CCAR RESPONSA

Physicians and Indigent Patients

5754.18

She'elah

Many of the Jews from the former Soviet Union who have settled in our community are now dependent upon government assistance for their health care. Frequently when they call physicians in the community to secure appointments, they are told that these physicians do not see patients who are without private insurance coverage. While our local Jewish Family Service has had some success in making individual appeals to physicians active in our congregations to provide care for these newcomers, a broader question remains. Under our tradition, may a Jewish physician refuse to treat a patient because he or she lacks medical coverage? (Rabbi Melanie Aron, Los Gatos, CA)

Teshuvah

This question addresses the situation in the United States, where as of this writing health care is largely a private matter rather than a right guaranteed by the community to all citizens or residents. Yet it also has application in countries where health care is state-sponsored and where physicians and other medical professionals have been known to go on strike against what they regard as inadequate funding, poor compensation, and the like. In both cases, the issue is essentially the same: may physicians refuse for economic reasons to provide medical service?

The Mitzvah of Medical Practice.

We begin our discussion by noting that Jewish tradition regards the practice of medicine as a mitzvah, a religious obligation which imposes duties upon doctor and patient alike.

This attitude was not unanimous; a number of texts express a highly negative stance toward medicine, physicians, and those who resort to them. This critical viewpoint proceeds from the doctrine that God is the Source of both illness and healing.1 If disease is understood as a sign of God's displeasure, as punishment for our misdeeds, it follows that the correct response to it is prayer and repentance. When one turns instead to the practitioners of the medical arts, one betrays both a desire to frustrate the divine decree and a fundamental lack of trust in God. Thus, King Asa of Judah is criticized in that "in his sickness he sought not God but rather physicians,"2 while King Hezekiah wins praise for hiding away a medical book so that people would learn to pray for healing rather than seek medical help.3 The Talmud declares that one who does engage the services of a medical practitioner should pray: "May it be Your will...that this procedure restore my health...You are a faithful and healing God, whose healing is true. As for human beings, they have no power to heal; rather, it has become a habit with them." The implication, says Rashi, is that human beings "should never have become involved with medicine; instead, they should have learned to seek God's mercy."4 This way of thinking finds its classic expression in the commentary of Nachmanides (Ramban) to Leviticus 26:11. He writes that the blessings promised in that chapter as a reward for our obedience to God are all miracles, suspensions of the natural order of the world. This teaches that when Israel is at one with God, it is exempted from the normal workings of nature and merits special providence. Medicine is irrelevant to the community of the righteous, for whom disease is a matter not of the body but of the spirit. Cures are effected by repentance and prayer, for God "will bless your food and your water and remove all disease from your midst" (Ex. 23:25).5 Had Israel maintained its trust in God, it never would have needed physicians and medicine; since, however, "it has become a habit with them," the Torah grudgingly permits the physician to practice his art.6 Yet this "habit" continues to separate us from God; were we to walk in God's ways, we should have nothing to do with physicians.

Despite these opinions, the tradition developed a positive and affirming conception of medicine. This fact is most obvious in the large number of rabbinic scholars who were also physicians, as well as in the significant medical literature produced by rabbinic writers, most notably Maimonides.7 The Talmud tells us that "one who is in pain should go to the physician" and forbids a scholar from residing in a town that lacks a doctor.8 The apparently negative statements on medicine receive different explanations.9 Nachmanides himself argues that the "permit" to practice medicine is in fact a mitzvah, falling under the rubric of pikuach nefesh, the saving of life.10 The saving of life overrides the prohibitions connected with Shabbat and Yom Kippur,11 and Ramban notes that we often set aside these prohibitions on the strength of a doctor's diagnosis.12 Maimonides, meanwhile, derives the commandment to practice medicine from Deut 22:2, the obligation to restore lost objects which, say the rabbis, extends to the saving of life.13 Whatever its Scriptural basis, the Tur and the Shulchan Arukh formulate the obligation to practice medicine as halakhah:14 the patient is required to resort to the physician, and the physician is required to heal. Whoever delays or refrains from meeting this obligation is considered as having shed blood.

