SHOMER SHABBOS MEDICAL TRAINING

Transcription

1 SHOMER SHABBOS MEDICAL TRAINING Introduction Medical training is a long and arduous process. Physicians in the United States are trained in a twotiered system comprising four years of medical school during which one studies the basic sciences and receives one s first clinical exposure to patients (after which one is awarded an M.D. degree) followed by additional years of residency in a hospital during which the young doctor receives training in his chosen specialty. Residents are responsible for the complete care of their patients and function as full-fledged doctors. Typical duties of a resident include performing physical exams with use of diagnostic equipment, recording patients medical histories and results of their examinations, performing routine procedures such as drawing blood and inserting I.V. lines, entering medication orders or other information into the patient s chart or computer system, making necessary phone calls, and attending various conferences and teaching sessions. The exact range of duties for which a particular resident is responsible depends on his field of medicine (i.e. psychiatry residents duties differ from those of surgery residents) but many activities are common to all residents, particularly in the first year of residency. Every medical student faces an enormous twofold decision toward the end of his schooling. In what field of medicine should I choose to do my residency training? In which hospitals should I consider pursuing that residency? Many financial, personal, lifestyle, and family considerations are weighed carefully in reaching such a life-determining decision. It is arguably the most important (other than marriage) and often most difficult choice that one will make in his life. Orthodox Jewish medical students face an additional consideration. Routine duties of a resident entail many actions that would be classified as forbidden work ( melachos ) if done on Shabbos. It is virtually impossible to work in the hospital on Shabbos and avoid all such activities. If one were to work on Shabbos, he would inevitably be forced to do one or more melachos at least once during residency and in all likelihood, several melachos during every Shabbos spent in the hospital. Although call schedules may usually be exchanged and those who arrange the schedules are usually understanding of religious preferences, one cannot be certain that he will be successful in avoiding work on Shabbos without a prior guarantee from the hospital even if he is committed to making a sincere effort to avoid working on Shabbos. The question therefore becomes: Will I opt for a residency program that guarantees that I will never have to work on Shabbos or Yom Tov (this will be referred to as a Shomer-Shabbos residency ), or will I apply for the best residency training positions regardless of this consideration (this will be referred to as a non Shomer-Shabbos residency )? A Shomer-Shabbos residency is allows one to enjoy Shabbos with his family, spend time with his children, and often, improve the quality of his marriage. Despite these undeniable advantages of a Shomer- Shabbos residency, many residents are driven by one of two motivating factors to opt for a non-shomer- Shabbos residency. One, if no hospital offers such a program in the field of one s desired specialty. Two, even if such programs are available in one s desired field, they may be offered by relatively inferior hospitals and not by the superior training sites. Of course one has the responsibility to receive the best possible medical training and to a large degree this is dependent on the particular hospital and residency program in which one trains. This discussion will not differentiate between these two motivations and assumes that all that is discussed applies equally to both. 1

2 Surprisingly, to this day the decision of whether to opt for a Shomer-Shabbos residency remains one of personal preference for most medical students. It is commonly viewed as a purely lifestyle decision. There is a vague, almost mysterious atmosphere surrounding this question that leads many to believe that Jewish law ( halacha ) has no opinion on the matter. Experience has shown this to be the assumption of medical students of all backgrounds and both ends of the orthodox spectrum. However it is really a difficult question that must be examined from a halachic perspective. The problem is that there is scant halachic literature devoted specifically to this question. 1 There is much hearsay and unverified halachic opinions that are mentioned by students, residents, and practicing physicians. Clearly, this is not a question with an obvious resolution because its complexity prevents one from saying simply that it is permitted, required, or prohibited. There are legitimate arguments for either side of the question that cannot be matter-of-factly dismissed without close examination of the pertinent halachic and practical aspects. This issue must be dealt with in a serious manner considering both its ubiquitous nature and the fact that Shabbos is the core of our faith and carries severe punishment for its transgression. The following is certainly not meant to express a definitive ruling on this complex issue. There are many issues involved and there are certainly different opinions among contemporary halachic decisors regarding several of them. Rather, this essay is intended to heighten the awareness of some of the practical and halachic complexities of the question and hopefully encourage more discussion of the topic so that rabbis and medical students will be better informed when the issue is faced. I The Talmud 2 derives from the verse v rapo yerapei 3 that doctors have a divine license to heal. 4 Great rabbis throughout the ages have always lauded doctors as those who act as agents of G-d in healing the sick. 5 Unlike perhaps any other profession, the practice of medicine is considered by most rabbinic decisors to be an obligation for those qualified as well as an actual fulfillment of a mitzvah when treating Jewish patients. 6 Much has been written about the derivation and nature of this obligation. Despite the common misconception that halacha may be waived in the pursuit of medical knowledge that may one day be used to save lives, the truth is that there is no halachic dispensation for those studying 1 See Teshuvos V Hanhagos 1:871 and 3:357, B Ikvei Hatzon ch.9, Nishmas Avrohom (English) Vol.1 O.C. pp note 16, and Practical Medical Halacha by R M.D. Tendler and Dr. F. Rosner p Maseches Bava Kamma 85a 3 Shemos 21:19 4 Rambam seems to learn it from the posuk of V hasheivoso lo - see Tzitz Eliezer 11:41 5 See Talmud Yerushalmi 3:6 and Rambam in Shemona Perokim ch. 5 6 Rambam in Perush Hamishnayos (Maseches Nedarim perek 4) and Hilchos Nedarim (6:8) and Shulchan Aruch (Y.D. 336). See the comment of the Gra there who says that the source for the addition that refuah is a mitzva is the Gemara in Maseches Nedarim 41b. 2

