| Self-endangerment to save others
Daniel Eisenberg, MD
April 25, 2003 TORONTO (Reuters) - Exhausted health workers on the front line of Toronto's battle against SARS must also cope with the frightening knowledge that they are most at risk, and there is no fail-proof way to protect them. . .
June 27, 2003 Bankok (Reuters) - The World Health Organization said Friday the world should be free of the deadly SARS virus within the next two to three weeks, but warned the disease could emerge in China again next winter. . .
Physicians have been treating contagious diseases for millennia. As a result, the death toll in the medical profession has been high in times of epidemic. What does the Torah teach us about the obligation of the physician to treat weighed against the prohibition of endangering one’s life?
This question has become particularly timely with the spread of severe acute respiratory syndrome (SARS) from China to multiple countries around the world, with the city of Toronto continuing to be among the worst affected. There has been worldwide panic, with planes detained, medical meetings cancelled, and embassies reduced to skeleton crews. Even the physician who first recognized SARS died of it.
But we must separate the true risk from the hysteria. While as of the last World Health Organization update, SARS has killed an estimated 800 people and sickened more than 8400, with the number growing each day, influenza kills between 250,000 and 500,000 people each year around the world. Even in the United States, with a vaccine and modern medical care widely available, flu kills at least 36,000 people a year. The "Spanish flu" pandemic of 1918 killed between 40 million and 50 million worldwide, most of them young, healthy adults. The "Asian flu" and "Hong Kong flu" pandemics of 1956-1957 and 1967-1968 killed a combined 4.5 million people. It remains to be seen whether the recent decline in SARS cases heralds an end to the disease or whether it will go on to be a deadly worldwide epidemic.
The AIDS epidemic
Nevertheless, it is not common conduct for physicians to refuse to treat flu patients for fear of there becoming infected themselves. It is more common for paranoia and raw emotion to drive calls for patient quarantines and refusals of healthcare workers to treat infected patients. HIV is the most recent example of such behavior, where some healthcare workers refused to treat “AIDS” patients, despite the fact that the risk of becoming infected by casual contact was nonexistent. The Centers for Disease Control reported in 2001 that they were “aware of 57 health care workers in the United States who have been documented as having a seroconverted to HIV following occupational exposures.” There were “137 other cases of HIV infection or AIDS among health care workers who have not reported other risk factors for HIV infection” and reported occupational exposures, but did not have documented seroconversion after exposure. Overall, the total is still a very small number considering the prevalence of the disease, the frequency of needle sticks and other occupational exposures, and the almost 25 years that HIV has been recognized.
Nevertheless, early in the AIDS epidemic, before the mode of HIV transmission was clear, self-endangerment was a legitimate concern for healthcare workers treating AIDS patients. Why have physicians traditionally been willing to treat patients with communicable diseases and to what extent may they risk their own lives to treat their patients?
The basis of the physician’s dedication to his patient should be the responsibility that the Torah places on the physician to heal. As we established in a previous article, there is a divine mandate to heal patients that is derived from a variety of Torah passages (see Mandate to Heal). Barring mitigating circumstances, the physician, like anyone else in a position to save an endangered neighbor, must treat the sick. Therefore, we must ask how far the obligation extends. Does the physician have to endanger his own life to treat a patient with a dangerous contagious disease?
In such a case, the healthcare worker is caught between a rock and a hard place. While mandated to heal, the Torah also commands him to zealously guard his own health. The doctor must ask himself the question: may I expose myself to a questionable danger to save someone else from a definite danger? The answer to that question is the subject of dispute.
The obligation to save a life
The Babylonian Talmud derives the fundamental requirement to save another person from danger directly from the Torah. The Talmud.1 explains “From where do we know that if one sees his friend drowning in a river, or if he sees a wild animal attacking him, or bandits coming to attack him, that he is obligated to save [his friend]? The Torah.2 teaches: “do not stand over your neighbor’s blood (but rather save him).” According to Maimonides,3 this translates into a positive obligation to use your time, money and even your body to save your fellow.