From this, it would follow that a Jewish physician is not entitled to refuse treatment to a patient for financial reasons. A religious obligation does not cease being a religious obligation on account of its expense. And since the practice of medicine is an enterprise of pikuach nefesh, a duty which outweighs virtually all others, we would conclude that the physician must surely provide life-sustaining treatment to patients regardless of their ability to pay. Indeed, are we not taught that the physician who refuses to treat the indigent is deserving of everlasting punishment?15 While doctors may press their reasonable financial demands, therefore, they cannot shirk the duty imposed upon them by the Torah.16

The Physician and Economic Freedom.

The matter, however, is not so simple. Like all human beings, the physician is possessed of an essential dignity which the community cannot ignore. Fundamental to this dignity is what we moderns might term economic freedom. The traditional basis for this principle is the verse (Lev. 25:55): "for the people of Israel are My servants," to which the rabbis add: "and not the servants of servants."17 The free man or woman ought not to be a slave to the economic demands of others.18 From this, we learn that the worker is entitled to quit his or her job, even after beginning it.19 We read too that workers, whether laborers, professionals, or the owners of businesses, may organize and adopt trade policies that determine the prices they charge the public.20 This "right to strike" does not include the right to inflict damages upon the employer. A worker dealing with perishable goods, for example, may not quit before completing the job.21 We might argue on this basis that a physician, who has charge of the most perishable of "goods," may not refuse to treat a patient. This limitation, however, seems to apply only to a worker who has already begun the job. Should a doctor refuse to begin treatment in the absence of assured compensation, this law would not force him or her to provide it.

Yet surely, we might respond, the physician is not like other laborers. The physician performs a mitzvah, and one can hardly go on strike against a commandment. Moreover, the physician's mitsvah is that of pikuach nefesh, a duty which must be performed whenever the opportunity presents itself. As Maimonides writes, "whoever is able to save a life but does not save it violates the commandment: `do not stand idly by the blood of your neighbor' (Lev. 19:16)."22 Thus, once an individual seeks the services of a physician, the physician is obliged to treat that person. He or she may not turn away indigent patients on the grounds that other physicians can treat them, for perhaps the treatment offered by others will not succeed. As the rabbis remind us, it just may be the destiny of this indigent patient to be healed by this doctor.23 Thus, we could argue, the physician does not have the same right enjoyed by other workers to withhold his or her services. The saving of life must take precedence over the physician's economic freedom.

Still, the duty to save life does not necessarily fall upon the physician as an individual. The commandment of pikuach nefesh is addressed to all of us, not just to a particular class of persons; the physician has no greater obligation than does anyone else to save life. This is a key element in the Jewish legal theory which permits physicians to be paid for their work:24 when a positive commandment is incumbent upon all members of the community, no one person can be required to perform it for free.25 Physicians are entitled to reasonable compensation because, though they render a service that only trained professionals are allowed to administer,26 they are the agents of the community. The mitzvah they perform is our mitzvah, not just theirs. Like others who provide vital public services, they are the means by which each of us fulfills the individual responsibility to save life. Thus, if it costs money to perform the mitsvah, that expense ought to be borne by the community, by all of us together, and not by doctors alone.27 It is arguably unfair to require that physicians treat indigent patients without adequate compensation.

Conclusion. The case before us therefore is a complex one, in moral as well as halakhic terms. It involves a conflict between two traditional values--the mitzvah of medical care and the economic freedom of the individual--which resonate with us as liberal Jews. It follows that any proper solution will also be complex, its specific details determined by the circumstances of the community in which it is adopted. Still, our understanding of Torah and moral imperative from within the context of Reform tradition convinces us that such a solution ought to incorporate four fundamental principles.

1. Every member of the community enjoys a right to adequate medical care. As we read the tradition, this demand is paramount. Medicine is a mitzvah, the duty of pikuach nefesh which we owe to all whose lives are in danger. To deny medical treatment to human beings because they cannot afford to pay for it is repugnant to any decent conception of what Torah requires of us. One may debate, legitimately, both the precise definition of "adequate medical care" and the means by which it is delivered. That it must be delivered, however, cannot be doubted, as the CCAR has repeatedly made clear.28 Our primary moral task is not to decide whether the poor shall receive treatment; it is rather to determine the fairest and most efficient way of getting it to them.