3 medicine or receiving medical training to transgress even rabbinic prohibitions 78. There is no obligation for one to study to become a doctor even for the purpose of future saving of life. 9 Also, there is no special dispensation granted to desecrate Shabbos merely to retain one s livelihood. 10 II There are two general areas of halacha that are relevant to the question of non-shomer-shabbos residency. The first is the approach of halacha to the medical treatment of non-jews. Within this subject, the first issue that must be dealt with is the permissibility of treating non-jews during the week on an ordinary day. The Talmud 11 states that a Jewish physician may not heal non-jews at any time. This ruling is accepted by the Rambam 12 and R Yosef Karo in the Shulchan Aruch 13. It is obvious that this is halacha is not binding in all situations because Jewish physicians have always treated non-jews! How is this possible in light of this prohibition? The rationale relied upon by practicing Jewish physicians is that suggested by the Ramban 14 who held, based upon the Talmud, that if aiva - ill will between Jews and non-jews- would be created by the withholding of care from non-jews, it is permitted to treat them. This subject is dealt with more extensively in Appendix II. The second issue relevant to the question of residencies is the basic halacha of treating patients on Shabbos when medical treatment may require the performance of a forbidden act ( melacha ). R Yosef Karo in the Shulchan Aruch 15 describes several levels of illness that are each governed by their own halachos. 16 These halachos apply equally to caregivers, so that whatever an ill person may do for himself, 7 See R S.Z. Auerbach zt l in Nishmas Avraham I 307:5 and III 4:5. 8 This is because at the time of study there is no specific patient who will immediately benefit from this study of medicine. See Chazon Ish in Ohalos 22:32 and Y.D. 208:7; Shut R Akiva Eiger 1:60; Tzitz Eliezer 8:15:7:8; and SSK 32 note 2 who more extensively explain the parameters of this concept. 9 See Igros Moshe Y.D. 2:151 and Y.D. 3:155; Tzitz Eliezer 9:17:2:9 and 8:15:7:7; and B Ikvei Hatzon 9:6. 10 See Mishna Berura 656:10, sefer Chofetz Chaim klal 1 Be er Mayim Chaim 10, and piece by R Neuwirth in Halacha U refuah vol.1 p This is true even if one would transgress only issurei d rabonon on a regular basis-see psak of R Elyashiv shlita regarding anesthesiologists for abortions in NA IV p Maseches Avoda Zara 26a 12 Hilchos Avoda Zara 10: Y.D. 158:1 14 Brought by the Beis Yosef and Rema Y.D O.C. siman A patient with a minor discomfort (meichush b alma) may not waive any melachos; one who has a severe non-life threatening illness (choleh she ain bo sakana) may perform acts that are otherwise rabbinically forbidden on Shabbos, and one who has an even potentially life threatening illness (choleh sheyaish bo sakana) may perform an act that is otherwise even biblically prohibited. 3

4 others may do for him as well. 17 The exact details of these categories of illness as well as the guidelines determining exactly which melachos may be done for them are not directly relevant to our discussion and therefore will not be clarified here. 18 It is evident that varying degrees of prohibitions may be waived for the sake of healing including even biblical prohibitions for a dangerously ill patient. In a life-threatening situation, not only is one permitted to perform an act that is ordinarily biblically prohibited, but he is even commanded to do so. Furthermore, a qualified caregiver who even delays action in such a situation is considered to have committed an act tantamount to murder. 19 This rule is derived from the verse v chai bohem 20 that in essence states that the laws of the Torah are given as rules to live by but not to result in death. 21 One who does melacha on Shabbos for pikuach nefesh has not desecrated Shabbos but rather has upheld Shabbos. 22 This subject is dealt with more extensively in Appendix I. 23 The road to understanding the basis for the question of residency on Shabbos begins with the confluence of these two subjects, namely the halacha of treating non-jews on Shabbos. This is due to the fact is that there is no hospital (including those in Eretz Yisroel) in which residents who are on-call during Shabbos would not have to care for non-jews as well. Treating non-jews opens a Pandora s box of potential halachic roadblocks to working in a hospital on Shabbos. III May one may treat a non-jew on Shabbos when performance of a melacha is required? It is important to realize that the source of the permission to perform melachos to treat Jews is derived from the verse of v chai bohem. This clearly does not apply to healing non-jews and therefore there is at first glance no reason to think that one would be able to be transgress Shabbos to treat a non-jew, even independent of the general prohibition of treating non-jews that we have just mentioned. 24 The only way to possibly allow healing non-jews on Shabbos is to say that fear of aiva permits one even to perform melacha. The 17 See SSK 32:4 and note 14; Tzitz Eliezer 8:15:7: See a very nice summary of these guidelines in Nishmas Avraham IV in the introduction to O.C. siman 328 and in V p See Shulchan Aruch O.C. 328:2 and Mishna Berura 328:6 20 Vayikra 18:5 21 See Rambam Hilchos Shabbos 2:3 and Tosfos in Maseches Yoma 85a 22 Ohr Hachaim Shemos 31:13 23 These halachos ultimately do not impact the final ruling on the permissibility of a non-shomer-shabbos residency and therefore will not be included in the main text of this essay. However, they are included in Appendix I for two reasons. One, they give a broader context for those halachos that are relevant to the underlying question. Two, they provide a sense of the attitude of halacha to healing on Shabbos. 24 For example, even if the general issur refuah of non-jews applies only to ovdei avoda zara, it is poshut that one may not violate an issur on Shabbos for any non-jew. (See also Sheyarei Knesses Hagdola Y.D. 154 and Shulchan Aruch Harav O.C. 330:2) 4

