Ask the Rabbi: May doctors go on strike?

One can only hope that both sides will work together to ensure that the central mitzva of saving lives is maintained at the highest standard.

By SHLOMO BRODY
June 3, 2011 16:41
4 minute read.
DOCTORS AT Kaplan Hospital

DOCTORS AT Kaplan Hospital 311. (photo credit: Courtesy)

 
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While work stoppages are a contentious topic within Jewish law, doctors’ strikes remain particularly complex because of the central services of health-care providers.

As of this writing, the ongoing labor dispute between Israeli doctors and the government has already caused the delay of many elective surgeries and other important procedures. Those of us, including myself, who have had loved ones in the hospital on a strike day certainly understand the angst created by such work slowdowns. Even as most medical services remain intact, it behooves us to reflect on the morality of such methods.

Significantly, doctors claim that they are not only seeking increased wages, but also better health-care conditions, including more hospital staff and beds. Indeed, the state comptroller recently contended that shortages have caused neglect in certain circumstances. This article will not attempt to enter the fray of this particular dispute, but instead elucidate general halachic principles.

Saving another person’s life fulfills the biblical injunction “You shall not stand over your brother’s blood” (Leviticus 19:16), as well as the obligation to restore someone’s property (Deuteronomy 22:2), including their physical welfare (Sanhedrin 73a). While these commandments do not compel one to become a doctor, they dictate that all medical treatment fulfill a biblical imperative (YD 336:1). As a general rule, one should not receive money to perform commandments, and therefore judges, as well as teachers and rabbis, were traditionally forbidden to charge for their services (Bechorot 29a).

Yet the Talmud is replete with discussions about responsibilities for medical fees. Indeed, the Torah itself mandates that victims of violence are entitled to compensation for healing charges (Exodus 21:19), with the ancient Targum translating the relevant phrase as “he shall pay the doctor’s fee.” Indeed, as Rabbi Yisrael Meir Lau has noted (Yahel Yisrael 2:59), some medieval commentators understood this verse to permit doctors to receive remuneration, even though medical care is a mitzva (Tosafot Rosh Brachot 60a). The Talmud goes so far as to say that the victim can refuse gratis health care provided by the assailant’s friend, on the assumption that “a physician who heals for nothing is worth nothing” since they will be less attentive to that patient (BK 85a).

However, Nahmanides, himself a 13thcentury Spanish physician, asserted that health-care providers, like judges, may only receive remuneration for their trouble (tirha) and lost time, but cannot charge for their knowledge, diagnoses and treatment (YD 336:2). While commentators debate the parameters of these variables, they clearly impose limitations on medical pay. Doctors who demand greater fees have received moral reproach, even as most decisors rule that a patient must pay in full, since one cannot obligate a particular doctor to treat someone in a nonemergency situation (YD 336:3). Accordingly, if a particular doctor has unique expertise in an illness (Radbaz 3:556), or an indigent person could not get health care elsewhere (Teshuva Me’ahava 3:408), local authorities may force a doctor to treat this patient, with some asserting that society must establish (minimally) healthcare systems to treat the indigent (Tzitz Eliezer Rameh Rahel 5:24).

DESPITE THESE historical sentiments, most decisors justify the contemporary practice of doctors receiving salaries that compensate well beyond their effort and loss of time. Rabbi Shaul Yisraeli asserted that the extensive time and money necessary for medical training permits greater compensation (Havat Binyamin 3:110), with others further noting the mandatory time doctors spend on call and in hospitals (Nishmat Avraham 336:9). Rabbi Moshe Feinstein contended that unlike earlier eras, doctors today function exclusively in one profession, and therefore can receive complete compensation (as do rabbis and teachers), especially since their fees are agreed upon by their patients (Igrot Moshe YD 4:52). Others have further argued that liabilities from malpractice suits mandate that doctors receive more for the risks incurred (Teshuvot Vehanhagot 1:897).



Although these dispensations allow doctors to receive greater compensation for this mitzva, health-care providers must not endanger patients – and thereby neglect the commandment of saving lives – while disputing their wages. In 1983, Israel suffered from a four-month physicians’ strike, which included hunger strikes and major walkouts from hospitals. While acknowledging that his directive would impair the strike, Rabbi Shlomo Goren criticized any steps that neglected patient care, even as he permitted doctors to demand greater wages and to collect private payment in the interim. Rabbis Shlomo Auerbach and Yitzhak Weiss asserted that while the physicians could implement work slowdowns (such as Shabbat schedules), they could not simply walk away from their treatment responsibilities. This was definitely true, asserted chief rabbis Avraham Shapira and Mordechai Eliahu, once the government had agreed to mediation (Assia 5).

In the current standoff, one can only hope that both sides will quickly work together to ensure that the central mitzva of saving lives is maintained at the highest possible standard.

The writer, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel.

JPostRabbi@yahoo.com

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