Concerning a case of damages, in which a person assaulted and injured somebody else, the Pasuk teaches that there is an obligation to pay for his healing: “and heal shall he heal” (Shemos 21:19). The Gemara (Bava Kama 85a) cites Rabbi Yishmael, who derives from the Pasuk that it is generally permitted for a physician to heal.

As Rashi explains, one might have thought that if Hashem inflicts a person with a disease, it is forbidden for us to intervene and heal it. In fact, this is the opinion of Rabbi Acha (cited in Berachos 60a), who states that medicine is in principle the exclusive domain of Hashem (though post facto, and not through Divine authority, people have adopted the practice of healing). Abaye, however, disputes this opinion, based on the exposition of Rabbi Yishmael: Hashem has given us permission to heal.

Presenting a slightly different take on the question of healing, the Midrash (Socher Tov, Shmuel 4:1) notes an incident where Rabbi Yishmael and Rabbi Akiva gave medical advice to a sick person. A farmer approached them and questioned why it was permitted to heal—surely the illness comes from Hashem? They answered that this is similar to a tree. Just as a tree will not grow if the surrounding earth it is not fertilized and plowed, and if a tree is not watered and fertilized it will die, so is the human. Our fertilizer is medication, and our farmer is the doctor.

In the present article we will discuss halachic issues related to healing. Is there a virtue of not going to a physician? What is the source of the mitzvah to heal? And can a physician take payment, maybe even exorbitant payment, for his services? These questions, among others, are addressed below.

Going to Doctors

The Ramban famously writes (in his commentary to the Torah, Vayikra 26:11) that when the majority of the Jews are free of sin they do not need the services of a doctor. This is based on the words of the Pasuk “for I am Hashem, your Healer” (Shemos 15:26): “This is how the tzaddikim acted during the era of the prophets. Even when they sinned, and therefore fell ill, they would not consult with physicians but only with prophets.” He concludes that “one who seeks Hashem by means of a prophet has no need to consult with a physician, and what is the need for doctors in the house of Hashem.”

Some have stated, based on the Ramban, that even today there is a virtue in refraining from visiting a physician. If a person wishes to place his trust in Hashem, rather than upon medical practitioners, then he is living the ideal, and he is permitted to do so (see Shut Avnei Nezer, Choshen Mishpat 193; Sefer Agudas Ezov).

However, this may not be an accurate representation of the Ramban’s position. The Ramban writes elsewhere, in a halachic work (Toras Ha’Adam, Shaar HaSakana) that “the permission to visit a physician is in fact a mitzvah and is included in the principle of pikuach nefesh.”

Clearly, the Ramban understands that there is an obligation to visit a physician in case of illness. Moreover, even in the above citation, the Ramban refers to the “era of the prophets” in which “Israel are in a state of plenty and perfection, so that their matters are not conducted by ways of nature […] for Hashem will bless their bread and water and will remove disease from their midst.” This is not our condition today and it has not been so for a long time.

Rav Ovadia Yosef  (Shut Yecheveh Da’as, Vol. 1, no. 61) writes that even according to the Ramban, times are different today and prophecy has ceased, so that there is an obligation to act in accordance with medical advice. Shevet Yehuda (336) likewise states that a patient needs to search for the most qualified physician and the most appropriate medications, and that those who refrain from doing so are acting sinfully, with “criminal negligence.”

In fact, we already find in the Rashba (Shut HaRashba 1:413) that it is forbidden to rely on a miracle in medical matters and, where necessary, a visit to the physician is an obligation. As for the mitzvah of reliance on Hashem—the mitzvah of bitachon—the Rashba writes that one should trust in Hashem that he will send us healing by means of a specific physician, and not that He will send miraculous healing without medical intervention.

Although true healing, as the Taz states (Yoreh De’ah 336:1), is from Hashem and by means of prayer, “a person does not merit this, and he must go through the healing process in keeping with the nature of the world, and as Hashem has given us permission to do, which is therefore an obligation.” He also writes that this is the position of the Ramban himself.

Rav Asher Weiss (Shut Minchas Asher, Vol. 1, no. 120) notes that this emerges from several additional authorities, including the Shach and the Magen Avraham, and concludes that there is no question that a person must engage in medicine, along with prayer.

A Mitzvah of Healing

Once permission is granted, it is a mitzvah to heal. This obligation of healing is echoed by the Shulchan Aruch (Yoreh De’ah 336:1, citing the Ramban): “The Torah gave permission to a doctor to heal; this a mitzvah and falls under the category of pikuach nefesh (saving a life). If one refrains from it, he is considered a murderer. This is true even if there are other doctors available to heal the patient, since a person is not privileged to be healed through everyone.”

Authorities discuss what the source of the mitzvah is—which mitzvah category does healing fall under. The Rambam suggests that this falls under the obligation of returning lost property (see below), which includes returning a person’s state of good health to him. This is also mentioned by the Minchas Chinuch (237, Kometz Hamincha) and the Maharsha (Sanhedrin 73a), who cites the negative imperative forbidding a person from ignoring another’s lost property.  Others suggest additional sources, such as vechai achicha imach (which refers to aiding a poor person), or to the general instruction of loving another person as one’s own self (see Shut Tzitz Eliezer 13:56).