5 Talmud 25 seems to straightforwardly dismiss this notion for the reason that on Shabbos there simply will never be any aiva created -one can simply tell a non-jewish patient that Jews are permitted to violate Shabbos only for one who himself observes Shabbos and therefore are not permitted to transgress Shabbos to heal a non-jew. What then is the halachic rationale to permit treating non-jews on Shabbos? The answer is that it is obvious that nowadays the claim mentioned in the Talmud will certainly not avoid aiva (and perhaps even intensify it!). It must be assumed that nowadays aiva will be created on Shabbos just as during the week. We therefore may not follow the simple reading of the Talmud but must rely on its implied opinion regarding situations in which aiva will be created. 26 The inference from the Talmud is that were it true that withholding care would create aiva, one would be able to treat non-jews on Shabbos. All Rishonim and poskim accept this inference but dispute its application. The Ritva and Ran 27 hold that all this means is that for the treatment of a non-jew, one may do an action which entails undue bother (a tircha yesaira ) but certainly not one that results in the transgression of any prohibitions, even of only a rabbinic prohibition. 28 Tosfos 29 and Talmidei Rabeinu Yona 30 infer that while one may not transgress a biblical prohibition, he may do something that entails a rabbinic prohibition. 31 Although R Yosef Karo in the Shulchan Aruch in two places 32 seems to side with the former group of Rishonim, later poskim 33 debate what the true halacha is. The Chasam Sofer 34 in a lengthy responsa proves that the correct ruling follows the opinion of the latter group of Rishonim that one may violate a rabbinic prohibition on Shabbos to treat a non-jewish patient. We have seen that the most lenient opinion is that to prevent aiva one may violate a rabbinic prohibition- but no Rishonim or early poskim write that one may violate a biblical prohibition! This led the Mishna Berura to write in very harsh terms 35 : One must be aware that even pious doctors in our time totally disregard this halacha and travel and write on Shabbos for the care of a non-jew. For even if one were to say that it is permitted to violate a rabbinic prohibition to avoid aiva (and the Pri Megadim is unsure even of this), all agree that one may not violate a biblical prohibition. 25 Maseches Avoda Zara 26a 26 We find a precedent for this in the notes of R Akiva Eiger in siman 330 where he comments that even in the time of the Talmud this argument was ineffective when faced with a patient of royalty or nobility. 27 Maseches Avoda Zara 26a 28 As explained by Tzitz Eliezer 8:15:6 29 D h savar 30 Sheyarei Knesses Hagdola Y.D The position of the Rambam is unclear and he is assigned to either of the aforementioned opinions by various acharonimsee for example the Chasam Sofer and Sheyarei Knesses Hagdola. 32 Y.D. 154:2 and O.C. 330:2- and see Nishmas Avrohom I p.225 and 227 for the uncensored version of the Shulchan Aruch 33 For example, the Pri Megadim O.C. 330 A.A. 5 and Mishna Berura 330:8 34 Shut Chasam Sofer C.M. 194 and later in Y.D :8 5

6 IV Notwithstanding the powerful words of the Mishna Berura, virtually all contemporary poskim 36 conclude that in actual practice, one may violate even a biblical prohibition to treat a non-jew. How is this ruling justified in light of all that we have just discussed? There are two explanations found in contemporary responsa. One line of reasoning proposed by several poskim including R Ovadia Yosef shlita 37 and R Eliezer Waldenberg shlita 38 agrees with the Mishna Berura that aiva will not permit a biblically prohibited melacha. Their suggestion is that we find elsewhere in earlier poskim 39 the idea that a melacha done out of fear is considered a melacha sh eina tzricha l gufa and therefore only a rabbinic prohibition, which is permitted to prevent aiva. This effectively permits every seemingly biblical prohibition because in place of danger it is transformed into a rabbinic prohibition. However, in addition to the fact that the Mishna Berura and Chasam Sofer clearly didn t agree to this apparently circular reasoning, R Moshe Feinstein zt l 40 and Dayan Yitzchok Weiss zt l 41 reject this approach outright. 42 The second line of reasoning assumes that we will allow the performance of actual biblical prohibitions. How is this possible? The explanation is that although conventional aiva as defined earlier (creation of ill will between Jews and non-jews) will not permit the transgression of a biblical prohibition, there is a second, more severe type of aiva that will permit it. The underlying basis of this idea was first mentioned by the Chasam Sofer 43 who introduced the concept of leniencies in the halachos of treating non-jews on Shabbos for fear of recriminations against Jews who would withhold treatment from non- Jews while at the same time treat Jews in the same predicament. This backlash might take the form of pogroms, mass anti-semitism or even more subtle actions such as a quid pro quo refusal by non-jewish doctors to treat Jewish patients. The Chasam Sofer in that responsa reluctantly permitted the transgression of a rabbinic prohibition in situations of this type of severe aiva, but in a later responsa 44 he permitted the 36 With the exception of Shut Be er Moshe 5:164:2 and see SSK 40:14 37 Halacha U Refua 1:147 but retracted in Yabia Omer 8 O.C Tzitz Eliezer 8:15:6 and 10:25:19 39 Maharik siman 137 and Pnei Yehoshua Shabbos 72b as well as others who use this psak l halacha 40 Igros Moshe O.C. 1:121 and end of O.C. 4:79 41 Minchas Yitzchok 1:53 42 This argument seems to be inherently flawed for another reason. It is mentioned in Appendix I that many poskim hold that there is an obligation for one who performs an act that is otherwise forbidden on Shabbos for pikuach nefesh to do so with the specific intention that his actions are permitted solely because there is such a leniency in halacha. When treating Jews, we can assume that one s automatic subconscious intent is exactly that to save a Jew s life. However, when treating non-jews it becomes more complicated because the danger to life that results in the permitted melacha is the danger to the doctor s life, not to the non-jewish patient s life. It is therefore difficult to have that specific intention for every melacha done- and saying it once in the morning is not sufficient. On this idea, see Teshuvos V Hanhagos 3:357 and B Ikvei Hatzon 9:3. 43 Shut C.M Y.D

