Vol. 12   No. 18

Parshas Mishpatim

Chazal infer from the Pasuk "ve'rapo ye'rapei" that a doctor is permitted to heal a patient, precluding the theory that if G-d dealt the stroke, then it is up to Him to heal (and we have no right to interfere).

Rabeinu Bachye, following in the footsteps of the Ib'n Ezra, qualifies this concession, restricting it to external, man-inflicted wounds, since that is what the Torah is referring to. It does not, he maintains, extend to internal illnesses of Divine origin, which a doctor is forbidden to deal with (see also Oznayim la'Torah).

The footnote in Rabeinu Bachye however, citing the Mateh Moshe, cites various examples from Shas, including Rebbi who suffered from an eye illness, which Shmuel cured, which clearly draw no distinction between the two (see Bava Metzi'a 85b).

The G'ro (cited in P'ninim mi'Shulchan ha'Gro) was once informed that a certain doctor, having given up on a certain patient, declared that there was no cure for his ailment, and that he was bound to die.

'The Torah' the G'ro replied, 'has given a doctor the right to heal a patient. But declaring a patient incurable goes beyond the scope of his authority'.

Based on the same Chazal, the G'ro also observes that whereas a doctor is permitted to heal, who permits the patient to go to a doctor? He explains that visiting a doctor constitutes a lack of Bitachon (faith in G-d), in spite of which G-d in His mercy, enlightens the doctor, granting him the medical acumen to treat the faithless patient. The G'ro does however, stop short of specifically forbidding going to a doctor.

The difficulty with the G'ro from the above-mentioned episode with Rebbi and Shmuel is blatant.

The Gemara in Rosh Hashanah 16b concludes that we are permitted to pray for the sick only according to the opinion of Rebbi Yossi, who maintains that G-d judges the world every day (in which case our prayers today can effect a change in yesterday's Divine decisions). But according to the Rabbanan, who hold that the world is judged once a year, we have no right to interfere with G-d's decision, even to Daven for a sick person (see Tosfos there). How much more so, it would seem, may one not visit a doctor.

The questions posed by the Mateh Moshe on Rabeinu Bachye however, are equally applicable to this Gemara. Perhaps the Gemara is referring to illnesses that a doctor is unable to cure, and which G-d clearly, does not want cured.

The Torah Temimah cites the Rambam (in a number of places) who considers healing a sick person a Mitzvah, citing as his source (not "ve'rapo yerapei", which only permits him to do so, but does not present it as a Mitzvah [see Torah Temimah 85] but) the Pasuk in Ki Seitzei, which commands us to return a lost article ("va'hasheivoso lo"). The Gemara in Sanhedrin (73a) interprets the Pasuk with regard to saving a fellow-Jew from drowning or from armed robbers (but not to returning a lost article). The Rambam however, equates the two, not surprisingly, seeing as both constitute life-danger, and can be derived with a 'Kal-va'Chomer (a logical inference) from the Mitzvah of Hashovas Aveidah.

The Rambam's comparison of healing to returning a lost article to its owner certainly clashes with the G'ro's second statement. Because if a person is permitted to search for his lost article (as is evident from the Gemara in Bava Metzi'a) where it is only his property that needs to saved, then how much more so may he visit a doctor, where it is his body that needs to seen to. Neither ought it to be any less permitted, one may add, than a person drowning in a river shouting 'Help!' (to be cont.)

" ... only the work lost he must pay, and the doctor's fees" (21:19).

It is from here that Tana de'Bei Rebbi Yishmael (Bava Kama 88a) learns that a doctor has the authority to heal.

The best doctor, says the Gemara in Kidushin (82a), goes to Gehinom. We know of course, that Chazal have nothing against doctors per se (indeed, some of our greatest sages were doctors by profession - such as Shmuel [Rav's Chaver] and the Rambam). So this statement obviously begs explanation.

R. Yosef Chayim suggests that what the Gemara means is that a dedicated doctor must be prepared to give up his Gan Eden and go to Gehinom, in order to save a sick person's life.

He explains that sometimes a doctor knows that the only way to save a patient is by performing an operation or treating him in a way that the slightest error on his part will result in his death. Aware that someone who hastens a fellow Jew's death is sent to Gehinom, he may well decide not to operate, in order to save himself from Gehinom.

That is why Chazal say that, if the only way to save his patient's life is by operating, then he must go ahead and do so, never mind his Gehinom.

In similar vein, it is said in the name of great Tzadikim that they would have gladly given up all their reward in Olam ha'Ba, in order to save just one Jewish soul.

R. Yosef Chayim enjoyed a warm relationship with Dr. Moshe Wallach, founder and head of Sha'arei Tzedek hospital, with whom, from time to time, he would share insights on this Chazal.

