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b. Even if the patient is a minor or a shoteh intellectually in- treatment and missed his flight as a result. It turned out that the plane 3
capable of understanding that he should not be at peace he missed fell into the ocean and all its passengers died. Is Reuven
with this physician, there is another reason to disqualify responsible to pay Shimon for the damage he caused, to appease him
him, and that is “a physician who heals for nothing is and to ask for forgiveness?
worth nothing.” The beis din will present this argument
on behalf of the minor or shoteh.
1 AnsweR
6. All this applies if the injury occurred because of negligence that
caused the patient to lose faith in his doctor. Under such cir- It seems that Reuven is exempt from payment and from asking for-
cumstances, it is preferable to seek out another physician, even giveness. This conclusion is based on maseches Bava Kamma 74b.
if he is not as expert as the first one who caused the damage. Rabban Gamliel once unintentionally blinded the eye of Tavi, his
But if the injury caused by the first surgeon was an ones, one can manservant, and he was very happy because that meant that Tavi
give him preference since he is the expert surgeon and we have would be a free man, because if a master blinds the eye of his servant,
reason to believe that he will make every effort to correct the the latter goes free. (In practice, Tavi stayed on as his servant because
injuries he caused. Rabban Gamliel told the story to Rabbi Yehoshua, who was the Av
Beis Din, so he was considered someone who “admits to a fine” and
was therefore exempt.) The Be’er Yitzchak (Yoreh Deah, Part 2 #101:2)
and the Yavetz (in his comments on Bava Kamma) question: Why
was Rabban Gamliel happy? He had mistakenly violated the prohibi-
tion of wounding, and although it was unintentional he still required
atonement!
And the Beis Yitzchak answered: This appears to concur with the
Turei Even (Megillah 28), which states that a person can forgive the
damage done to him so that the person who wounded him will not
be considered as having violated a negative precept of the Torah.
Tavi, Rabban Gamliel’s servant, certainly forgave the wound since
he wanted to go free. Thus Rabban Gamliel did not violate this lo
ta’aseh, and was glad. Likewise, Shimon was certainly happy that he
was saved from the plane-crash and forgave Reuven for the damage
and the pain.
But one can negate this proof, because there, at the time of the act,
Tavi was already free because of the wound that had set him free,
which is not the same as in our case where at the time that Shimon
was hit by Reuven’s car he endured much suffering, and only later did
he realize that his life was saved as a result. The wound did not save
him; rather it caused him not to fly and thereby his life was saved.
70 1 Medical-HalacHic Responsa of Rav ZilbeRstein Removed the Wrong Kidney 2 79