7 transgression of even a biblical prohibition in such cases. 45 As the Chasam Sofer himself summarizes his position, one may treat a non-jew on Shabbos not for danger to the life ( pikuach nefesh ) of the non- Jewish patient, but for possible danger to the life of the Jewish doctor (or other Jewish doctors and patients)! Later poskim have further extended the Chasam Sofer s principle. R Moshe Feinstein zt l 46, R S.Z. Auerbach zt l 47, R Eliezer Waldenberg shlita 48, Dayan Weiss zt l 49 and R Ovadia Yosef shlita 50 write that in today s age of instant and mass communication, a Jewish doctor s withholding of treatment from a non-jew on Shabbos will almost certainly result in legal and physical recriminations against both the doctor himself and Jews around the world. Therefore it is not merely a question of possibly inducing a life-threatening situation as the Chasam Sofer had assumed but it is one of certainly inducing such a situation and therefore even biblical prohibitions are permitted even if a particular doctor does not sense that any imminent danger will result by his withholding treatment from a particular non-jew. 51 R Feinstein zt l wrote that it is a wonder that the Mishna Berura did not acknowledge this fact. 52 Although R S.Z. Auerbach zt l 53 debated if this leniency of personal danger would allow the transgression of a biblical prohibition for a non-jew who has a non life- threatening illness (i.e. a choleh she ain bo sakana), it apparently does apply since the potential for personal danger in that case is equal to that of the case of withholding treatment from a patient with life threatening illness (i.e. a chole sheyaish bo sakana). Ironically, this would result in the interesting fact that in the treatment of a non-life threatening illness on Shabbos one may be more lenient when treating a non-jew for whom a biblically forbidden act is permitted than when treating a Jew for whom only a rabbinically forbidden act is permitted. However, in actual practice R S.Z. Auerbach zt l himself ruled for Mogen Dovid Edom (the Israeli EMS) that one may not perform a biblically prohibited act for a non-jew with a non-life threatening illness 54. The reason 45 See also Darchei Teshuva 154:9 and Tiferes Yisroel in Maseches Avoda Zara 2:6. 46 Igros Moshe O.C. 4:79 and Y.D. 1:184 and O.C. 5:25 47 SSK 40 note 42 and Nishmas Avrohom I p Tzitz Eliezer 8:15:6, 9:17:1, 9:17:9, and 10:25:19 49 Minchas Yitzchok 1:53 and 3:20 50 Yabia Omer Vol. 8 O.C This heter is taken even further by the Divrei Chaim in Shut O.C. 2:25 (who although himself does not accept this kula, is brought by the Igros Moshe and most of the other aforementioned poskim) who writes that not only does this heter apply in situations where this catastrophic result may potentially occur, but the Rabbonim applied it to every instance of treatment of a non-jew on Shabbos. 52 Even though R Moshe zt l himself (in Igros Moshe O.C. 1:127 in a Teshuva on a different aspect of the halacha of being mechalel Shabbos for pikuach nefesh- see Mogen Avrohom brought in Mishna Berura 248:26) holds of a concept of subjective pikuach nefesh that is dependent on the fortitude of each individual, the potential pikuach nefesh in our current discussion is objective and not individualized. 53 SSK 40 at end of note Shulchan Shlomo siman 330:7 note 13 7

8 is that there is no resulting danger because the physician is acting toward the non-jew in exactly the same manner that he would act toward a Jew. V We now understand the accepted halachic rationale for treating non-jews during the week and even more importantly, for performing even biblically prohibited acts to treat them on Shabbos. However, entering a medical residency training program is a halachically complex situation fraught with complications and potential problems. These problems fall into three categories. The first category includes limitations of the aforementioned reasoning in given situations. The following is a partial list of situations in which the aforementioned grounds for leniency may not apply. One, there are many activities that if withheld will not create potential personal danger or even ill will and therefore are not covered by the aforementioned leniency but are still included in the demands of residency. Two, a Jewish doctor may not do forbidden actions that the non-jewish patient can do by himself. 55 Three, melachos that can be done with altered technique ( shinui ) must be done in that manner. 56 Four, melachos that are superfluous cannot be done. This is a serious concern that due to human nature is unfortunately very common. Residents often lack the sufficient autonomy and self-confidence to act in accordance with halachic guidelines on Shabbos (for example, it is a challenge to use an entire roll of gauze to bandage a wound when an observing senior resident is aware that only a few feet of gauze is necessary for the job). It is certainly not permissible to perform totally superfluous melachos merely because of peer pressure. The second category of potential problems also results from human nature. We find a concept in halacha of dilma assi l misrach 57 which warns against performance in a permissible manner of acts that are ordinarily prohibited for fear that one will transgress such prohibitions in the future even when not permitted to do so. It is unfortunately a common, not unexpected occurrence that residents who have become accustomed to performing melachos for bona fide pikuach nefesh unwittingly find themselves performing melachos for no health related purpose (for example, doodling absentmindedly, turning on lights in lit rooms or bathrooms, etc., etc.). We don t find a specific application of this principle to permitted desecration of Shabbos, but it seems logical and certainly within the spirit of the law to indeed apply it here as well. 58 The third category of problems comprises fundamental limitations in the application of the aforementioned grounds for leniency to non-shomer-shabbos residencies. These are the real issues on which the question of non-shomer-shabbos residency hinges and are discussed in the remainder of this essay. 55 See Nishmas Avraham I siman 330 p. 227 note 44 based on Shaare Teshuva 307:6 56 Tiferes Yisroel in Maseches Avoda Zara 2:6, brought by R Neuwirth in Halacha U Refua vol. I, and see Appendix I. 57 Maseches Eiruvin 40b 58 See B Ikvei Hatzon 9:5 8

