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something is normal, and on the basis of his words he
declared an animal kosher (for example, if an animal’s lung
became red and a shochet told the rav that if the animal
eats beets, that is normal, but in actuality the animal had
a wound on its side and was tereifah (see in Rama, Yoreh
Deah #38:4), and they salted it together with other kosher
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meat and then learned that the animal was a tereifah… it
would seem that he is obligated to pay… perhaps, in any
event, the damage is not necessarily done immediately,
because it is not clear that they will salt it together with
kosher meat… it seems nonetheless that it is like immedi-
ate damage. The matter needs more study.
From the words of Kesef Hakodashim it seems that even if they salted
it together with kosher meat, the matter still needs more study. But,
in our case, where the eye doctor wrote a wrong prescription, it is as
if he damaged with his hands (directly), because it was for a correct
prescription that he was paid and they relied on his examination, so
he has to pay, and especially if he conducted the examination when
he was tired.
It says in the Shulchan Aruch (Choshen Mishpat #25:1): If a judge
who judges monetary cases makes a mistake based on a well-known
law, such as those discussed in the Mishnah or the Gemara or in the
words of the poskim, his ruling is nullified and the case is heard again
according to halachah. If it is not possible to re-try the case, such as
if he ruled that the animal is tereifah and fed it to the dogs, the judge
is exempt from paying for the damages, since his intent was not to
damage. Other poskim disagree.
The Ketzos Hachoshen (ibid., 6) says: Nowadays according to
the Baal Hama’or who exempts a judge from payment for damages
since he is “forced” into the situation, it is likely that a judge would
be obligated to pay for his errors. This is because it has become the
widespread custom to pay a dayan for his work. Thus he is now like
an expert slaughterer who made the animal into a tereifah. He is ob-
52 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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knowingly brought a sick, blind and retarded child into the world,
one whose condition is much worse than someone suffering from
Hunter disease, will certainly be condemned by the secular court. But
this is unacceptable.
To broaden the question some more, if we use our own intellect to
decide who is better off being alive and who would have been better
off not being born, the implications are many. A child born to im-
poverished parents of poor intelligence is likely to inherit his parents’
poor intelligence and dire financial status. His is likely to live his
entire life in anguish and in poverty. Perhaps he should also sue his
parents or have them arrested and put in handcuffs for the injustice
they did to him when they brought him into this world?
It is a short, slippery slope from this mode of thinking to ancient
Spartan philosophy. This was the basic philosophy of the Nazis, our
worst enemies ever.
Let us take a look at the history of our people. The Jewish People
has endured pain, poverty, and decrees of forced conversion. Halachah
rules (Yevamos 47a) that if a man, at this time, wants to convert to
Judaism, he should be addressed as follows: What reason do you have
for becoming a ger? Do you not know that Israel at the present time
is persecuted and suppressed, despised, harassed and overcome by
afflictions? According to this, any Jewish child can sue his parents for
bringing him into the world to suffer and possibly be killed for his
faith. As described in the Kinos of Tisha B’av, during the destruction
of the Temple streams of blood flowed from the children, women,
and babies that were slaughtered.
Amram and his daughter Miriam argued about this, as recorded
in maseches Sotah 12a, on the verse (Shemos 2:1): “And there was a man
from the house of Levi who went and took as a wife a daughter of
Levi.” Where did he go, asks the Gemara. Rav Yehuda bar Zevina
said: He went to act on the advice of his daughter. Amram was the
greatest man of that generation. When Pharaoh decreed that “Every
son that is born you shall cast into the Nile” (Shemos 2:2), Amram
said: We are working for nothing. So he went and divorced his wife.
As a result, all the Jews divorced their wives. His daughter said to
Erroneous genetic advice 2 33
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