דיני הרופא. ובו ג' סעיפים:
נתנה התורה רשות לרופא לרפאות ומצוה היא ובכלל פיקוח נפש הוא ואם מונע עצמו הרי זה שופך דמים ואפי' יש לו מי שירפאנו שלא מן הכל אדם זוכה להתרפאות ומיהו לא יתעסק ברפואה אא"כ הוא בקי ולא יהא שם גדול ממנו שאם לא כן הרי זה שופך דמים ואם ריפא שלא ברשות בית דין חייב בתשלומין אפי' אם הוא בקי ואם ריפא ברשות ב"ד וטעה והזיק פטור מדיני אדם וחייב בדיני שמים ואם המית ונודע לו ששגג גולה על ידו: The Torah has granted the physician permission to heal,1B.K. 85a derived from the words, ‘And to heal he shall heal’ (Ex. XXI, 19). and it is a religious duty2Ned. 41b, Asheri s.v. רפואת. The apparent contradictory terms ‘permission’ and ‘religious duty’ on explained as follows: True healing is the result of efficacious prayer. But not every person merits such consequences. Man, therefore, has to rely upon natural cures too, through the permission granted the medical man to administer treatment, who in turn is religiously dutibound to perform his duty — TaZ. In this sense TaZ explains the passage in Ber. 60a bot. On the question of cures in the Talmud, cf. R. A. Eger a.l.; M.K. 11a, Tosaf. s.v. כוורא; Kol Bo(G) § I, sec. which comes under the rule of saving an endangered life.3T.H., derived from Yoma 83a-b. Cf. O.Ḥ. § 328, 4. If he withholds [treatment] he is regarded as one who sheds blood;4Derived from Y.Yoma VIII, 5(45b). Cf. O.Ḥ. ibid. par. 2. and even if there is someone else who can heal him; for not from every one does one merit to be healed.5Y. Ned. IV, 2(38c). Nevertheless, on should not occupy himself with medical treatment unless he is an expert and there is none other greater than he; for if not so, he is regarded as one who sheds blood.6This follows a fortiori from all other laws and teachings of the Torah which only an expert is permitted to deal with. Cf. San. 84b; Kid. 82a, Mishna. If one administered medical treatment without the permission of the Jewish Court,7Or nowadays without a medical diploma — A.H. he is subject to payment of indemnities, even if he is an expert; and if he administered medical treatment, having the permission of the Jewish Court, and erred, causing [thereby] injury [to the patient], he is exempt by the laws of man and is held responsible by the laws of Heaven.8Tosef(Ẓ). B.K. VI, 17. This applies only if it was the result of his negligence. Otherwise, he is regarded as not having committed any sin — A.H. If he caused injury intentionally, even after having permission of the Court, he is held responsible by the laws of man — ShaK. If he caused death and it became known to him that he acted inadvertently, he is banished8Tosef(Ẓ). B.K. VI, 17. This applies only if it was the result of his negligence. Otherwise, he is regarded as not having committed any sin — A.H. If he caused injury intentionally, even after having permission of the Court, he is held responsible by the laws of man — ShaK. on account of him.9Tosef. ibid. according to version of N in T.H. Cf. W.G. a.l.
הרופא אסור ליטול שכר החכמה והלימוד אבל שכר הטורח והבטלה מותר: The physician is forbidden to take payment for his wisdom and learning10B.K. 81b; San. 73a; Sifre Deut. XXII, 2, derived from, ‘And thou shalt restore to him’ which implies that not only lost objects must be returned to their owner, but even if the person proper is lost or is sick, one is dutibound to restore the person of his fellow-man. Hence, this includes giving medical advice which may save the patient and restore his person to good health. Consequently, this must be done gratuitously. Cf. Bek. 29a, ‘Just as I teach gratuitously, so must you teach gratuitously,’ for one must not receive remuneration for the performance of a religious duty. ibid. Mishna. Advising the patient which medicine to take would refer to learning and wisdom which must be offered gratis; visiting the patient or writing a prescription would refer to trouble and lost time for which payment may be accepted — A.H. but he may receive payment for his trouble11Bek. 29a; Kid. 58a. and lost time.12Bek. ibid. a and b; B.M. 31b.
מי שיש לו סמנים וחבירו חולה וצריך להם אסור לו להעלות בדמיהם יותר מן הראוי ולא עוד אלא אפילו פסקו לו בדמיהם הרבה מפני צורך השעה שלא מצאו סמנין אלא בידו אין לו אלא דמיהם אבל אם התנה בשכר הרופא הרבה חייב ליתן לו שחכמתו מכר לו ואין לו דמים: הגה ואע"פ שיש מצוה עליו לרפאותו שכל מצות עשה דרמיא אכולי עלמא אם נזדמנה לא' ולא רצה לקיימה אלא בממון אין מוציאין הממון מידו ולא מפקיעין מידו חיוב שלהן (טור): One who has medical ingredients and his neighbour is sick and requires them, is forbidden to raise the price above the standard value.13Derived from Yeb. 106a regarding the daughter of R. Papa’s father-in-law. Furthermore, even if they agreed to pay him an excessive amount, due to the need of the hour, — for they found that only he possessed the medical ingredients, — he is entitled only to the [standard] price.14 ibid. regarding the man who escaped from prison. However, if one stipulated an excessive sum as payment to the physician, he is obligated to give it to him, for he sold him his learning which cannot be valued in [terms of] money.15T.H. Gloss: Although he is required on account of the religious duty16 supra n. 2. to heal him, — for every positive command which rests upon every person [to fulfil], — [yet] if it chances to come to one's hand and he agrees to execute it only for money, — [the law is that] we do not claim the money from him,17If the physician had already received the money — BaḤ. The same applies to the medical ingredients if already paid for — R. A. Eger. Although the physician is forbidden to receive payment (v. supra par. 2), it is different, however, if the patient had obligated himself to pay. For the physician may put forth a valid claim that it was not only his own duty to study medicine, since everyone has the opportunity to master this field. Nevertheless, in the case of the man who escaped from prison (v. supra n. 14) and offered the ferryman an exorbitant fee to take him across the river, the law is that he was obliged to pay only the normal rates, despite the fact, that in this case too, the ferryman may claim that every person has the opportunity to learn his type of work, for in the latter case there exists an established rate, whereas in the former case the knowledge of the physician cannot be measured in terms of money. Consequently the stipulation must be fulfilled — TaZ. nor do we make him cancel his18Thus reading of T.H. and B.Yos. a.l. Cur. edd. have ‘their.’ obligation.19Tur — G. Even if he had not yet received the amount pledged — BaḤ, ShaK.