Page 60 - 20818_park-B_efi

As brought down in the Tur (Yoreh Deah #336), in the allowed to sue for compensation which will then be used to decrease
name of the Ramban (Toras Haadam), an expert physician
who heals with a license from a beis din and caused damage
goes into exile. If his error did not become known, he is not
punished at all, but if he erred and the beis din learned of
it, although a judge who is licensed by a beis din would be
exempt, a physician is not exempt in the eyes of a Heavenly
Court and must pay for the damages. If the patient died as
a result of the error, the physician is exiled since his error
became known and he caused damage or actively killed the
patient. But a judge is exempt completely, both in a human
court and in a Heavenly Court.
In short, the Imrei Binah wonders why a physician who errs is exempt
from a human court but is guilty in the eyes of the Heavenly Court,
while a judge who errs is exempt even in the Heavenly Court.
The Imrei Binah proves that a judge, as opposed to a physician, is
completely exempt even in the Heavenly Court. As it says in Sanhe-
drin 33a, Beis Menachem had a cow whose womb was removed, and
Rabbi Tarfon ruled it was a tereifah and fed it to the dogs to fulfill
the mitzvah (Shemos 22:30) of “And you shall be holy people for Me,
you shall not eat any meat that is torn of the beasts of the field, and
shall cast it to the dogs.” When the Sages of Yavneh heard about
the cow, they ruled that it was kosher because Todos, the physician,
said that no cow leaves Alexandria in Egypt unless its womb has
been removed. [Apparently, the Egyptian cows were prized and the
Egyptians did not want any of them to be exported and bred. That is
why they remove their wombs so that they could not reproduce.] The
cows would continue living nonetheless and are thus not considered
tereifah. When Rabbi Tarfon heard their ruling, he assumed halachah
demanded that he sell his donkey in order to buy the owner a new
cow. Rabbi Akiva told him: You are exempt because anyone who is
an expert judge is exempt from payment for an error. Certainly, Rabbi
Akiva’s words imply that Rabbi Tarfon was exempt in the Heavenly
Court; otherwise it would be empty consolation for Rabbi Tarfon,
54 1 Medical-HalacHic Responsa of Rav ZilbeRstein
#
2
his suffering however possible.
Is this lawsuit halachically justified?
1
AnsweR
Let us first examine the assertion of the secular courts that some
patients would have been better off had they not been born.
It says in maseches Eruvin 13b: For two–and-a-half years, Beis Hil-
lel and Beis Shammai argued. One group said: It is better for man
to be created than not to be created, and the other group claimed it
would have been better for man not to have been created than to have
been created. They discussed it at length and concluded: It would
have been better for man not to have been created …but now that he
has been created, he should examine his past deeds, and others say he
should examine his future deeds.
The Ramchal writes in Mesilas Yesharim (Ch. 1):
In truth, no intelligent person can believe that the purpose
of man’s creation is for the present world, because what
is the life of man in this world? Who is truly happy and
tranquil in this world? “The days of our years are seventy
years, or if by reason of strength eighty years, and most
are travail and sin” (Tehillim, 90:10). [One endures] many
types of anguish, illness and concerns, followed by death.
It is difficult to find one in a thousand for whom the world
gives pleasure and true peace.
The Chayei Olam (Ch. 6) adds:
He who looks into it will see, in himself and his acquain-
tances, that most of his living days are [spent in] anguish
and various types of pain. Most people suffer from the lack
of a livelihood or the burden of debts, while for the rich
the many assets lead to much concern. Envy eats him up
and regret pierces through him. (Why did he not have the
Erroneous genetic advice 2 20818_efi-ab - 20818_efi-ab | 2 - A | 18-08-20 | 13:29:01 | SR:-- | Magenta 20818_efi-ab - 20818_efi-ab | 2 - A | 18-08-20 | 13:29:01 | SR:-- | Cyan 20818_efi-ab - 20818_efi-a
# 20818_efi-ab - 20818_efi-ab | 2 - A | 18-08-20 | 13:29:01 | SR:-- | Magenta #20818_efi-ab - 20818_efi-ab | 2 - A | 18-08-20 | 13:29:01 | SR:-- | Yellow