed
until he returns to himself. On the other hand, the Darchei Teshuvah
(ibid., 85) describes a shochet who is in great mourning because, for
example, both his parents died at the same time. Due to his sadness,
he is close to losing his mind and he has made several halachic errors.
244 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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and b) “Returning a lost object” where we are obligated to rebuke the
administrator so that he should return the public money he stole.
The Biyur Halachah (#608, s.v. aval) teaches that when the Rama
ruled that one is obligated to rebuke his fellow if he sees him trans-
gressing something clearly defined in the Torah, he meant a case in
which the person sinned once, accidentally. If he is someone who
rejected the yoke of Torah completely (such as one who desecrates
Shabbos openly in public, or eats non-kosher meat ‘to spite’) then he is
no longer considered “your fellow” and one is not obligated to rebuke
him. If he eats non-kosher meat because he likes it, or desecrates
Shabbos but not publicly, one must consider carefully whether to
rebuke him.
Accordingly, if the supervisor is among those who threw off the
yoke of Torah completely, there is no mitzvah to rebuke him.
Moreover, if he is likely to take revenge and cause him harm, he is
also exempt from rebuking him. This is what the Biyur Halachah says
(s.v. chayav): “But if he is a person who will hate the rebuker and take
revenge on him, one should not rebuke him.” The Chazon Ish explains
(Shevi’is 12:9), that the purpose of the rebuke is that the sinner should
repent. If the rebuke causes him to sin with hatred and revenge, then
it only makes things worse. The Rama (Yoreh Deah #334:48) adds
that “Although a person is obligated to protest against sinners, and he
who is able to do so but does not is guilty of that sin, in any event, a
person does not have to spend all his money for this purpose. There-
fore, we act leniently and do not stop sinners if there is concern they
may hurt our lives or assets …”
It also seems to me that he is exempt from the mitzvah of returning
a lost object as well if there is concern that the administrator will take
revenge. It says in maseches Bava Metzia (30a): if his loss would be
greater than that of his fellow, he is not obligated to return the lost
object to him. In Sefer Avkas Rochel (#195) he was asked if a person is
obligated to testify if he knows that the other litigant will take revenge
for his testimony. His answer is “Your life takes precedence.” There-
fore, if the physician is concerned that it may affect his livelihood if
Notifying Authorities about deficiencies 2 225
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