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of his fellowman, he violates the mitzvah of returning a lost object,
because this money belongs to someone, and by testifying the witness
could restore it to him. So, too, in our case, a physician who does not
testify on behalf of the claimant nullifies the above mitzvos.
However, the Rama teaches (Choshen Mishpat #17:12): If a litigant
sued someone for a small amount and the judge sees that according
to halachah that person owes him more than he is claiming, the judge
does not have to mention this. Perhaps this applies in our case as well.
Since the affected party asked for compensation for a 35% disability,
the physician would not be obligated to reveal that he is entitled to
much more.
The words of Rama require clarification, however. Why should
the judge not tell the claimant that he is entitled to more? Does not
the mitzvah of returning a lost object require every person to do all
that is required so the money of another not be lost? Several explana-
tions have been offered for this question. We will cite that of Nesivos
Hamishpat (Mishpat Ha’urim, 1) and Aruch Hashulchan (19).
The explanation of Nesivos Hamishpat is based on the Gemara in
Bava Basra (5a), which is the basis for the ruling of the Rama. The
Gemara relates that Runya had a field that was enclosed on all four
sides by the fields of Ravina. After Ravina built a stone wall around
his own fields, he demanded payment from Runya for enclosing his
field as well. Runya refused. Pay me the cost of a cheap fence of cane,
said Ravina. Runya refused. Pay me the cost of a watchman because
I spared you from paying a watchman, said Ravina. Again, Runya
refused.
One day, Ravina discovered that Runya was interested in safe-
guarding his palm-trees, and that he had certainly benefitted from the
fence, so he took Runya to Rava’s beis din to demand payment. Rava
said to Runya: If you do not accept his last offer, I will obligate you to
pay for the stone fence. According to Rav Yossi, if the one surrounded
by the fence expresses his satisfaction with the fence, he has to pay for
it all (i.e. to participate in the expense of fencing all sides of the field).
Interestingly enough, had Runya compromised with Ravina and
participated in the cost of a watchman or a cheap fence made of
306 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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case, because while his money belongs to him, his soul is not #
his. For this reason, it is forbidden for a person to wound his
friend, even if his friend gives him permission to do so, because
a person has no rights over his body at all. The Shulchan Aruch
Harav (Hilchos Nizkei Haguf #4) rules the same.
Regarding both of the above reasons, one has to judge if there is a vi-
olation of the Torah prohibition of wounding in doing the additional
amputation: a) Since he does not cut twice and does not cause the
patient additional pain and suffering, but only adds one centimeter to
the required amount of amputation, perhaps he has not violated the
prohibition of wounding? b) Since the part that is left cannot be used
for anything anyway, perhaps there is no prohibition of wounding
for a useless limb? With this in mind, we would also need to judge
whether a physician who cut more than was neccessary without per-
mission from the patient is obligated to pay compensation.
We can claim that there is no prohibition of wounding for a 20818_efi-ab - 20818_efi-ab | 10 - A | 18-08-20 | 13:29:02 | SR:-- | Magenta #20818_efi-ab - 20818_efi-ab | 10 - A | 18-08-20 | 13:29:02 | SR:-- | Yellow
non-functional limb, based on what is explained in maseches Kiddu-
shin (24b): If a slave’s eye was not fully functional and the master
blinded him, or if his tooth was loose and the master knocked it
out… if he was able to use them, a [gentile] slave goes free, but, if
not, the slave does not go free, meaning if the master blinded an eye
or knocked out a tooth that were not functional, the slave does not
go out free. In maseches Gittin (21b, s.v. lo efshar) Rashi explains that if
one wounds a slave, the slave goes free because the master has violated
the prohibition of wounding. From the fact that the slave does not
go free if the wounded limb was useless, we can learn that cutting off
part of a non-functional limb does not constitute the prohibition of
wounding.
Perhaps one can disount this proof by claiming that a non-func-
tioning eye or a loose tooth are not considered important organs.
Therefore damaging them is halachically considered like causing a
slave a hidden blemish or like cutting off an extra finger, neither of
which would set the slave free. (Since they are not a disgrace to the
slave, the Torah does not fine the master for them.) If so, then if a
Amputating a limb 2 291