Do we say the din of “ein pesichas hakever b’lo dam” by an isha zakana who is “mesulekes m’damim”?
Answer:
In principle, the halachah of “ein pesichas hakever b’lo dam” does apply even to an elderly woman.
This emerges from the ruling of poskim concerning dam chimud (Yoreh De’ah 192:1), who write that the principle applies even to an elderly woman (see Pischei Teshuva 1; Birkei Yosef, Shiyurei Shiyurim 2;Shut Chayim Shaal 26; Makom Shmuel 33; Beis Yehuda 2:63). The same ruiling will apply to the idea of ein pesichas hakever b’lo dam.
At the same time, there are some instances in which there is greater room for leniency with regard to an elderly woman, and this depends on the concrete question.
While true we must look to other dinim that are related to a zakanah that a similarity could be drawn from. Dam chimud is certainly one of them, that even though she is mesulekes m’damim, still we are choshesh for Dam Chimuk. One makor for this as mentioned here is the Givas Shaul that the Pischei Teshuva brings who has a very good argument as to why even by a zakanah we should be choshesh. For the other makoros mentioned here the ShuT Chaim Shal also discusses this however doesn’t seem to explain really the reason why. In ShuT Yehuda Ya’leh from Mahari Asod he deals with this shailo also and shows already from Rishonim (Bedek HaBayis) that the din of dam chimud is even by a zakanah. He does bring possible reasons to be makil however we see that it seems all of the poskim without one cholek were makabel this din by a zakanah, v’tzrich iyun. The shailo here however was in regards to the din of “ain pesichas hakever b’lo dam”. As I mentioned a similar din would be dam chimud, however we find already poskim speaking about this din itself in particular. The Noda B’Yehuda in his famous teshuva (Siman 120) that deals with the shailo of “ain pesichas hakever b’lo dam” in regards to medical procedures, he says the din would also be true about a zakana. However aside from the fact that many are cholek on the Noda B’Yehuda b’clal, we find that there are cholkim in the prat that “ain pesichas hekever b’lo dam” is in fact not said in regards to a Zakana. See ShuT Sharei Deah Siman 149 (here – http://hebrewbooks.org/pdfpager.aspx?req=21646&st=&pgnum=85&hilite=) who is makil for a few reasons. He is cholek on the Noda B’Yehuda in the prat that the din is said by a medical procedure where the pesicha is happening from the outside, he makes a point that “ain pesichas…” is a maklokes Rishonim in itself, as well that we are dealing with a zakanah that is mesulekes m’damim (see there for more kulos he mentions in this din.) As well in ShuT Shoel U’Mashiv (see here – http://hebrewbooks.org/pdfpager.aspx?req=1424&st=&pgnum=233 – in the middle of the teshuva) is also makil by a zekana. But as mentioned every time of case of a medical procedure and “ain pesichas hakever…” needs to be looked at and evaluated on it’s on. I simply wanted to point out here that the shailo of a zakana was already discussed by many poskim (especially that there are makilim in this.) Tzrich inyun still why by dam chimud we don’t find any makilim and by “ain pesichas…” we do.
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