Rabbi Joseph Karo was the author of the Beis Yosef, an exhaustive and lengthy commentary on an earlier compilation of Jewish law, entitled the Arba Turim. In the last passages of his monumental Beis Yosef,4 Rabbi Karo discusses the Biblical obligation to save one’s neighbor from harm. He then adds the crucial concept that according to the Jerusalem Talmud,5 the potential rescuer “is obligated to even enter himself into a questionable danger (safek sakana) to save his fellow. And the reason appears to be because the danger to his fellow is definite, but the danger to the rescuer is questionable.”
Interestingly, Rabbi Karo does not include this ruling in the Code of Jewish Law (Shulchan Aruch). Two possible reasons are proposed for this fascinating omission. Rabbi Karo establishes in the introduction to the Shulchan Aruch that he rules according to the majority opinion of three major authoritative Rabbis- Maimonides (Rambam), Rabbi Yitzchak Alfasi (Rif), and Rabbeinu Asher (Rosh). Since none of these noted Jewish legal experts mention the ruling of the Jerusalem Talmud, it is reasonable that Rabbi Karo did not codify it in the Shulchan Aruch.6 Alternatively, neither Rabbi Karo nor Rabbi Isserles (author of glosses on the Shulchan Aruch) include the ruling because the Babylonian Talmud,7 generally considered more authoritative than the Jerusalem Talmud, renders a contrary ruling.8
Must I risk my life to save another?
Among the earliest responsa on the topic of risking life to save others were those of Rabbi David ben Solomon ibn Avi Zimra, known as the Radbaz. He lived along with Rabbi Karo in Safed in the 16th century. The Radbaz9 was asked a chilling question. What should one do if a government officer tells a Jew: “Let me cut off one of your limbs in a way that you will not die, or I will kill your friend!” While he entertains the argument that one might be obligated to lose one’s limb, he calls such logic “midas chasidus,” that is, extraordinary selflessness. After bringing several proofs, he goes on to say that if there were even a questionable risk of death (safek sakana), then one who agrees to lose his limb would be a pious fool (chasid shoteh).
In a second responsa,10 the Radbaz further fleshes out the issues involved in entering danger to save others. He was asked about a technicality in Maimonides’ ruling that “anyone who can save his fellow and does not save him has transgressed the commandment: “do not stand over your neighbor’s blood (but rather save him).” The Radbaz explains that Maimonides’ ruling applies when the rescuer undergoes no danger to himself whatsoever, such as warning a person asleep beneath a shaky wall to get up or to share life-saving information with someone else. He then adds that:
“not only this (saving a life when it entails no risk to the rescuer), but [he must save his friend] even if there is a small possibility of danger (safek sakana). For example, if he sees his friend drowning in the sea or bandits coming to assault him or [sees him] being attacked by a wild animal- all of which entail a possibility of danger- nevertheless, he still must rescue [his friend] . . . But to save the life of your neighbor . . . even in a place that there is a questionable danger, there is an obligation to save, and this is [found] within the Jerusalem Talmud. However, if the questionable danger approaches certainty, one is not obligated to take the risk to himself of saving his friend. And even if there is [only] an even danger, one is not obligated to risk himself because who says that his blood is more valuable, perhaps your blood is more valuable. But, if the [degree of] questionable [risk] is not significant, rather rescue seems likely and without [significant] risk to the rescuer, and he does not [attempt to] rescue, he has transgressed [the prohibition of] ‘do not stand over your neighbor’s blood.’”
These apparently contradictory rulings of the Radbaz are reconciled by Rabbi Ovadia Yosef,11 former Sefardi Chief Rabbi of Israel, by explaining that the Radbaz’s first responsa, where he says that one who risks himself to save another is a pious fool refers to when the odds of danger to the rescuer are 50% or greater. When the odds are lower, the second responsa applies.
The balancing act
Rabbi Abraham Tzvi Hirsch Eisenstadt, the author of the famous commentary to the Shulchan Aruch entitled Pischei Teshuva,12 explains that the would-be rescuer must carefully evaluate the situation to ascertain whether he will truly be putting himself into danger if he attempts rescue. He warns that the potential rescuer should not be overly cautious with his own health. A similar ruling appears in the Talmud13 and with respect to return of lost objects is recorded by the Shulchan Aruch14 itself.
