Halakhah zu Schemot 21:19

Noteworthy is not only Maimonides' extension of this concept to cover medical matters but also his failure to allude at all to the verse "and he shall cause him to be thoroughly healed." It would appear that Maimonides is of the opinion that without the granting of specific permission one would not be permitted to tamper with physiological processes; obligations derived from Deuteronomy 22:2 would he limited to the prevention of accident or assault by man or beast. The dispensation to intervene in the natural order is derived from Exodus 21:20; but once such license is given, medical therapy is not simply elective but acquires the status of a positive obligation.³Cf. R. Baruch ha-Levi Epstein, Torah Temimah, Exod. 21:19 and Deut. 22:2. Cf., also, R. Abraham Danzig, Ḥokhmat Adam, 141:25. As indicated by Sanhedrin 73a, this obligation mandates not only the rendering of personal assistance, as is the case with regard to the restoration of lost property, but, by virtue of the negative commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16), the obligation is expanded to encompass expenditure of financial resources for the sake of preserving life of one's fellow man. This seems to have been the interpretation given to Maimonides' comments by R. Joseph Karo, who, in his code of Jewish law, combined both concepts in stating: "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 the physician withholds his service it is considered as shedding blood."⁴Yoreh De‘ah 36:1. See R. Eliezer Waldenberg, Ramat Raḥel, no. 21, and idem, Ẓiẓ Eli‘ezer, X, no. 25, chap. 7.

The Gemara, Bava Kamma 85a, declares "'… and he shall cause him to be thoroughly healed' (Exodus 21:19.)—From here [it is derived] that the physician has been given authority to heal." In Jewish law, as in all coherent legal systems, all activities are permissible unless they are expressly prohibited or contraindicated on the basis of some legal or moral consideration. If so, in the absence of any countervailing consideration, why should a physician require explicit permission to practice the healing arts? Absent the scriptural dispensation provided by this verse, why should a physician shrink from using his skills in order to cure a patient? In their respective commentaries on this talmudic passage, Rashi, Tosafot and Rashba explain that the constraint is theological in nature. To paraphrase Rashi's formulation: "If God afflicts, how dare man attempt to cure?" Or, as expressed by Tosafot, in curing the patient, the medical practitioner "appears to thwart the divine decree." Such would be the physician's concern in the absence of specific dispensation; once permission is given, practice of the healing arts becomes intrinsic to God's providential guardianship of man and hence medical ministration is not only permissible or even commendable but is mandatory.²⁴See this writer’s “The Obligation to Heal in the Judaic Tradition,” Jewish Bioethics, ed. Fred Rosner and J. David Bleich, 2nd edition (New York, 2000), pp. 22-30.

The right to claim compensation for damages resulting from a battery is quite distinct from the prohibition regarding "wounding." The prohibition against wounding is derived from Deuteronomy 25:3 and is in the nature of a "criminal" offense; liability for damages is derived from Exodus 21:19–25 and is in the nature of a civil remedy. Therapeutic wounding is excluded only from the prohibition recorded in Deuteronomy 25:3. Thus, therapeutic wounding may be entirely permissible and yet result in tort liability. Tosafot, Baba Kamma 60b, and Rosh, Baba Kamma 6:12 and Sanhedrin 8:12, rule that the victim whose life has been saved must compensate the rescuer for expenses incurred in the rescue. It should logically follow that the rescuer is also entitled to compensation for injuries to his person sustained in the rescue endeavor. The selfsame principle should logically apply to intentional "wounding" for the purpose of saving the life of another. Indeed, Hagahot Mordekhai, Sanhedrin, sec. 718, declares that a person may cut off the limb of another in order to save his own life "but must pay him the value of his hand." As has been shown earlier, Hagahot Mordekhai's ruling regarding committing an act of mayhem in order to preserve one's own life is decidedly a minority opinion but, if that position is indeed accepted, his ruling regarding tort liability appears to be unexceptional. A fortiori, in situations in which the person wounded is under no obligation to render assistance, he should be entitled to damages for any wound sustained, including compensation for pain and suffering. A minor is certainly not bound by any biblical commandment. Hence, even in circumstances in which a minor's bone marrow may be removed for purposes of transplantation, the minor would be fully entitled to receive compensation for tort damages to the extent that damages for battery are actionable in our era.¹⁰⁴See Shulḥan Arukh, Ḥoshen Mishpat 1:2 and 1:8.

Judaism recognizes divine proprietorship over all objects of creation, including the human body. Judaism expressly teaches that the individual has no proprietary rights with regard to his own body, and hence is forbidden to mutilate or wound his own body (see Rambam, Hilkhot Hovel u-Mazik 5:1).^16aCf. R. Joseph Babad, Minḥat Ḥinukh, no. 48; and R. Chaim Chizkeyahu Medini, Sedei Ḥemed, I, Ma‘arekhet ha-Alef, Pe’at ha-Sadeh, no. 40. A person's body is committed to him for safekeeping, and hence self-mutilation or any form of assault upon the body is viewed as a breach of this stewardship. Dispensation for intervention in physiological processes for therapeutic purposes is granted in the biblical directive, "and he shall cause him to be thoroughly healed" (Exod. 21:19). Thus, a surgical operation to correct a deformed or malfunctioning organ is specifically excluded from the prohibition against "wounding."