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for money you will not treat yourself properly and people will
remember me when they see the wound.
The Rambam (Hilchos Chovel Umazik 2:18) writes as follows: If the
person who damaged him said to him, “I will heal you” or “I have a
physician who heals for nothing,” one pays no attention to him. He
has to bring an expert physician who will heal him for a fee. Note that
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the Rambam omits the reason brought in the Gemara: “You appear
to me like an ambushing lion,” and he writes the two laws (i.e. that a
physican must be brought in, and that he must be paid) as one.
The Tur (Choshen Mishpat #420) also, like the Rambam, omits the
reasoning that the wounded party may claim that the person who
damaged him “appears like an ambushing lion” and bases the halachah
that the person who damaged must bring in a paid physician on the
fact that “a physician who is paid nothing is worth nothing.” The Beis
Yosef explains that this is because this reasoning can be applied both
in the case where the damager wishes to heal the patient himself, as
well as in the case where the damager wishes to bring in a physician
free of charge.
We can also add the reasoning that “a physician who heals for
nothing is worth nothing” is more all-inclusive than the assertion that
“you appear to me like an ambushing lion.” The former reasoning can
be applied even if the wounded party is a minor or shoteh, who is
halachically considered incapable of imaginative thought. The beis din
can claim, even on behalf of a minor or shoteh, that “a physician who
heals nothing is worth nothing.”
Moreover, the reasoning that the person who damaged him “ap-
pears to him like an ambushing lion” must be voiced by the damaged
party himself. If he is silent, the beis din cannot claim this on his be-
half. However, even if he is silent, the beis din can argue on his behalf
that “A physician who heals for nothing is worth nothing.” In fact, if
the injured party does not know this, we are obligated to claim for
him. As it says (Mishlei 31:8): “Open your mouth for the mute” (as
explained in Bava Basra 41a).
The words of the Rambam and the Tur are precise. They both write
that one “does not pay attention” to the person who damaged if he
66 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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1 AnsweR
It says in theTosefta (Bava Kamma 6:6): If one cut out the fetus with 3
permission from beis din [because it was endangering the mother’s
life] and caused damage, he is exempt in a human court and his judg-
ment is given over to the Heavenly Court. Chasdei David explains
that this refers to a case where the physician had the good intentions
of saving the woman’s life. He had no intent of hurting or damaging
her, but rather he intended to extract the fetus that was endangering
her life. Nonetheless, if he acted without the permission of a beis din
and erred and harmed her, he is obligated to pay for the damage. But
if he acted with the permission of a beis din he is exempt because of
“the good of the world” (so that doctors will not refrain from treating
their patients because of the fear that they will be made to pay for
inadvertent damages). In our case, since the doctor who performed
the Caesarean has the permission of a beis din and he is an expert in
this type of surgery, he is exempt in a human court “for the good of
the world.”
This brings additional proof for our answer in the question above
(#2). In the case of the driver who hit a woman and cured her of her
muteness, since he did so without the permission of a beis din, he is
obligated to pay for breaking her ribs.
However, it is possible to disqualify this proof. The physician
who made a mistake injured the woman in a way that had nothing
to do with the act of saving her life through the Caesarean section.
Therefore he is exempt only for “the good of the world.” On the other
hand, the driver who hit the mute woman would not have been able
to restore her speech had he not knocked her into the air. The Tosefta
teaches that one must differentiate between an error that actually
caused the saving of life, as in the story of Rabban Gamliel and his
servant, Tavi, and an error due to unnecessary actions. This would
apply to the driver who hit the woman as well.

Removed the Wrong Kidney 2 83
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