The Shulchan Aruch deals with this issue in another place as well. In discussing the primacy of saving life over guarding the Sabbath, Rabbi Karo15 rules that it is a mitzvah to transgress the Sabbath in order to save people from a sinking ship, from a flood, or to rescue one being pursued by assailants. Our question again arises: how much risk must I take in attempting to save another? Rabbi Yisroel Meyer Kagan (known as the Chofetz Chaim), in his seminal commentary to the Shulchan Aruch entitled Mishnah Brurah,16 rules that one is not obligated to risk one’s own life to save others if there is definite danger (sakana) to the rescuer. He writes that even a question of danger (safek sakana) to the rescuer outweighs the definite danger to the endangered party. However, concurring with the ruling of Rabbi Eisenstadt (Pischei Teshuva), he rules that if there is only a question of danger (safek sakana), the would-be rescuer should evaluate the situation to make a judgement about the actual risk involved in saving the endangered party and not be too overly cautious with the risk to his own life.
It is possible that there is an intrinsic distinction between safek sakana (questionable risk) and actual sakana (danger). An actual sakana may represent a known threat to life, such as certain diseases or dangerous situations. A safek sakana may mean that there is merely a possibility that there is a danger to life (versus a known extent danger which is considered a true sakana). In the case of the sinking ship mentioned above, a definite risk (sakana) may be sharks in the water, while a questionable risk (safek sakana) may be the possibility that there are sharks in the water. In such a case, one should honestly evaluate the probability of sharks in the water and choose to attempt rescue (if he can swim) if the probability of sharks is small. While the exhortation of Rabbi Eisenstadt may seem unnecessary, one may always finds an excuse to withhold treatment based on far-fetched risk.
The practical implication of these rulings is that a physician must be intellectually honest in every case of treating a patient with a communicable disease. If the risk to the physician is very great, then he is foolish to risk his life. On the other hand, if the risk to himself is very small, then he has no justification to refuse treating the very sick patient. The risk to the endangered person and the risk to oneself must be weighed. If one wishes to “save” someone who is in minimal danger, then he is permitted to take virtually no risk himself. On the other hand, if a boat with passengers who cannot swim is sinking and one is a qualified lifeguard, then one is required to take the very small risk inherent in saving the drowning victims.
Obviously, when calculating the risk to the physician, we assume that the physician will be taking all reasonable precautions in treating the sick patient. In the case of AIDS, where we now know that the risk to the treating physician is minimal, particularly when no invasive procedure is performed, there is little basis for refusing to treat. The obligation to treat when there is a very small danger is based on the concept of shomer pasaim Hashem,17 that G-d watches over the simple in their activities of daily life (see risk in halacha). One must not allow prejudice and paranoia to influence this issue. The physician must evaluate whether the risk of treating the contagious patient exceeds the level of risk that he is usually and habitually willing to take.
Thus, until the healthcare professional can be assured that there is a relatively safe way to treat patients with SARS, there is a justification to refuse to treat the patient. There are precedents for such a position. For example, an actual case18 came before a prominent Israeli posek. Rabbi Yitzchak Zilberstein was asked whether a physician in her first trimester of pregnancy is obligated to treat a patient with rubella (German measles). Contact with the patient posed a 50% risk of physician developing the disease with an associated high risk of birth defects, miscarriage, or stillbirth. Rabbi Zilberstein ruled that the possibility of miscarriage represented a potential threat to the physician’s life and she was therefore not obligated to treat the patient.
A similar questions arises in retrospect with respect to the September 11, 2001 attacks on the World Trade Center. Hundreds of police and firefighters lost their lives attempting to rescue the people trapped in the towers. Due to the extraordinary circumstances, they probably did not recognize the tremendous risk in which they were placing themselves when they entered the buildings. Had they known that there was a high likelihood that the towers might collapse, Jewish law would almost certainly have barred them from entering. As we will discuss below, this is true despite the increased latitude that fire-fighters are granted by Jewish law to risk their lives, due to the intrinsically dangerous nature of their life-saving work.