9 VII Although one faced post facto with the need to treat a non-jew on Shabbos may do so even if it entails the performance of a biblically prohibited act, may one willingly put himself in a position where he will be forced to do so? It is discussed in Appendix I in the context of healing a Jew that one is obligated to do all that he can before Shabbos to prevent eventual chillul Shabbos even for a patient with a life threatening illness. This was based on the Shulchan Aruch 59 and Mishna Berura who deal with situations where the pikuach nefesh will certainly exist on Shabbos 60 and the question is what one who anticipates facing such a scenario must do beforehand. However, now that we have established that the pikuach nefesh that results in the permission to perform biblically prohibited acts for treatment of a non-jew is the danger to the life of the doctor and not the patient, the question changes. The question now becomes- may one willingly create a situation of pikuach nefesh that will then require the transgression of melachos? We find an apparently clear source for this question in Shulchan Aruch 61. The first scenario in that siman 62 deals with the case of hamaflig b sfina -one who plans to set sail on a ship before Shabbos and remain on the ship during Shabbos. One of the many opinions in the Rishonim as to what Chazal s concerns were in limiting travel before Shabbos 63 is that of the Baal Hamaor. The Baal Hamaor opines that Chazal were afraid that even one who sets sail before Shabbos may be put in a position of personal pikuach nefesh on Shabbos and therefore be forced to do melacha. The Shulchan Aruch accepts this opinion 64 and deals with it independently 65 in the case of hayotzim b shayara -one who begins a desert trip in a caravan before Shabbos and will remain in the desert on Shabbos. The Shulchan Aruch states that one who plans to travel through the desert with a caravan before Shabbos and is certain that he will be forced to be transgress Shabbos 66 due to the danger of remaining alone in the desert may begin his trip on Sunday, Monday or Tuesday but not on Wednesday, Thursday, or Friday. It is important to note that the Mishna Berura 67 clarifies that this ruling merely allows him to begin his trip and accept the consequences but is not a blanket permit for transgression of Shabbos. One still must do all that is within his power to avoid and minimize transgression of Shabbos. See further discussion of this halacha in Appendix III. 59 Simanim 330 and Siman 330 deals with childbirth and siman 344 deals with the case of one lost in the desert. 61 Siman :1 63 See hakdama of Mishna Berura to siman 248 and piece by R Levi Yitzchok Halperin in Ateres Shlomo vol.6 p.79 for detailed summaries of the various opinions. 64 In addition to other opinions that are not relevant to this discussion and in general are limited to the case of the sfina :4 66 The Rivash brought by the Mogen Avrohom and Mishna Berura 25 clarifies that this refers even to a melacha d rabonon :9 9

10 At first glance it seems that this can be directly applied to the case of a non-shomer-shabbos residency. It appears to exactly parallel the case of the Shulchan Aruch in that one is willingly creating a situation of pikuach nefesh for which he will be forced to transgress Shabbos. Since a resident signs his contract more than three days before Shabbos, he would be permitted to take a non-shomer-shabbos residency position provided that he fulfills the Mishna Berura s requirement of doing all he can to avoid and minimize transgression of Shabbos. In truth, it is more likely that signing a residency contract even several months before the start of residency would not fall under the rubric of the halacha of beginning travel more than three days before Shabbos. The halacha of hayotzim b shayara doesn t take into account when the agreement with the sailors or caravan was made- only when the trip was begun. 68 It is in fact more likely that it is not the signing of the contract that should be used to determine this halacha, but rather the beginning of the actual irreversible process of working on Shabbos- i.e. every Friday afternoon before a Friday night or Shabbos call day. Therefore the halacha governing a residency would seem to be that of one who leaves within three days of Shabbos, which is not permitted. Although the Shulchan Aruch does permit one to travel for a mitzvah even within three days of Shabbos, it is obvious that healing non-jews on Shabbos is not a mitzvah and in fact essentially a transgression of halacha that is permitted only for the doctor s own pikuach nefesh. 69 But even if one were to argue that residency is analogous to beginning a trip early in the week, there are still two seemingly insurmountable problems. One problem is that the Shulchan Aruch 70 writes that even in cases where it is mutar to travel (i.e. early in the week, or even later in the week for a mitzva), one must arrange beforehand for the ship or caravan to stop on Shabbos. Only in the event that during the trip the sailors or caravan leaders ignore their prior agreements and continue traveling on Shabbos do these leniencies serve to permit the Jew to continue traveling and even do melacha for pikuach nefesh. 71 The Biur Halacha 72 explains that it is inconceivable that we will find a heter to voluntarily enter a situation that will certainly lead to transgression of Shabbos. It must be that the heterim of d var mitzva and of leaving early in the week apply only to cases in which it is not certain that chillul Shabbos will be necessary. In cases where chillul Shabbos will certainly take place, under no circumstances may one begin a trip. R S.Z. Auerbach zt l 73 writes that that this opinion should decide the halacha in almost all cases. 68 Even though R S.Z. Auerbach zt l assumes- in Hatzava K halacha 25:4 brought in Shulchan Shlomo 248:9 - that we look at the date one leaves his house even if the actual trip doesn t begin until days later, we don t find anyone who reckons the date of the agreement with the sailors. 69 Even if it were a d var mitzva, it would be mutar only if it could not be done in any other way as R Moshe zt l writes in Igros Moshe O.C. 1: :1 and 248:4 based on the Shut Rivash 71 Although the simple understanding of the Shulchan Aruch as well as the position of the Levush, Shulchan Aruch Harav 248:13 and Elya Raba 248:12 is that this arrangement must be made only l chatchila, the Mishna Berura 248:29 writes that this prior agreement is absolutely required- without it one may not travel even early in the week or for a d var mitzva, even if it results in the cancellation of the trip. 72 D h uposek, based on the psak of the Mahriv l 2:53 and Radvaz 1:10 and 4:77, both brought by Mogen Avrohom 248:14 and later in Mishna Berura 248:26 73 Minchas Shlomo 1:7:2 10