Though some medieval commentaries distinguish between external wounds, for which there is a mitzvah to heal, and internal wounds, from which one should refrain from intervening (see Ibn Ezra, Shemos 21:19), this is not a mainstream approach, and according to normative halachah the mitzvah applies to all cases of illness.

Moreover, we seem to learn in the Mishnah that healing is a mitzvah. The Mishnah teaches: “A person who is under vow not to benefit from his fellow… may receive healing from him” (Nedarim 4:4). The Rambam explains (in his commentary to the Mishnah) that this is permitted because the physician is obligated by Torah law—as derived from the principle of returning lost property—to heal the sick. For this reason, it is not considered as though the physician actually benefits the sick person, for this benefit is merely the fulfillment of a Divine instruction to heal the sick.

The final sentence of the Shulchan Aruch, stating that a person cannot know which physician will be effective in his healing, has several ramifications concerning the personal obligation incumbent on each physician. For example, the Pitchei Teshuva (Yoreh De’ah 380:1) quotes the Chamudei Daniel concerning a doctor’s duties during his shiva, when a person is generally not allowed to engage in business or to leave his home.

The Chamudei Daniel rules that despite this halacha, a doctor who is summoned during shiva to treat a very sick person is permitted (or even obligated) to assist the patient. Shut Tzitz Eliezer (13:56, citing Shut Shevus Yaakov 1:86) writes that this is true even when other doctors are available, because of the principle of “lav min hakol”—not every physician will succeed in healing.

Taking Payment

The Shulchan Aruch rules (Yoreh Deah 336:2) that it is forbidden for a doctor to take payment from a patient for his knowledge and advice. However, he may take payment as sechar batalah—payment for not being able to engage in other employment—as well as charging for the trouble of healing him. The Aruch Hashulchan (336:4) also allows doctors to charge for travel, writing prescriptions and all overhead expenses.

By contrast with this limiting halacha, the Shulchan Aruch also rules (336:3) that if a doctor demands a fee for the treatment as a precondition for treatment, the patient is obligated to pay him if he wants that  doctor. The first halacha (above) relates to demanding payment after performing the act of healing, for which payment is limited to trouble and to loss of income; if an amount was agreed in advance, the entire sum must be paid.

The Rema explains (based on the Ramban) that although it is a mitzvah for the doctor to treat the patient, he is not required to do so for free and is entitled to receive a fee. The reason for this is that the mitzvah of healing is applies to everyone and does not fall on a particular doctor. His choice to engage in the profession, and to heal in this case, entitles him to demand payment.

Exorbitant Fees

Can a doctor demand exorbitant fees for healing?

Concerning the sale of medicine, the Shulchan Aruch (336:3) writes that if a person is in possession of medicine needed by sick person, and refuses to sell it unless the person gives him a disproportional sum of money, it is permitted for the sick person to agree to pay the high price, yet ultimately (after getting the medication) to pay the normal cost alone. This halacha is also based on the Ramban (Toras Ha’Adam).

The Ramban explains that this is different from the case of treatment. In the case of medical treatment, the patient must pay whatever price was stipulated, since he agrees to pay for the doctor’s expertise. Unlike medicine, a doctor’s opinion and expertise are commodities that have no set price (see Taz, Yoreh Deah 336:3).

However, Shut Tzitz Eliezer notes that this halacha applies only in circumstances where the doctor could theoretically refuse to offer treatment, so that he can demand payment for the treatment he agrees to give. By contrast, he rules that just as a mohel must perform a bris for free if he is the only mohel in town, so the same principle applies to doctors: If a doctor is the only person in a city capable of providing medical care, he is also forced to treat and not to demand remuneration, apart from his trouble and losses. Only when there are other physicians in the city may a doctor refuse treatment of a patient, and perhaps agree only if he receives extravagant payment.

The Tzitz Eliezer cites Radvaz (Shailot Uteshuvot Ha’Radvaz, Vol. 3, no. 986 (556)), who also asserts that a doctor’s right to charge for treatment is limited to a scenario where the patient has alternative options. He writes that the Ramban (the source of the halacha) will concede that if there are no other doctors (of the same level) available, then the mitzvah (of returning lost property, vehashevoso lo) falls exclusively on this specific doctor. He therefore cannot refuse treatment, and cannot charge beyond his trouble and his loss of alternative income.

Conclusion

We have seen that there is an obligation on the part of everybody who is sick to visit a physician, and that there is a mitzvah on the part of medical practitioners to heal. One of the ramifications of this mitzvah, as discussed above, concerns payment that the doctor can demand for his services.

However, there are several other ramifications of this mitzvah that are yet to be discussed. Specifically, are doctors exempt from other mitzvos on account of their being occupied with the mitzvah of healing? And moreover, what is the status of alternative methods of healing—are they included in the medical category, and which halachic issues might they raise?

We will discuss additional issues in next week’s article im yirtzeh Hashem.

 

 

 

 

 

 

 

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