Feb 13th, 2013 @ 09:35 pm › Gil Student
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I. Permission to Heal
Publication of volume 4 of Verapo Yerapei, the Torah journal of the Einstein Medical School Synagogue, and the occurrence of the title in last week’s Torah portion started me thinking about the obligation to heal (on which Jonathan Ziring’s article in the journal touches). The Gemara (Bava Kamma 85a-b) deduces from the obligation of an assailant to pay for his victim’s medical treatment that a doctor has permission to heal those in need. However, elsewhere the Gemara (Sanhedrin 73a) considers healing a form of returning a lost object, returning the patient’s body, which is obligatory. The contradiction between healing as a permitted activity and a requirement begs for resolution.
One possible approach is that without the permission there can be no obligation. Why do we need any permission to heal? Is there not a fundamental requirement to save life because of piku’ach nefesh and a prohibition to stand by idly as someone dies (Lev. 19:16)? Rashi (Bava Kamma, ad loc., sv. nitenah) states that medical treatment ostensibly undermines God’s plan. If God wants someone to be ill or die, absent permission we would be restrained from defying His will. However, once medicine becomes permitted by the Torah, it becomes obligatory.
Ramban (Toras Ha-Adam, Sha’ar Ha-Sakanah 6; Commentary to Lev. 26:11) offers two reasons why the Torah needs to permit healing. The second follows Rashi, as above. This approach is entirely consistent with Ramban’s comments elsewhere, requiring people to submit to God’s plan even absent a specific halakhic obligation (see this post: link).
II. Dangerous Healing
However, Ramban’s first answer is entirely different. Medical treatment is inherently risky and uncertain. Even proven treatments sometimes encounter complications that threaten the patient’s life. Without Torah permission, we would be unallowed to endanger a patient with risky procedures. Despite the piku’ach nefesh mandate to save life, without this permission we would not be allowed to potentially cause more harm, such as hastening death, in trying to save life.
With Ramban’s second answer, we can explain why the Torah had to give permission and to obligate healing. We could answer as we did above for Rashi: once treating a patient becomes permitted, it becomes obligatory. But perhaps we can take a different approach. The risks of different medical treatments are dissimilar. Some are very risky, some less, some nearly without any risk at all. Would it really be forbidden to give someone an aspirin for a headache when the risk of negative reactions is minimal. While there is still some risk, it pales in comparison to the everyday risks we regularly take in the course of our lives. Perhaps we can say that the Torah permitted, but never obligated, risky medical procedures (however that may be defined). Treatment with little risk is obligatory. And what about piku’ach nefesh? The permission and obligation include even non-lethal illness while piku’ach nefesh and associated obligations only apply to life-threatening situations (see Tzitz Eliezer vol. 5 Ramas Rachel no. 20).
III. Different Levels of Healing
An alternative explanation that I have not seen elsewhere can take an opposite approach. Perhaps the obligation to heal only applies to illnesses that threaten permanent functioning. The source of this obligation is returning a lost body, just like a lost item. If you have to return someone’s watch, you certainly also have to return his arm or leg. But this teaches us nothing about healing an illness that does not permanently threaten bodily function. (Although nowadays, with our knowledge of the lethal threat posed by infection, the distinction is largely, but not entirely, theoretical. See Nishmas Avraham vol. 1 328:49)
If the above is correct, we are required to restore, or prevent loss of, someone’s life or limbs. However, medical treatment for temporary ailments are permitted but not obligatory. We can also explain why either of these Talmudic derivations are necessary when we have a clear obligation to save lives. Piku’ach nefesh only applies to healing life-threatening illness. For all lesser threats we need other sources for the obligation to heal.
Maharatz Chajes (Glosses to Bava Kamma 85a) notes that Rambam cites the obligation to heal from the mitzvah to return a lost object (Commentary to Nedarim 4:4; Mishneh Torah, Hilkhos Nedarim 6:8) but never quotes the “permission” to heal. Torah Temimah (Ex. 22 n. 148) infers that the Rambam sees these two derivations as contradictory. Either we are permitted or obligated to heal, not both. To the Rambam, all medical treatment is a requirement, regardless of severity. We are required to help others and dismiss thoughts of any divine plan.