The American Spectator

A Further Perspective

Readers expect me to offer intelligence guided by experience, in Rex Stout's phrase, tempered by general knowledge, informed by moral tradition. My Biblical and Talmudic scholarship serves as reference material, but it is not my job to deliver a precise version of Jewish law and philosophy on specific concrete cases. But today is an exception. Today the President of the United States has appealed to religious thinkers everywhere to enlist in his moral crusade for health care reform. This obligates me to formulate a response grounded in explicit Jewish thought. Here goes.

In considering the President's proposals, his stated goals, his strategies and his representations throughout this process, I believe the following elements tend toward a comprehensive determination.

1) The Talmud asserts that a victim of a tort has a legal right to refuse free medical treatment and demand the doctor be paid. If a man assaults me, he must pay my doctor bills. If a doctor volunteers to treat me for free, I may demand that he receive full payment, on the principle that the profit motive produces a higher quality of care. The phrase is coined (Bava Kamma 85a): "The doctor who heals for nothing is worth his price."

Thus, there is a bias in favor of compensating doctors well. Observation bears this out, as better doctors demand higher prices and produce better work. The notion that stripping the compensation will not be deleterious to the work is wrong-headed.

2) The Talmud, in the same context, asserts that a doctor who is not local and accountable will also be less effective. If the assaulter offers to bring in a good doctor from out of town, the victim may demand the local doctor instead, on the principle that having the patient nearby as an inescapable presence leads the doctor to maintain a higher degree of vigilance. Here another maxim is crafted: "A doctor sees from afar with a blind eye."

Clearly, doctors who know their patients on an individual basis over the long term and make personalized decisions provide vastly better care. Any nationalized system is sure to build walls between doctors and patients.

3) According to Jewish law, decisions involving health belong entirely to the doctor, binding the rabbi to his decision. The most common example is fasting on Yom Kippur. If the doctor says the person is not healthy enough to fast without risk to his life, the rabbi must instruct the person to eat.

This is true even if the doctor is a rabid secularist or an idolator, and national pride is entirely suspended. For instance, the greatest rabbi in the post-Second-Temple era asked for Roman doctors to heal the High Priest, because he felt they were more capable.

Essentially, then, the religion provides for the doctor to be sole arbiter in determining the degree of risk, with the law accepting his verdict as fact. To undermine this authority in favor of government would constitute a distortion of the healthy societal construct, in addition to creating the unhealthy distance between decider and patient.

4) Jewish law generally polices price gouging, prohibiting merchants from charging more than a sixth above market. A special exception exists for doctors, because medical care is not quantifiable and as such the market is never fully binding.

In Joseph Caro's (16th century) Code, he notes that the doctor is selling "his wisdom." There is no way to limit the price for my wisdom by comparing the price of someone else's. No intrinsic equivalence exists between the minds and talents of various doctors. Theirs is not a square-peg-square-hole science to be learned by rote and performed by reflex.

5) Doctors who use their knowledge and authority in charitable ways are admired. The Talmud (Taanit 21b) tells of a doctor who was more respected in Heaven (based on certain events they took to be indicative) than the two greatest rabbis of that era. One of the rabbis was frustrated by this fact, so he went incognito to observe how the man ran his practice.

The following virtues were noted. He had people pay according to their means, but he made sure his staff did not notify him who was paying more or less, so he would be equally well-disposed toward all. He had a special garment made with a small hole, so he could give women injections without forcing them to disrobe. When he treated scholars, he not only forgave his fee, he would often slip them a few dollars.

Here we see a doctor behaving with charity and grace, but never under compulsion. When he forgives his fee out of respect, the quality of his service does not suffer.

By contrast, doctors who behave badly are criticized. The Mishna says (Kiddushin 81a) the best doctors end up in Hell, and the commentary of Rashi (1035-1105) breaks the critique down into several points which ring as true today: "They act as if they are impervious to illness and eat without regard to their own health. Their hearts are not humble before God. Sometimes their carelessness can cause deaths. They have the power to heal the poor and they often refrain."

This is the first part of our analysis. Before taking a specific look at the conditions prevailing in the United States, we have identified the outline of a traditional Jewish view of what constitutes a healthy medical system. Doctors should be empowered with the evaluation of a patient's health, they should be allowed to charge for their work accordingly and they should keep close contact with the patient to monitor the progress of their treatment.

Doctors as people, within their own volitional framework, should make an effort to be generous, to be respectful, to be cautious and to avoid arrogance and complacency. Both state and church (read: rabbinical authority) should respect the role of the doctor and not act to abridge his discretion.