Halakhah zu Schemot 21:20

The obligation to render medical assistance flows from multiple scriptural sources and a person who renders such aid fulfills a number of diverse mizvot. Perhaps the most widely quoted source is the statement found in Baba Kamma 85a: " 'And he shall cause him to be thoroughly healed' (Exodus 21:20)—from here [it is derived] that the physician is granted permission to heal." Ramban, in his authoritative halakhic work, Torat ha-Adam, comments that the "permission" or "dispensation" of which the Gemara speaks in actuality constitutes a commandment or obligation ("Hai reshut, reshut de-mizvah hi"). Thus the medical practitioner is not merely permitted, but is required, to render aid.

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.

R. Chaim Sofer, Teshuvot Maḥaneh Hayyim, Yoreh De'ah, II, no. 60, explains that availing oneself of the ministrations of a physician is permitted only because of specific dispensation granted by the verse "and he shall cause him to be thoroughly healed" (Exodus 21:20). Permission to utilize medical remedies entails an obligation to use them in the preservation of life and the obligation to preserve life, in turn, serves to obviate strictures of religious law. However, the obligation arising out of that verse, asserts Maḥaneh Hayyim, is limited to use of natural remedies; no similar obligation exists with regard to the use of non-natural, occult or metaphysical powers in effecting a cure. Infractions of Jewish law are permitted for purposes of preserving life only because such measures are demanded by Halakhah. Accordingly, Maḥaneh Hayyim maintains that, according to Rambam, even segulot of demonstrated efficacy may not be used despite danger to life if such use involves an infraction of a halakhic prohibition.

4. R. Moses Feinstein, Iggerot Mosheh, Oraḥ Hayyim, III, no. 90, rules that use of intravenous feeding in order to avoid the need for breaking the fast is not only unnecessary but is "perhaps" forbidden as well. The obligation with regard to the treatment of illness derived from the biblical verse "and he shall surely heal" (Exodus 21:20), argues Iggerot Mosheh, requires use of medication only when designed to effect a cure, but not when designed for an extraneous purpose such as enabling a patient to fast. That argument appears, to this writer, to be a non sequitur. It is quite true that the verse "and he shall surely heal" does not mandate administration of medication other than for the purpose of effecting a cure. Yet it is entirely possible that the use of medicaments is independently mandated on other grounds when the alternative to their use involves a violation of biblical law. Use of medication under such circumstances would be mandated, not in order to enable the patient to fulfill the positive obligation of fasting, but on the principle that biblical prohibitions are not suspended for the purpose of saving a life when the endangered life can be saved in some other manner.¹⁴See also Iggerot Moshe, Oraḥ Ḥayyim, IV, no. 121. In that responsum Rabbi Feinstein asserts that “it stands to reason (mistaber)” that there is no obligation to ulitize medications having no therapeutic value solely in order to be able to fast.

3. Rashi, in his commentary on Yoma 83a, adopts a position strikingly different from that of both Me'iri and Rambam. Rashi explains the position of the Sages forbidding feeding a portion of the dog's liver to the victim by stating, "Even though physicians are wont to use this therapy it is not a refu'ah gemurah to [warrant] permitting him [violation of the] prohibition regarding an unclean animal for that [purpose]." Rashi further explains that R. Mattia ben Heresh disagrees because he regards the remedy to be a refu'ah gemurah. Completely absent in Rashi's comments is any hint of a distinction between natural versus metaphysical remedies or of a distinction between a cogently understood remedy and one which is not comprehended by reason. Nor does Rashi assume that the Sages were convinced of the futility of the remedy. Instead, Rashi introduces the notion of known or demonstrated efficacy. It must be assumed that the term "refu'ah gemurah" is synonymous with the term "refu'ah bedukah" employed by latter-day scholars. As such, the term connotes a tried and tested remedy as opposed to an experimental remedy. If so, Rashi distinguishes between the "doubt" of an unknown remedy and other forms of doubt. Although halakhic prohibitions are ignored even in cases of doubtful danger and even if it is doubtful that a known remedy may help a particular patient, a therapy whose efficacy is untried and untested does not rise to the threshold level of "doubt."²⁴See Teshuvot ha-Radbaz le-Leshonot ha-Rambam, no. 153 (1,526). Put somewhat differently, the commandment "and he shall cause him to be thoroughly healed" (Exodus 21:20) imposes an obligation to utilize only what is known to possess therapeutic power, but not to engage in random activity or even to initiate research in the hope that a cure may be achieved.²⁵Cf. Mor u-Keẓi‘ah, Oraḥ Ḥayyim 328. In this discussion Mor u-Keẓi‘ah does not refer to the Mishnah in Yoma or refer to the suspension of halakhic restrictions for life-saving purposes. Mor u-Keẓi‘ah posits the category of refu’ah she-einah bedukah in delineating therapies a patient cannot be compelled to accept and regards virtually all cures for internal maladies “which even the physician does not know and recognize with clarity but rather by estimation only and which he attempts [to cure] by medicaments with regard to which he himself is in doubt” to be included in that category. Although he regards abjuration of such remedies to be commendable even on weekdays, Mor u-Keẓi‘ah apparently regards necessary violation of Shabbat restrictions and the like in conjunction with administration of such remedies to be permitted on behalf of a patient who relies upon the physician’s advice. Presumably, then, Mor u-Keẓi‘ah would accept either the analysis of Me’iri or of Rambam in explaining the controversy between Rambam and R. Mattia ben Ḥeresh. Since there is no obligation to avail oneself of such measures, their use in face of halakhic prohibitions is not permitted.²⁶See Teshuvot Kol Ben Levi, no. 2. If this analysis is correct, Rashi's interpretation of the controversy yields only limited license for setting aside halakhic restrictions in pursuit of a cure. According to Rashi, such prohibitions may be ignored only when therapeutic efficacy has actually been demonstrated in at least some cases.²⁷The attempt by R. Eliezer Waldenberg, Ẓiẓ Eli‘ezer, VIII, no. 15, chap. 8, sec. 2, to identify Rashi’s position with that of Rambam and to interpret Rashi as excluding only remedies in the nature of a segulah falls short of the mark and is contradicted by all the authorities cited in the text who require a refu’ah yedu‘ah. A similar attempt to identify Rashi’s position with that of Rambam was earlier undertaken by Teshuvot Shemesh Ẓedakah, no. 29. Shemesh Ẓedakah understands the term “yedu‘ah” as excluding segulot whose medicinal properties are not understood. At the other extreme, the interlocutor cited in Teshuvot Shemesh Ẓedakah, no. 29, endeavors to harmonize the views of Rambam and Rashi by arguing that both concede that therapeutic efficacy must be known with certainty and that Rambam’s comments merely indicate that the efficacy of a segulah can never be known with certainty.

The commandment on the court to kill with the sword one who is liable: That we have been commanded to kill the transgressors of some of the commandments of the Torah with the sword. And this law is called killing by our Rabbis. And it is a [relatively] light death penalty, but strangulation is nonetheless lighter than it (Sanhedrin 49b). And one of the ones killed by this death penalty is the one who strikes his slave - even a Canaanite [one] - if he dies from his hand, as it is stated (Exodus 21:20), "he shall surely be avenged." And the explanation comes [to tell us] that his striker should be killed by the sword. I have already written above (Sefer HaChinukh 47) that Ramban, may his memory be blessed, does not count the four death penalties of the court as four [distinct] commandments, as does Rambam, may his memory be blessed.