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type of situations, one cannot violate these instructions. The physi- 10 It seems to me that the answer to this question is what the Rama
cian must weigh this carefully so he does not do anything unjust. writes (Choshen Mishpat #388:7), in the name of the Mordechai: He
who causes someone else to be imprisoned is considered as having

damaged him directly, and he has to pay for all the damage. The argu-
ment among the poskim about whether one is liable or exempt from
Is it permissible to give a nursing woman a note paying for garmi (not clearly indirect damage) only applies to dam-
that she was sick? aging assets, but not to personally damaging someone. For personal
damage, the Torah obligates the damager to pay for his victim’s inabil-
1 Question ity to work. So too, if a man locks someone in a room, thus preventing
him from working, he is obligated to pay him for his inability to work.
A woman has to appear in court abroad on a certain day and does However if he damages an animal or locks it up, he is exempt from
not feel well. In order to avoid receiving a monetary fine, she has to paying because it is damage by grama (clearly indirect causation). The
bring a note to the court that she was sick and was therefore unable to Shach (ibid., 39) however, disagrees with the Rama, and rules that
come. The physician doesn’t see any sort of illness in her, other than if one causes a seizure in someone, it is viewed as garmi (not clearly
the fact that she is a nursing mother. On this basis, can the physician indirect damage). Nonetheless, both according to the Rama and the
certify that she was sick on that day? Could he do the same if she were Shach he would be obligated to pay. The only practical difference that
pregnant? results from their differing views is in the decree that the victim swears
regarding how much he lost. (According to the Rama, who asserts
1 AnsweR that locking someone up is considered direct damage, the victim can
swear in order to receive compensation. According to the Shach, who
It says in maseches Kesubos (68b): One can assume that a nursing asserts that locking someone up is indirect damage, there is no decree
woman is sick. The Shitah Mekubeitzes (ibid.) writes that although that the victim can swear in order to receive compensation.) There-
she may not appear sick, she is sick. Therefore, in our case, the physi- fore, in our case, one has to measure how much the victim caused
cian can write a note that she was sick, for any nursing woman is sick. the former thief to lose by not being employed, and this amount is
However, the Daas Torah (#550:1) writes: See Rashi (Eruvin 100b, deducted from the thief ’s obligation to repay.
s.v. tzaar ibbur), who writes: Pregnant women are considered sick. We may find reason to exempt the former thief from paying, based
Rashi (Yoma 47a) writes: Ordinary pregnant women are sick. It seems on what it says in the Shulchan Aruch (Choshen Mishpat #420:11): If
to me from this reason that even if it is not difficult for them, they do he forced him into a room and closed the door on him and prevented
not have to fast on Yom Kippur. The Maharsham then concludes that him from working, he pays for his lack of work. But if he was already
with nursing women it is different. Although in Kesubos (65b) it says in the room and the perpetrator merely closed the door, preventing
that ordinary nursing women are also sick, the conclusion is not so. him from exiting, it is considered damage by grama and the perpe-
The Maharsham’s claim is a chiddush because where do we find a topic trator is exempt in a human court. In our case, the thief was already
revisited with a different conclusion? Nonetheless, the first opinion is held by the police, even before his sentence was passed, based on the
probably sufficient in our case. victim’s exaggerated claim. If so, the victim who exaggerated his claim

 is guilty of grama. He merely prevented someone who was already

302 1 Medical-HalacHic Responsa of Rav ZilbeRstein Prolonging hospitalization 2 295