11 This is analogous to a residency, which is an example of a situation in which transgression of Shabbos for pikuach nefesh will certainly take place. At the time of signing the contract one is never certain that he will be able to switch all his calls and avoid working on Shabbos and certainly doesn t make those arrangements at that time (if one did make such arrangements at the time of signing, by definition it is a Shomer-Shabbos residency!). Although the Mishna Berura 74 does agree that if the only concern were that one would be forced to do a rabbinically forbidden act, one would not be absolutely required to make the prior arrangement, even routine duties of a resident entail many biblically forbidden acts. The second, more basic problem applies even if one were sure that he would be forced to perform only rabbinically forbidden acts. The Mishna Berura 75 explains that the reason for the leniency in the case of one traveling early in the week is that at that point in time one is not responsible to look ahead and prevent every possible situation that may result in the need to do a melacha the following Shabbos. If an oness of pikuach nefesh later arises he may do the required melacha. However, the Mishna Berura continues, it is obvious and accepted by all that under no circumstances may one arrange with the sailors or caravan leaders to assist them on Shabbos in something that involves a melacha! This is even if he would agree to do only a rabbinically forbidden act, even if the trip is for purpose of a mitzva, and even if this means that he will not be able to travel at all! This is apparently analogous to a residency in which one agrees and even obligates himself to perform necessary melachos on Shabbos. It is now clear that if one were to work in a hospital that accepts only non-jewish patients, he would not be allowed to opt for a non-shomer-shabbos residency. The Shemiras Shabbos K hilchoso writes this clearly 76 - a doctor working in a hospital where all the patients are non-jews is required to exchange his Shabbos shifts with a non-jewish doctor, even if he must pay the non-jew or do double the amount of shifts during the week. IX There remains one more possible avenue to permit opting for a non-shomer-shabbos residency even in a hospital with a predominantly non-jewish patient census. Most if not all hospitals have Jewish (even if not frum) patients as well as non-jewish patients. It is discussed in Appendix I that the opinion of the Rambam and R Yosef Karo in the Shulchan Aruch is that if a Jewish patient is in a state of pikuach nefesh on Shabbos, a Jewish doctor and not a non-jewish doctor should provide medical treatment, even if doing so entails the performance of biblically prohibited acts. 77 This is becomes it is assumed that the Jew will be more scrupulous in his treatment and act with greater alacrity. 78 Based on this, R S.Z. Auerbach zt l held 79 that as long as there is even one Jew under a Jewish doctor s care, the doctor should remain in the :3 and in Biur Halacha ibid : :23 77 See Shulchan Aruch O.C. 328:12 and SSK 32:6 78 See Mishna Berura 328:37; and see a different reason in Mishna Berura 328: 33 and SSK 32 note SSK 40 note 65** and in SSK vol.3 tikunim umiluim to that note 11

