5772 - #44


Ki Teitzei

           Rabbi Dr. Norman Lamm, Is it a Mitzvah to Administer Medical Therapy?, Journal of Halacha and Contemporary Society 8:5 raises a most interesting question, specifically in regard to medical therapy but, in a broader sense, with major application to the nature of mitzvot in general. In questioning the exact nature of the mitzvah to provide medical therapy, Rabbi Lamm essentially inquires as to the relationship between this action and the desired result of this action. Is this desired result necessary in order to define the action as a mitzvah or does the action alone, done in the proper manner, suffice to label the action as a mitzvah even if the desired result is not attained? Simply, must a patient be cured for a doctor’s actions to be defined as a mitzvah or is the definition of these actions as those of a mitzvah independent of a successful cure as long as they were undertaken within the parameters of proper therapy? This type of question is actually found throughout the realm of mitzvot with different and differing answers for the individual mitzvot. When is the result a defining aspect of the mitzvah? The challenge is not just in correctly defining the nature of any specific mitzvah but also in the determination of why this question would matter.

            On the surface, the question may, actually, seem to be moot. T, B. Berachot 6a informs us that Hashem considers one who had the intent to perform a mitzvah but was barred from doing so as one who actually did the mitzvah. By extension, it would thus seem, similarly, that one who performed an action with an intended result albeit that it did not occur would be perceived by God in the same light as one who did the action and had this intended result. The issue is not, however, in how God perceives us. The issue is our understanding of the nature of a mitzvah action. What do we mean when we refer to some behaviour as a mitzvah? How do we understand the nature of a Divine command? That God may still positively evaluate our intent and effort is not the issue. The question is: what exactly is God’s demand? Is the demand the result or is the demand to undertake, to the best of one’s ability, action which could lead to this result? The answer may be different for different mitzvot. The requirement, however, is to arrive at the correct determination in regard to the variant mitzvot.   

            We may still wonder as to what practical difference there would be. In raising this question in regard to medical therapy, Rabbi Lamm actually focuses on a halachic distinction that would ensue from how one would answer this question. Shulchan Aruch, Yoreh De’ah 336:1 states that a doctor whose patient dies due to medical malpractice is guilty of negligent manslaughter and would, if cities of refuge were existent today, be deserving of exile.1 The problem is, however – and so it is framed by Yad Avraham – that the mishna on T.B. Makkot 8a exempts from exile those, such as an officer of the court, who commit negligent manslaughter in the performance of a mitzvah. If a doctor is performing a mitzvah in administering medical therapy, how could he/she thus be subject to exile? Yad Avraham thus concludes that the intended result must be a requirement in defining this behaviour as a mitzvah. Medical therapy is only an action of mitzvah if a cure is achieved and here, obviously, this did not occur; as such, the doctor is subject to exile. Aruch HaShulchan, Yoreh De’ah 336:2,2 however, disagrees. He maintains that a doctor would only be subject to exile if he administered the therapy wantonly, without serious effort. The administration of medical therapy does not need to result in a cure to be defined as an action of mitzvah but it must be done so with proper thought and intent. If this is lacking, there could be a penalty of exile but the absence of a cure in itself would not render the action not a mitzvah and the doctor subject to exile. Whether the mitzvah is in the cure or the undertaking to attempt to assist would seem to be a matter of disagreement.

            The fact is, though, that this root issue may actually apply in a somewhat more mundane manner, in our everyday lives, in how we view our mitzvah obligation in response to finding a lost article. T.B. Sanhedrin 73a presents the command of returning lost articles to their owner, as presented in Devarim 22:2, as a source for saving someone’s life. You are thereby returning someone’s life to them. Rambam, Perush HaMishnayot, Nedarim 38b clearly presents this as the source for the mitzvah of administering medical therapy; you are returning someone’s health to them. The above noted question regarding medical therapy may, as such, reflect a similar question in regard to returning lost articles to their rightful owner. Is the mitzvah only in the actual returning of the lost article or are one’s actions in attempting to return the article – securing the lost article, advertising that one has found the article, taking care of it – also mitzvah actions even though one was not successful in finding the owner?3 Nemukei Yosef on Rif, Baba Metzia 16a presents a difference of opinions in this regard, noting how some commentators understand the action to be a mitzvah only if the lost object is actually returned while others understand the effort in itself to be an action of mitzvah. Is the actual Divine command, thus, simply to return a lost article and this result is necessary to define the action as a mitzvah or is the command to simply do whatever you can to try and return it? Either way it may actually demand the same behaviour but there is still significance in recognizing this issue.

            The fact that there are halachic implications in regard to this issue obviously indicates that it has significance but recognizing this issue also has an important effect on our consciousness. How much focus should we put on a desired result? The action is not uniform. Sometimes the true value of one’s behaviour is solely in the behaviour. Sometimes, as much as we are curtailed by our inability to secure a desired result, the true value of a behaviour is still lacking without this result – and, sadly, this is something we must often recognize.

Rabbi Benjamin Hecht



1 As to the law of negligent manslaughter and the punishment of exile to a city of refuge, see Sefer HaChinuch, Mitzvah 520.

2 See, also, Shach, Yoreh De’ah 336:3.     

3 As an illustration of a possible halachic application of this, one may consider the question of whether this aseh, positive command, should override a lo ta’aseh, a negative command as per the general principle in this regard. If these acts are actual mitzvah actions, they would have that power. The fact is that T.B. Baba Metzia 30a actually raises this question in regard to whether a kohain can enter a cemetery to retrieve a lost article if he should see one there. The gemara concludes that since a kohain entering a cemetery would also be in violation of a positive command, this is not a simple case of one positive command overriding one negative command. Rather, it would be a case whereby the fulfillment of the one positive command would demand the violation of both a positive and negative command and this is not allowed. It would seem, however, in that the gemara asks this question, it perceives the very act of retrieving a lost article to be an action of mitzvah regardless of whether the article is returned in the end or not. See, however, Maggid Mishna, Mishna Torah, HIlchot Gezeila V’Aveida 11:18.  

Nishma 2012


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