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Physicians’ Strikes and Jewish Law – by Fred Rosner, M.D., F.A.C.P.

Introduction

In 1975, writing about the immorality of a strike by resident physicians (housestaff) in New York City, 1 I pointed out that “for a physician to strike, for whatever reason, is unconscionable and totally contrary to every standard of medical ethics and morality.” Although sympathetic to the demands of the housestaff, I argued that to leave patients without direct medical assistance and attendance put the striking physicians in an untenable moral position.

In 1983, a lengthy strike by physicians took place in Israel which ended only after both sides agreed to submit disagreements on salaries and other unresolved issues to binding arbitration. Since many of the striking physicians were Torah-observant Jews, they turned to rabbinic authorities for guidance on this matter. The rabbis were unanimous in their condemnation of physicians who withheld their services from patients by striking. The Jewish legal reasoning upon which this halachic ruling is based is the substance of this essay. A brief review of the physician’s religious license and obligation to heal and physicians’ fees is also presented as background for the rabbinic ruling which follow.

Physicians’ license and obligation to heal

One could argue that since a person becomes sick only through Divine Providence, it might be forbidden to try to oppose “G-d’s will” by seeking therapy. However, the biblical verse “and heal he shall heal”2 is interpreted by the talmudic sages to mean that authorization is granted by G-d to the human physician to heal.3 In Jewish law, a physician is not merely allowed to practice medicine but is in fact commanded to do so if he has trained to become a physician.

This biblical mandate is based upon two scriptural precepts: “And thou shalt restore it to him” 4 refers to the restoration of the lost property. In his Commentary on the Mishnah, Rambam states that “it is obligatory from the Torah for the physician to heal the sick, and this is included in the explanation of the scriptural phrase ‘and though shalt restore it to him.”‘5 Thus, Maimonides, following the Talmud,6 states that the law of restoring lost property includes also the restoration of health. If a person has “lost his health” and the physician is able to restore it, he is obligated to do so.

The second scriptural mandate for the physician to heal is based on the phrase “neither shalt thou stand idly by the blood of thy neighbor.”7 The passage refers to the duties of human beings to their fellow men: One may not stand by and allow a fellow man to die without offering help. A physician who refuses to heal, thereby resulting in suffering and/or death of the patient, is also guilty of transgressing this commandment.

Some scholars, notably Maimonides, claim that healing the sick is not only allowed by Jewish law but is actually obligatory. Rabbi Joseph Karo, in his Code of Jewish Law, combines both thoughts.

 

The Torah gave permission to the physician to heal; moreover, this is a religious precept and it is included in the category of saving life; and if he withholds his services, it is considered as shedding blood. 8

 

If one asks why G-d granted physicians license and even mandate to heal the sick, one can offer the following explanation. A cardinal principle of Judaism is that human life is of infinite value, as is evident in the fact that preservation of human life takes precedence over all commandments in the Bible except three: idolatry, murder, and forbidden sexual relations. In order to preserve a human life, the Sabbath and even the Day of Atonement may be desecrated, and all other rules and laws save the aforementioned three are suspended for the overriding consideration of saving a human life. A person who saves one life is “as if he saved a whole world.” 9 This obligation to save lives, moreover, is an individual as well as a communal obligation. Certainly a physician, who has knowledge and expertise far beyond that of a layperson, is obligated to use his medical skills to heal the sick and thereby preserve and prolong life.

Physicians’ Compensation and Fees

The biblical verse “and heal he shall heal” actually relates to compensation for medical expenses arising from personal injuries; it is usually translated “he shall cause him to be thoroughly healed.” This is an obvious reference to the payment of medical expenses by one who inflicts an injury on his neighbor. Healing expenses are one of five items of compensation due by law to an injured party. 10 (A more detailed analysis of physicians’ fees is provided elsewhere. 11) Briefly summarized, the physician is entitled to reasonable fees and compensation for his services. In talmudic times, when physicians, rabbis, teachers and judges served the community but also had other occupations and trades, their compensation was limited to lost time and effort. Nowadays, however, when physicians have no other occupation, they can charge for their expert medical knowledge and receive full compensation.

Excessive fees are discouraged but not prohibited if the patient agrees to the fees in advance. Indigent patients, however, should be treated for reduced or no fees at all.

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