12 hospital on Shabbos rather than entrust the Jewish patient s care with a non-jewish doctor, even if this means that he will be forced to treat all the non-jewish patients as well. He will then be permitted to treat the non-jewish patients using the leniency of personal pikuach nefesh previously discussed. 80 This seems at first glance to be a valid reason to permit opting for a non-shomer-shabbos residency in New York or other location with a large Jewish population in which one ostensibly would remain in the hospital on Shabbos to care for any Jewish patients and as a necessary byproduct, care for non-jews as well. The halachic status of a non-shomer-shabbos residency appears to depend on the validity of this preceding argument. It appears that this cannot serve as the basis to allow a non-shomer-shabbos residency for several reasons. 81 One, this ruling of R Auerbach zt l follows the opinion of only R Yosef Karo but not that of the Rema. We mention in Appendix I that the Mishna Berura accepts the ruling of the Rema who states that it is preferable that an equally competent non-jew be asked to treat even a Jew on Shabbos. It seems that although when a Jewish doctor is faced with only a Jewish patient he may be stringent and treat him himself, it is difficult to use that as a leniency to allow treating non-jews as well. Two, even if we accept R Auerbach zt l s ruling, a resident is never guaranteed (even in a hospital located in a large Jewish neighborhood) that there will always be a Jewish patient under his care on Shabbos. If on just one Shabbos during residency there is a time when there are no Jewish patients under the resident s care, any melacha he does for care of a non-jew will be retroactively a violation of halacha and not exempted by the claim of personal pikuach nefesh. Of course, avoiding even just one chillul Shabbos is sufficient grounds to determine even a life-altering course of action. Although I have heard that there are those who say that it is sufficient for there to be merely a possibility that one will have to care for a Jewish patient over the course of Shabbos, it seems that halacha dictates otherwise 82 and even R S.Z. Auerbach zt l clearly did not agree (because his novel claim was that the presence of even one Jew forces the doctor to remain in the hospital, not just the possibility of one Jew). Also, not all hospitalized patients are patients with life threatening illnesses 83. This means that even if there are Jewish patients in the hospital, if they do not have life threatening illnesses one may not be permitted to remain in the hospital to treat them and therefore it follows that there would be no permission to treat the non- Jews. Since there is no guarantee to have a Jewish patient with a life threatening illness under one s care every Shabbos throughout residency, it seems that one may not make such a commitment. Three, even according to this understanding and acceptance of R Auerbach zt l s ruling, a resident would be permitted only to remain in the hospital to care for his patients from Friday afternoon to Friday 80 R Auerbach zt l says that this is true even if during the week one would swap call days for even personal or social reasonsif the only motivation for switching is to avoid chillul Shabbos for a Jew, he should rather stay and care for the Jew. This means that even R Auerbach zt l agrees that one is not obligated to stay if he has other reasons for leaving, such as going home to his family. 81 Although R Auerbach zt l doesn t specify the reason for his reservation, he himself writes this ruling without certainty, only as it is possible that. 82 See the introduction where we cited the Chazon Ish, R Akiva Eiger, and others regarding the need for a patient with an immediate need to justify transgression of melacha on Shabbos. 83 See SSK 32:8-9 and note 2 12

13 night. However, it would not allow a resident to first come in to the hospital on Shabbos, nor even move to a different floor (i.e. emergency room) once Shabbos has begun. 84 Four, the main objection to using this argument as grounds to permit opting for a non-shomer Shabbos residency is that it is based on a misunderstanding of R S.Z. Auerbach zt l s point. R S.Z. Auerbach zt l was referring to a strictly post facto situation. The first point one must realize is that he may not work on Shabbos! Only if one finds a Jewish patient under his care at the outset of Shabbos may he not exchange his duty and stay for the sake of that Jewish patient. But one may never put himself in such a situation. All poskim unanimously agree that the permission to treat a non-jew on Shabbos in a manner that entails the performance of melacha is granted only post facto and only under extremely extenuating circumstances. 85 Conclusion In summary, the question of whether one may opt for a non-shomer-shabbos residency is quite complicated and involves many issues in hilchos Shabbos. It is the goal of this essay to elucidate many of the issues underlying the halachic approach to the question of the permissibility of undertaking a non- Shomer Shabbos residency training program. It is not the ideal situation for a Shabbos-observing Jew to be placed in and there are many almost insurmountable technical halachic issues faced in every such residency that regardless of the ultimate halachic ruling one receives from his own halachic decisor should strongly dissuade one from entering such a dangerous situation. 86 Every Jewish doctor has the enviable opportunity to use his knowledge and skills for service of G-d in ways not available to others. With the previously unfathomable levels of Torah learning and scrupulous mitzvah observance that are now taken for granted in America, it is time for the medical profession as a whole to face those remaining cloudy issues so that they can truly deserve the honor due those who sacrifice themselves to act as messengers of G-d in healing His people. 84 See also Igros Moshe O.C. 1: For example, see the wording of Dayan Weiss zt l in Minchas Yitzchok 1:53, of R Eliezer Waldenberg shlita in Tzitz Eliezer 8:15:6, and R Moshe Feinstein zt l in Igros Moshe O.C. 4: There is one possible option for those who wish to join a residency program that will not guarantee that they will not have duties on Shabbos or Yom Tov. That is for the resident to hire a non-jew to accompany him in the hospital on Shabbos and do any melachos that may be necessary. Such a solution is technically demanding and quite complicated in actual practice. It is not within the scope of this essay to discuss the halachic permissibility of such an option. 13

14 Appendix I There is a concept accepted by most poskim that assumes that the heter of pikuach nefesh on Shabbos is only d chuya (which means that all issurim of Shabbos remain in effect but one is permitted to transgress them for the sake of pikuach nefesh), not hutra (which means that the issurim are suspended in the face of pikuach nefesh). 87 In practical terms, this means that although one need not hesitate (and in fact may not hesitate) to do anything for pikuach nefesh, that is only if one finds himself post facto in such a situation. However, one should avoid being placed in such a situation if there are others who would be able to achieve the same result (as R Moshe zt l writes, a doctor should have an unlisted telephone number so that he will not be found easily on Shabbos 88 ). It appears from R Moshe zt l s explanation and application of the concept of d chuya that one may not volunteer or make himself available on Shabbos to care for Jewish patients if there is another caregiver to take his place. However, R S.Z. Auerbach zt l 89 disagrees with R Moshe zt l s understanding of d chuya and may hold that a doctor can in fact make himself available on Shabbos. There are a number of other halachos that may or may not be dependent on whether the heter is hutra or d chuya. We will examine several fundamental questions but will not be concerned with the lomdus of each halacha. All that we will focus on is how we pasken in each case. The most basic question is- when presented on Shabbos with a Jewish choleh sheyaish bo sakana, can (or must) one act in the same exact manner as he would during the week? Of course, in an acute crisis that demands immediate intervention, one should certainly not hesitate and must act without thought of Shabbos. What about in a case where there is no sense of immediate urgency and there is time to make a decision and act accordingly? This question has three potential ramifications. One, should the melacha preferentially be done by a non-jew of equal competence and concern who is present at the time action will be taken? Two, should the melacha preferentially be done with a shinui if doing so will not harm the 87 See Rambam and Kesef Mishna in Hilchos Shabbos perek 2; Rema O.C. 328:12; Mishna Berura 328:39; Pischei Teshuva Y.D. 370; Igros Moshe O.C. 4:79, O.C. 1:131, C.M. 2:79:4; Shemiras Shabbos K hilchoso 32:28 notes See also Toras Hayoledes ch.59 note 3 89 Minchas Shlomo 1:7 and see SSK 32 note