2. The ultimate responsibility for providing medical care to the indigent rests upon society as a whole.29 Tradition teaches us that, inasmuch as each of us is commanded to save life, each of us shoulders equally the burden which this duty imposes.30 And our Reform tradition holds that justice is a social matter. Our commitment to social justice and social action requires the conclusion that no just society can fail to meet this duty.

3. In the present case, we Jews have a special responsibility above and beyond our obligations as members of the wider community. For many years, we struggled to liberate the oppressed Jews of the former Soviet Union. We organized and lobbied to secure their right to emigrate to lands which would allow them to live as Jews in peace and freedom. We did this in fulfillment of the mitzvah of pidyon shevuyim, the redemption of captives, a duty which in our tradition takes precedence over all other forms of tzedakah.31 Thus, although the obligation to aid the poor rests upon the entire community, we have an added measure of obligation toward these, our brothers and sisters. It would be a moral failure if, having exerted great efforts to bring them out of bondage, we were to ignore their pressing human needs once they arrive in our midst. Our ethical responsibility is not discharged until we have helped them secure housing, employment, medical care, and the other tools necessary to build lives of independence and dignity. This implies, we think, that Jewish physicians have a special and vital contribution to make.

4. Even though the provision of medical care is the responsibility of society as a whole, physicians cannot on this ground shirk the moral responsibility to render medical care to those who call upon their services. When a person seeks medical care from a physician, the physician is bound under the rubric of pikuach nefesh to provide it, either personally or by making arrangements for the patient to see another doctor. We are not unmindful of the just monetary demands of medical professionals. Physicians are entitled to seek compensation from the community for their services; in the event that community assistance is insufficient to meet the need, they may make other financial arrangements as they see fit. Yet we cannot help but note that physicians, even when they treat the indigent for free, still earn incomes which compare quite favorably to those of police officers, fire fighters, educators, and all others who devote their professional lives to the performance of mitzvot. We conclude that the health and lives of the poor must in principle take precedence over the economic requirements of the physicians.

We do not pretend to have the "right" solution to the intricately complex problem of health-care access in the United States. Again, we presume that the particular arrangements for providing medical care to the indigent will vary from place to place. As we see it, however, one truth is and must remain constant: under no circumstances may physicians, Jewish or otherwise, simply refuse to provide that care on the grounds that the patients lack insurance. Jewish tradition and moral decency demand no less.