The issue of whether one may donate a kidney is dealt with in a similar way, with opinions ranging from calling the action a midas chasidus (extraordinarily selfless) to calling the donor a chasid shoteh (a pious fool). Most halachic authorities take the former position, because the risk to the donor is considered small.19 Nevertheless, one is definitely not required to donate an organ even to save the life of someone else, a procedure that has a small risk of death from anesthesia, the surgery itself, and the risks associated with having only one kidney. Of interest, Rabbi Yosef Shalom Eliashuv, arguably the greatest living posek in Israel, rules that one must undergo pain and suffering to save the life of someone else.20
The special case of epidemics
The question of entering a dangerous situation is dealt with at length in the Talmud and commentaries.21 The Talmud explains that when one enters a situation of danger, Hashem examines his deeds to see if he deserves to be saved from harm. For this reason, one should not enter into a dangerous situation without a valid reason. A distinction may be drawn between pre-existing danger (swimming in shark-infested water) and danger that may develop (such as the risk of driving a car). For example, there is a concept that someone who is on a mission to do a mitzvah, will not be harmed,22 however this may not be the case if the danger is preexisting.23
One leniency permitting entering a dangerous situation is to earn a livelihood (see risk in halacha). Another leniency is the permission granted by the Torah to undergo risk for communal benefit. The Talmud24 states that “ if there is a plague in the city, remain there (i.e. do not flee to another city). Rabbi Shlomo Luria, the author of the commentary Yam Shel Shlomo,25 a 16th century commentary on the Talmud, notes that
“from here, there are those who wish to learn that during a plague it is forbidden to flee [the city] . . . However, I found it written26 in the name of great poskim that it is permitted [to leave] . . . But nevertheless, if it is within his power to save others either physically or with money, heaven forbid that he should refrain from doing so and remove himself from the suffering of the people. [But,] if heaven forbid there is no difference (i.e. he cannot help the others), then we act according to what was written [in Tractate Shabbos 55A] that a person should not remain in the place of danger. And we see great people that went and fled to another place [in time of plague]. . . Regarding the gemara which states that one should remain in his place [during a plague], this is after the plague has begun and has already become strong (perhaps he has already been infected and his traveling to another place would neither help him nor help others, because he may spread the disease to another place). However, early [in the outbreak], it is wise to escape . . . therefore, it appears that if a plague has infected a city one is obligated to flee if he has the ability. This does not apply to people who previously contracted the disease and recovered, for the world recognizes that there is no fear of recurrence.”
This line of reasoning would imply that in the case of an epidemic, one may (and possibly should) risk his life to treat the community. One source27 even states that one may choose to sacrifice himself to save others. Nevertheless, it is almost unanimous that one is not required to do so.
The rationale behind the possible obligation to risk one’s life for the community in time of epidemic must be understood in light of our understanding of the Babylonian Talmud’s assertion that one is not required to enter a questionable danger to save someone else from a definite danger. In that case, there is only one endangered person and one rescuer. In such a case we might ask why the endangered person’s life is more valuable than the rescuer. But in the case of epidemic, where there are many endangered people, and the risk of many more becoming sick, even the Babylonian Talmud might concur that one may risk his life to safe the community. The parameters of such an approach are beyond this essay.
Are physicians different?
The last issue to consider is whether physicians, by virtue of their role in society, have a different responsibility to risk their lives to save others. Rabbi Eliezer Yehuda Waldenberg (known as the Tzitz Eliezer, after his multivolume halachic work) deals with this exact question. Dr. Avraham Steinberg of Shaarei Tzedek hospital in Jerusalem published a book28 compiling the medical halachic rulings of Rabbi Waldenberg in which he has a chapter entitled “On the treatment which exposes the physician to danger.” He writes:
“In principle, a person may not place himself in possibly life-threatening danger in order to save his neighbor’ s life. However, when discussing physicians, this law is somewhat modified. It is permitted for a physician to assume the risk of treating patients with any type of contagious disease. Indeed, he is credited with the fulfillment of an important religious duty. When preparing to treat a patient with a contagious disease, the physician should pray to God for special guidance and protection since he is endangering his own life. A military physician is permitted to render medical care to a wounded soldier in a combat zone although he is endangering his own life. This applies even if it is doubtful whether the wounded soldier will live, die, or be killed. Similarly, another soldier is allowed to place his own life in danger in order to rescue a wounded comrade from the combat zone.”