On one occasion, when he felt in a particularly good mood, he told him the following anecdote. 'Dr. Wallach,' he commented, 'is a dedicated and reliable doctor. He is quite capable of working for a full day without a break, should the need arise. And that is precisely why doctors like him are needed in Gehinom, since that is where he is assured of plenty of work to do. There are many residents there who are wounded or who are missing limbs! For example, someone who sinned with his eyes in this world, will be blind in Gehinom, and so it is with someone who sinned with his hands or with his legs ... , as the Sefarim discuss (not to forget the extensive first- degree burn victims who abound there).

On the other hand, what will Dr. Wallach do in Gan Eden, where everyone is healthy and where his services will not be required?'

At that time, there lived in Yerushalayim a doctor by the name of Dr. Bufeles. He was a G-d-fearing man and an expert doctor, but he was known to charge exorbitant fees for house calls. With referring to the above Chazal, here is how he justified this practice ...

'Imagine', he explained, 'that by Divine decree, someone is destined to pay two or three napoleons in order to attain a cure. Now a good (hearted) doctor, who charges a few 'kabakim' for a house-call, will inadvertently cause the illness to linger for who knows how long, until the patient has paid the full amount that was decreed on him to pay.

I, on the other hand, charge him the full amount in the course of just one or two visits, thereby alleviating his pain as quickly as possible. That is why' he concluded 'the 'good' doctors go to Gehinom, whilst I will go straight to Gan Eden'.

"Do not afflict any widow or orphan" (22:21).

R. Nachum Bergman, many years the Ba'al Musaf during the Yamim Nora'im in the Shul of Batei Machseh, died, eleven days before Rosh Hashanah. The Shiv'ah was not yet over when R. Yosef Chayim was approached by a candidate who wished to take R. Nachum's place. It is customary for a mourner not to Daven on Shabbos and Yom-Tov, and the candidate therefore assumed that that year at least, the deceased's children would not be eligible to serve in that capacity, in place of their father.

The Rav did not reply at the time. He subsequently informed the Gaba'im however, that they did not need to worry about a Ba'al-Tefilah for the Yamim Nora'im, and they assumed that the Rav himself intended to fill the post.

When, on Rosh Hashanah, after the first set of Teki'os, R. Yosef Chayim approached the deceased's son, R. Shimon (who served as the town Shochet), and ordered him to Daven Musaf, the people looked at each other in amazement.

R. Yosef Chayim later explained his motives. The reason that an Oveil does not Daven as Sheli'ach Tzibur, he explained, is due to Kavod Tzibur. One has but to imagine the poor widow standing in Shul less than a month after her husband's death, haunted by the memory of her beloved husband singing 'Hineni he'oni mi'ma'as' (the introductory words of the Ba'al Tefilah at Musaf). If she were to have heard a total stranger singing those same words in place of her husband, her heart would have burst with anguish. The Tzibur would have been guilty of causing an almanah pain - an Isur d'Oraysa. Surely, he concluded, the Tzibur would have wanted nothing more than to console an unfortunate widow by letting her son, whose voice was as pleasant as that of his father, take his place and give his mother nachas. Surely there is no better case of Kavod Tzibur than calming the heart of a widow and making her feel good!

R. Yosef Chayim was the president of Beis Yesomim Diskind, and nothing of importance was done without consulting him first. It happened once that they had to sack a Melamed who they discovered, was unfit for the job.

A delegation of 'good-hearted' men was sent to R. Yosef Chayim to plead on behalf of the melamed, who had a large family to feed, and who would be left without a job.

The Rav looked at them with pity, and replied 'Is that a reason to feed him Yesomim?'

"If you lend My people money, the poor man with you ... " (22:24).

The Gemara in Bava Metzi'a rules that someone who lends a fellow-Jew money without witnesses (or a document) has transgressed the La'av of "Lifnei Iver lo siten michshol" (as he encourages him to deny the loan when the time to repay it arrives).

Ha'Rav Shlomoh Sabal asks whether Reuven is exempt from lending Shimon money, assuming that there are no witnesses available to witness the transaction and (for some reason) it is also not possible to write a document.

R. Yosef Chayim answers simply in the affirmative. And he supports this with a hint from the above Pasuk, which he translates as "If you lend money when My people are present", a hint that one should only lend a Jew money in the presence of other Jews. "The poor" the Pasuk continues, (with reference to giving Tzedakah) "with you", should be given when you are alone, in order not to embarrass the poor man, as the Pasuk writes in Mishlei "A gift in secret negates anger".