15 patient in any way? Three, should melachos be minimized both in frequency and severity if doing so will not harm the patient? 90 This question is the subject of a major machlokes haposkim. The Rambam 91 and Mechaber 92 hold that one should act exactly as he would during the week and therefore there one should not ask a non-jew, nor do the melacha with a shinui, nor strive to minimize melachos. 93 On the other hand, the Rema 94 holds that one should act differently on Shabbos and engage the services of an available non-jew, do melachos with a shinui, and minimize the severity and quantity of melachos when it is feasible to do so. The latter group of poskim agree that this is only when one is certain that abiding by these suggestions will not harm the patient. 95 Among later poskim, the Taz 96, Aruch Hashulchan 97, Shulchan Aruch Harav 98 and Tzitz Eliezer 99 follow the opinion of the Mechaber. The Chayei Adam 100 and Mishna Berura 101 follow the opinion of the Rema. The shita of R S.Z. Auerbach zt l and the SSK is somewhat different. They follow the Rema in requiring a shinui and hakal kal techila 102 but follow the Mechaber in discouraging the use of a non-jew. 103 However, even the SSK agrees that if a non-jew is immediately available, one should engage his services. 104 This leads to another fundamental question. When presented on Shabbos with a choleh sheyaish bo sakana may one perform melachos d oraiso that won t directly affect the patient s health (such as writing 90 This last point is known as maachilim osso hakal kal techila as is found in O.C. 618:9 91 As explained by the Maggid Mishna in Hilchos Shabbos 2:3 92 Shulchan Aruch O.C. 328:12 93 See also Gra in Y.D. 266:10 94 O.C. 328:12 95 R S. Z. Auerbach zt l in SSK 32 note 86 also suggests that when following the Rema one should announce to all onlookers that it would be mutar to act without a shinui, etc. if deemed necessary : : : :15: : :35, 328:62, 330:21, 331: 24 and 278:2, and Biur Halacha 328 d h kol 102 SSK 32: SSK 32:6 104 SSK 38:2 15

16 in the patient s chart or even providing comfort measures such as turning off a light) or is one limited to melachos that are potentially life saving? Also, should one attempt to minimize such relatively unnecessary melachos in quantity and quality? The question applies only to the former group of poskim in the previous question, because according to the latter group of poskim one certainly is not permitted to do a melacha d oraiso in such a situation. The Mechaber 105 seems to hold that one can do a melacha d oraiso even in such circumstances. However, the Mishna Berura there refers to his comments in the Biur Halacha 106 where he lists many poskim who say that a melacha d oraiso may be done only if a melacha will directly benefit the patient s life. The Mishna Berura concludes that even according to the opinion of the Mechaber (discussed in the preceding section) one should be machmir and do such melachos as if the patient were cholim she ain bohem sakana. This is also the opinion of R B.Z. Abba Shaul 107 and of R S Z. Auerbach zt l. It is now clear that to treat Jews on Shabbos one must be expert at distinguishing the different levels of illness as defined by halacha. One must then also be expert in evaluating whether a given melacha is m deoraiso or m derabbonon, whether it can be done with a shinui, and how necessary it is for the patient. There is another potential limitation to the heter of pikuach nefesh. According to many poskim, one may do a melacha for pikuach nefesh only if he has kavana that it is mutar to do this act because it is for pikuach nefesh. 110 However, this is not a practical concern for two reasons. It is likely that we can assume that this is an observant Jew s automatic kavana when treating Yidden even if he is not consciously aware of it. 111 Also, there are those who hold that kavana is not required. 112 [This is independent of another related halacha derived from that Gemara in Menachos- that of the Haflaa brought by the Beis Halevi in Parshas Shemos regarding one who is an oness but would have done the action anyway. 113 The poskim discuss another point that strongly affects actions done on Shabbos for refuah that could have been anticipated before Shabbos. The halacha is that one who before Shabbos anticipates the possibility of being forced to do melacha on Shabbos for pikuach nefesh must do all that he can before 105 Shulchan Aruch 328:4 as explained by the Mishna Berura 328: d h kol 107 Shut Or L tzion 2: As brought in Nishmas Avraham V p. 203 and p. 159 and see there p See many maare mekomos on this question in Encyclopedia Hilchasis Refuis vol.6 pp and English Nishmas Avrohom p This is based on the shita of Rava in the Gemara in Maseches Menachos 64a; see Rambam Hilchos Shabbos 2:16; Shemiras Shabbos K hilchoso ch.32 note 125; B Ikvei Hatzon 9:3; R Y. Zilbershtein in Hatzoloh K halacha p B Ikvei Hatzon 9:3 based on Chayei Adam brought in Mishna Berura 60: See Toras Hayoledes ch.13 note 10 and piece by R Zalman Nechemia Goldberg in Halacha U refuah 1:181 where they show that we pasken like Rabba and not Rava 113 This is mentioned by R S. Z. Auerbach zt l in SSK there and is extensively dealt with in Toras Hayoledes ch.13 note 8 and by R Z.N. Goldberg in Halacha U refuah there. 16