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sense at the time to do such and such, or to answer such ligated to pay, even if he is an expert, because once he gets paid he is
and such?) Sometimes he is bored and sometimes he lusts
for something beyond his reach, and sometimes he fears
for the future. And most of all, the desire for honor. Some-
times his honor was truly hurt and other times he imag-
ines this is so and he thinks that someone did not speak to
him properly. And he has the anguish of raising children.
And as old age draws near, he feels rejected and insignifi-
cant, slowly pushed into a corner as his eyes witness others
taking over his place. Then he becomes a burden on his
family, and after that, in general, he will be busy with phy-
sicians and medications until his day of death arrives, and
he is frightened and trembling at losing this world, and he
despairs and is nullified like a broken shard.
In light of this, we must ask: Why was man created? If so, it would
seem that every human being can sue his parents for bringing him
into the world.
Not only our Sages concluded that it would have been better for
man not to have been created, but the wise men of the world reached
the same conclusion as well. It is related that prior to his death in a
land far from his mother, Alexander the Great knew that his mother
would be greatly anguished by the news of his death, and he sought
to console her. He wrote her a letter saying that she should imme-
diately make a great feast and announce that no man who had been
aggravated or sad or in mourning from the day of his birth until now
should come to the feast. His mother did as he told her and not a
single person came to the feast! (Cited in Chumash Rav Peninim, topic
of the Ten Commandments, Shemos 20:12.)
Let us broaden the question.
Let us imagine that a couple suffers from a genetically transmitted
disease. It is clear that any children born to them will be blind and
retarded. According to the secular courts, these children can sue their
parents for bringing them into this world. While we can judge the fe-
male geneticist favorably, as we will explain below, these parents who
32 1 Medical-HalacHic Responsa of Rav ZilbeRstein
viewed as a paid watchman.
The author of Imrei Binah (Choshen Mishpat, Dinei Dayanim #30,
s.v. uketzas) points out: We can prove that even if the dayan is paid
for his judgment, he is exempt if he errs… (in contrast to the view
of Ketzos Hachoshen above). Perhaps one can differentiate between a
situation where the judges receive a fixed monthly salary and one in
which they are paid for each case individually. In the latter case, the
judge may be obligated to pay for his error because he should have
studied the case more carefully. It depends on the specific mistake
and the reason why he erred. If he did everything possible according
to his capability and nevertheless erred on a matter where errors are
common, the situation may be considered to be an ones. If, however, it
is clear that the error was due to insufficient study of the case or lack
of care, he would be obligated to pay if he collects a salary for being
a judge.
Based on the words of the Imrei Binah we can infer that if the
doctor was paid for a private visit he is obligated to pay for an error
because of garmi. But if he saw the patient in the hospital where he
receives a monthly salary, he is considered to be like an expert mon-
eychanger who assesses coins for nothing and who is exempt from
payment for an error. If, however, the error was due to his insufficient
attention to the case, he is obligated to pay nonetheless.
The Chadrei Deah (Yoreh Deah #336:1) writes that the words of
the Shulchan Aruch stating that a physician who erred and harmed
is exempt in a human court but guilty in the Heavenly Court ap-
plies to a physician who receives payment. A physician who heals
for nothing is exempt even in the Heavenly Court. He is no different
from a bloodletter or a moneychanger who work for nothing, who are
exempt in a human court if they make a mistake.
Indeed, the Imrei Binah continues:
For over thirty years I have grappled with this difficult
question. Why is a physician who errs obligated to pay in a
Heavenly Court while an expert judge who errs is exempt?
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