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the damage, but he would not deserve to be hit by the gentile. Thus,
had the Gaon spoken up he would have been giving over a Jew to
undeserved punishment). He would then have to return to the world
as a barking dog, and neither his Torah nor his good deeds would
have saved him from this punishment.
Why was it forbidden for the Vilna Gaon to tell the gentile that
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he was not at fault? His intent was to save himself, so why should he
bear responsibility for the fact that the gentile might hurt the Jewish
coachman as a result? One can answer that his own innocence and
rescue from harm and the coachman’s suffering at the hands of the
gentile were irrevocably linked; one could not occur without the oth-
er. Thus he had no right to clear his own name and bring harm upon
his fellow. (So, too, writes the Chafetz Chaim (Principle 10, #17) in
Be’er Mayim Chayim, and cites proof from the Shulchan Aruch (Chos-
hen Mishpat #388) and the Biyur Hagra, there.)
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1 SuMMaRy and Conclusions
A physician who was supposed to remove a kidney for transplanta-
tion and erred and removed the wrong kidney, which was then shown
to be cancerous, is exempt from paying the patient compensation for
removing the wrong kidney. The patient must pay the usual fee for re-
moving a diseased kidney but not the fee paid for removing a kidney
for the purpose of transplantation.
92 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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woman clean for her husband (Vayikra 12:2ff). Moreover,
in whatever I do I seek the advice of my teacher, Mefi-
boshes, and I tell him, “My teacher, did I judge well? Did I
convict correctly? Did I properly declare the innocent to be
innocent? Did I properly declare that something is tahor?
Did I properly declare that something is tameh? And I
was not ashamed. Rabbi Yehoshua, son of Rabbi Idi, said:
Which verse can be recited in support [of this assertion
by David]? “And I will speak of your words, Hashem, to
kings, but I will not be ashamed” (Tehillim #119:46).
The teacher of King David wasn’t Mefiboshes but Ish
Boshes. Why was he called Mefiboshes? Because he hu-
miliated (mevayesh) King David in halachah.
It is especially forbidden to be ashamed to ask in a case of danger to
life, and specifically when the case concerns an illness, such as inflam-
mation of the appendix, where errors in diagnosis are common (up to
20% of cases, as cited in the question), or any internal illness the facts
of which are largely hidden from us.
What is the law regarding a physician who is widely known as
an expert and is certain that his diagnosis is correct? If he has the
opportunity to consult with another physician greater than he, is he
obligated to consult with him? And if he does not consult and the
patient dies under his care, is he classified as a murderer?
The Shulchan Aruch says: “A person should not practice medicine
unless he is an expert and there is no greater physician there than he.”
The Vilna Gaon, there (104) cites the source: We learn this as a kal va-
chomer from other laws and rulings in the Torah which are forbidden.
But the Rama (Yoreh Deah #242:31) writes: A person should not issue
halachic rulings until he is forty years old if there is another Torah
scholar greater than he in the city. This means that if a rav reached
the age of forty years, he is allowed to issue halachic rulings, even if
there is a greater rav than he in the city. If so, the same may apply to
a physician. If he reached the level of being an “expert,” he is allowed
Do they require exile? 2 121
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