Notes

  1. Exo. 15:26. See BT Sanhedrin 101a for a hint that sickness and health depend largely upon faithfulness to God's commandments and not upon medicine.
  2. II Chr. 16:12.
  3. This rabbinic tradition, recounted in BT Berakhot 10b and BT. Pesachim 56a, is derived aggadically from Isaiah 38:3. See Rashi to the Berakhot passage, s.v. she-ganaz sefer refu'ot.
  4. BT. Berakhot 60a and Rashi, s.v. she'ein darkan shel benei adam. See also Rashi's explanation of the statement in the Mishnah (M. Kiddushin 4:14): "the best physician is deserving of hell." One of the reasons for this condemnation, he writes, is that the physician arrogantly regards himself, rather than God, as the healer (BT Kiddushin 82a, s.v. tov she-barof'im). See also notes 9 and 15, below.
  5. Ramban also cites Exo. 15:26 in this regard; see at note 1.
  6. BT. Baba Kamma 85a, from Exo. 21:19. This, says Ramban, is not a grant of permission to the patient, who in any event ought not to resort to medicine. As he has chosen the "habit" of medicine, however, separating himself from "the congregation of God," the physician may treat him without incurring divine punishment.
  7. R. Natan Zvi Friedman, Otzar Ha-Rabbanim, Tel Aviv, 1975, identifies about 80 significant rabbinic personalities as physicians.
  8. BT. Baba Kama 46b and Sanhedrin 17b.
  9. Thus, King Asa's sin is not that he consulted physicians but rather that he placed his reliance totally upon them, forgetting that the physician is God's agent in the healing of disease. See Bayit Hadash to Tur, YD 336 and Metsudat David to II Chr. 16:12. Maimonides, Commentary to M. Pesachim 4:9, interprets the case of King Hezekiah so as to avoid its anti-medical implications, and he sharply rejects the suggestion that reliance upon medicine is evidence of a lack of trust in God. As for "the best physician is deserving of hell" (see note 4), R. Shmuel Edels explains that this refers to the arrogant physician who, thinking he is the best, injures or even kills his patient out of a refusal to consult other doctors (Maharsha, BT. Kiddushin 82a). See also Sirach 38:1-8 on the physician and the pharmacist as the instruments of God's healing.
  10. Nachmanides, Torat Ha-Adam, ed. H.D. Chavel, Jerusalem, 1964, pp. 41-42. Rabbis through the ages have sought to resolve this position with that of Ramban on Lev. 26:11. Their general approach is to declare that, while in an ideal past we were able to rely upon spiritual healing, we no longer merit that status. On the contrary: today we are forbidden to abandon the workings of the natural world and to rely instead upon miracles. See Turey Zahav, SA, YD 336, # 1, and R. Chaim Y.D. Azulai, Birkei Yosef, YD 336, n. 2. See also R. Yitschak Arama, Akedat Yitschak, Vayishlach, who rather than resolving the contradiction rejects Ramban's position in Leviticus on the basis of Biblical evidence.
  11. BT. Yoma 85b, from Lev. 18:5.
  12. Ramban cites M. Yoma 8:5-6. The physician's role in deciding when the laws of Shabbat and Yom Kippur must be set aside is discussed in SA, OC 328 and 618.
  13. BT. Sanhedrin 73a; Rambam, Commentary to M. Nedarim 4:4.
  14. Tur and SA, YD 336:1.
  15. Rashi to M. Kiddushin 4:14 (82a).
  16. See R. Meir Steinberg, Assya, vol. 3, 1983, pp. 341-342, who forbids physicians' strikes on this basis.
  17. BT. Baba Kamma 116b.
  18. Commenting upon Exodus 21:6, Rabban Yochanan ben Zakai condemns the Hebrew slave who chooses continued slavery over the freedom to serve his true Master; BT Kiddushin 22b.
  19. Yad, Hilkhot Sekhirut 9:4; SA, CM 333:3.
  20. BT. Baba Batra 8b; Yad, Hilkhot Mekhirah 14:9; SA, CM 231:27-28.
  21. SA, CM 333:5.
  22. Yad, Hilkhot Rotseah 1:14, from BT. Sanh. 73a.
  23. YT Nedarim 4:2; SA, YD 336:1.
  24. Can one be paid for performing a mitzvah? Not precisely, say the rabbis; but one may be compensated for the expense incurred in doing that mitsvah as well as for the time which one might otherwise have spent in gainful employment. See SA, YD 336:2.
  25. Ramban, Torat Ha-Adam, p. 45; Isserles, SA, YD 336:3.
  26. SA, YD 336:1.
  27. See R. Eliezer Waldenberg, Resp. Tzitz Eliezer, v. 5, Ramat Rachel, ch. 24, # 6. On this reasoning, R. Shelomo Goren permits doctors to strike. So long as they provide medical treatment at a reasonable cost, the responsibility for meeting that cost rests upon the government. See Sefer Assya, v. 5, 1986, pp. 41-54.
  28. See the resolution in support of a national health care system that would provide comprehensive medical benefits to all residents of the United States; "National Health Care," CCAR Yearbook, v. ci, 1991, pp. 32-34.
  29. See M. Sotah 9:6 on Deut. 21:7.
  30. As is the case with tsedakah, an "equal share" will differ depending upon an individual's financial means; see SA, YD 248:1. The point is that we must all contribute and not leave the responsibility with the physicians alone.
  31. BT. Baba Batra 8a-b; Yad, Hilkhot Matanot Aniyim 8:10. And see our responsum 5753.5.

If needed, please consult Abbreviations used in CCAR Responsa.