It happened once in the year 5640, that the Av Beis-Din of Brisk had to travel overseas. The Gaon of Brisk, the Maharil Diskind turned to R. Yosef Chayim Sonnenfeld, and asked him to stand in for the Av Beis-Din until his return. R. Yosef Chayim, then a young man in his thirties, who was still anxious to hide his greatness from the public eye, initially declined. But eventually, he could no longer refuse his Rebbe, and so he reluctantly agreed, but on two conditions; one, that as soon as somebody suitable was found to replace him, he would be allowed to stand down, and two, that he would receive no remuneration whatsoever, in any form or fashion.

And it was during the three-month period that he served as Av Beis-Din that the following episode took place.

A complicated case came before the Beis-Din concerning a bitter dispute between a husband and wife. The Beis-Din it seems, ruled in favor of the husband, and the wife's family, which boasted a number of strong-willed individuals, who felt that their honor had been impunged, could not come to terms with the ruling. A number of them burst into R. Yosef Chayim's apartment, and began to hurl insults at him. It was the week before Rosh Hashanah, and the Rebbetzen, who was in an adjoining room, was shocked at their outburst. Precisely because it was so close to the Days of Awe, the words pierced her heart, and she burst into tears.

Meanwhile, R. Yosef Chayim sat tranquilly beside his open Seifer and continued to learn as if he had heard nothing. All of a sudden, when their screams had turned into a crescendo, he stood up to his full height, and turned to them. With a voice full of authority, he said sternly 'Now listen to what I have to say'.

His assailants fell silent, and the Rav continued - 'If you are right and your complaints are justified, and I and my Beis-Din erred in our assessment, you have already handed your judgement to Hashem, and He will atone for us, for a judge can judge only by what he sees. But', and here he raised his voice, 'if the judgement that we issued was correct, then I want you to know (and after a slight pause, he repeated the words), 'I want you to know' - at this point, the mechutzafim's faces turned white at the angry tone of the Rav's words and they began to tremble in anticipation of his sharp response - 'I want you to know' he continued, 'that if our decision was the right one, then I forgive you completely with all my heart, for all the pain that you caused me and my family. And I bless you that you should be written and sealed for a year of good life and peace'.

Confused and ashamed, they turned tail and beat a hasty retreat, before the neighbours could witness their disgrace. R. Yisrael Ya'akov Bornstein, who lived in the neighbourhood, hearing the raised voices, had come running to R. Chayim's apartment to see what was going on. Having witnessed the 'dialogue' between the two parties, he asked the Rav why he found it necessary to inform the 'mechutzafim' that he had forgiven them (he had no problem with the fact that he forgave them in his heart, for that is the way of Tzadikim). Would it not have been better, he suggested, to let them suffer in their hearts, once they realized what they had done, and then to come on their own volition to ask for mechilah, as the Din requires?

'Not at all', the Rav replied. 'I'll tell you what would have happened had I done that. The Days of Awe are just round the corner. Without doubt, come Erev Yom Kipur, they would have made a personal reckoning, arriving at the conclusion that they were guilty of causing me and my family untold anguish. And they would have decided to ask me for mechilah (as you correctly presumed). But it's not so easy to humiliate oneself in this way. Be rest assured that, in order to avoid having to do so, the Yeitzer ha'Ra would have come along and convinced them that they were right after all, and that they only gave me what I duly deserve. What would I have then gained by my silence? So I figured that it was wiser for me to forgive them immediately - verbally, making it relatively easy for them to react to that during the ensuing period, by doing Teshuvah and admitting that they were wrong, obtaining an immediate pardon from Hashem, without having to come back to me for forgiveness.

On Erev Yom Kipur, on his way back from the Kosel ha'Ma'aravi, whom should R, Yosef Chayim meet but the leader of those who had broken into his home three weeks earlier, who came up to him and asked him for Mechilah. Needles to say, he forgave him with all his heart. Before parting, R. Yosef Chayim asked him whether he had already purchased his Esrog.

'I certainly have', replied the man with a touch of pride. 'Why, such a perfect Esrog as I managed to obtain this year, I have never possessed before. It's absolutely flawless - a 'P'ri Eitz hadar' just as the Torah writes. True, I paid a fortune for it, half a napoleon to boot, but for such a beautiful Esrog, it was well worth it.'

R. Yosef Chayim looked at him and said gently 'Reflect what you just said. In order to fulfill a Mitzvas Asei (such as that of Esrog) one is obligated to spend up to a fifth of one's entire fortune. On the other hand, to avoid transgressing a Lo Sa'aseh, one must be willing to give up all that one owns.

Now let us examine the Lo Sa'aseh of 'Elohim lo sekalel" (not to curse a judge). How does it speak? If the litigant reckons that the judge is right, then it is obviously wrong to curse him, for what he then deserves is a blessing. Clearly then, the Pasuk is talking about where the litigant believes that he is right and the judge is wrong. Yet the Torah expressly forbids cursing a judge even under those circumstances. Now, compare the two cases and draw your own conclusions.'