Rabbi Waldenberg clearly rules that physicians do have an extra obligation to heal the sick. They must recognize the danger into which they enter and pray for divine protection. This fits well with the traditional role of the physician throughout history who risked his life for the sake of his patients. It is also clear that this obligation extends to other people whose task it is to enter dangerous situations to save others, such as soldiers and probably fire fighters.
Physicians have treated the sick for millennia, often at the cost of their health or their lives. For an equally long time, Jewish law has debated the parameters by which Jewish law allows one to risk his/her life to save others. SARS only presents the most recent occasion to consider this question. While a small degree of risk need not preclude a physician from treating contagious patients (or anyone else with expertise from saving others in dangerous situations), intellectual honesty and accurate information regarding risks and benefits is required. Unfortunately, all information is not always available when the need for treatment arises. While one should not be overly cautious at the expense of the lives of others, there is limit to how much risk one may take. Physicians are expected to undergo a greater degree of risk than others, due to their training and the crucial nature of their work, but still must be prudent in protecting their lives.
1 Sanhedrin 73a
2 Leviticus 19:16
3 Mishneh Torah, Laws of Murder and Guarding Life 1:14
4 Beis Yosef, Choshen Mishpat 426
5 Jerusalem Talmud, Terumos, end of 8th chapter
6 S’ma, Shulchan Aruch, Choshen Mishpat, 426:2
7 Sanhedrin 73A and Nida 61A
8 Pischei Teshuva, Shulchan Aruch, Choshen Mishpat, 426:2. The actual ruling of the Babylonian Talmud is probably found in Sanhedrin 73a; see Maharam Shik, on the 613 mitzvos, mitzvah 238 and Aruch L’ner, Sanhedrin 73a. Alternatively, the argument may be that found in Baba Metzia 62a, regarding the disagreement between Rabbi Akiva and Ben Petura regarding whether someone must share the last of their water with someone else if it will possibly endanger the owner’s life. The Ohr Someach, Laws of Murder 7:8, points out that Maimonides’ ruling that an inadvertent murderer may not leave a city of refuge, even to save the whole Jewish nation, proves that one may not enter a questionable danger to save others from a definite danger.
9 Responsa Radbaz, Volume 3:627 (1052)
11 Nishmat Avraham, Orach Chaim, 329:6
12 Pischei Teshuva, Shulchan Aruch, Choshen Mishpat, 426:2
13 Bava Metzia 33A
14 Shulchan Aruch, Choshen Mishpat, 264:1
15 Shulchan Aruch, Orech Chaim, 329:8
16 Mishnah Brurah, 329:19
17 Psalms 116:6
18 Medicine and Jewish Law, edited by Fred Rosner, Vol. I, chapter 4 sites the case as being in Assia, vol. 11 (1986), pp. 5-11.
19 Rabbi Ovadia Yosef (Halacha U’Refuah, vol. 3, pp.61-63), Rabbi Yaakov Yosef Weiss (Minchas Yitzchak, 6:103, p.2), Rabbi Eliezer Yehuda Waldenberg (Tzitz Eliezer 10:25), Rabbi Moshe Meiselman (Halacha U’Refuah, vol. 2, pp.114-121), Rabbi Moshe Hershler (Halacha U’Refuah, vol. 2, pp.122-127).
20 Kovetz Tshuvos, Siman 124
21 This section relies heavily on the treatise by Rabbi Yaakov Weiner, “Treatment of Contagious Diseases,” available from the Jerusalem Center for Research, P. O. Box 57058, Jerusalem, Israel (http://www.j-c-r.org)
22 Pesachim 8a
23 Yuma 11a, Kiddushin 39b
24 Bava Kama 60b
25 Yam Shel Shlomo, 6:26
26 Responsa Maharil 50
27 Migdal Oz, Even Bochan, 85
28 Jewish Medical Law: A Concise Response; Compiled and Edited by Avraham Steinberg, M.D. Translated by David Simons M.D.; Beit Shammai Publications, 1989, Part 10, Chapter 11