that this is the standard. Certainly, in dealing with Sh'ma theoretical illnesses, there is no need to have a sufficient number of dialysis machines and respira- tors for the entire population. Such an undertaking a journal of Jewish responsibility would bankrupt society, could probably not be 22/434 MAY 15,1992 achieved, and would cause many other deaths, as society would, of necessity, cut back on other, non- medical, but important life and death safety and security concerns. Instead, a reasonable number of beds and amount of machinery, based on appropri- ate actuarial expectations of need must be provided. If as a result of unforeseen happenstance the system is temporarily unable to cope with a particular problem, the society cannot be held culpable. While this conclusion may seem harsh, no responsible Judaism and the health care crisis society could or should act otherwise. In halachic Barry Freundel terms that which is not Bifaneinu (before us) in the present reality cannot determine public policy or ; The elections of 1991 were unique in that medical else we will wind up harming real flesh and blood I care has never been so prominent an electoral issue. people with real flesh and blood needs out of fear of I The senatorial contest in Pennsylvania turned, possible events, the vast majority of which will never r significantly, on fears that adequate affordable occur. medical care is becoming progressively less available in this country, and, that therefore a national health Facing Reality with Jewish Idealism , insurance program is a desideratum, if not a neces- More to the point, even situations that are Bifaneinu, sity. At the same time Washington State created situations happening in real time, do not always great moral concern in the minds of many religious require that we do anything and everything possible, thinkers by toying with and then ultimately defeating precisely because of these same financial concerns a bill that would have allowed some people to go to and their human consequences. The Talmud prohib- their reward before God and nature had determined its ransoming hostages for more than their value , it was their time. (the price their labor would bring in a slave market). One reason offered to explain this cap is that the • Beyond the Hemlock Society and such others as Dr. financial burdens of excessive payments would cause Kevorkian, who support the latter measure on economic dissociation in society leading to poverty philosophical grounds, (and with whom Judaism can and perhaps even death for others as a result of the probably do nothing more than state its fundamental hostages achieving their freedom. Providing all disagreement), both issues were fueled by financial possible health care to all who are ill at the present concerns. Medical costs are so inordinately high, level of cost will, similarly, create victims of poverty especially in catastrophic chronic illness situations, and deprivation all over the land. that people's concerns that they be able to afford their own health care and that they not be driven If two are in the desert and one has a bottle of water, into bankruptcy by other people's needs, act to should the one drink he will live, should both drink, weaken one's fundamental respect for every possible both will die - the one with the bottle drinks. People second of every human being's life. who have their health and professional livelihood have the bottle. To take their means of survival Rabbi J. David Bleich, as previously published in away, even in order to provide health care to save, or these pages, (Sh'ma, 22/401) argued that just such a prolong the life of any and all those who are ill, does "Utopian" (his word) standard is normative to not square with these carefully articulated principles. Judaism. B'vimehilat kavod, with all due respect to one who has been a valued mentor, I must disagree Is there then no way out of the problem? Are we doomed to pit our most noble sentiments concern- BARRY FREUNDEL is the rabbi of the Georgetown ing life's infinite preciousness against the practical Synagogue, Kesher Israel, Washington, D.C. realities that force us to choose priorities, even if our i, 105 final choice is only inaction and passive euthanasia tice law and insurance as they impact our health care rather than the active euthanasia that I rejected in system would argue strongly for a return to Talmudic passing above. Is there, in fact, nothing else but the practice. Obviously such a shift would raise concerns moral unseemliness of such a position? about professional competence. The rabbinic system dealt with problems of this type in two ways. One, Thankfully, there is another way. We must be even simple negligence could be grounds for loss of prepared to solve the problem at its source, i.e. - the licensure and, therefore, of the capacity to practice. inordinate and grossly inappropriate costs of health (B. B. 21b) While later authorities debate whether a care. To frame the discussion we should remember pattern of simple negligence or only a single instance that restoring a person's health is a mitzvah, and that of error constituted enough provocation to evoke it is considered unseemly by our tradition to be paid such disenfranchisement, it is clear that such meas- to perform mitzvot Perhaps in this shockingly non- ures were pursued far more aggressively than we do mercenary standard, rather than in Rabbi Bleich's in our society. Second, in at least one case found in suggestion, we can find the Utopian dream to strive responsa literature, legal action was successfully for. brought in a second rabbinic court against the In more practical terms, three different ideas emerge licensing court for having accredited an incompetent from traditional sources and Jewish historic practice practitioner. Making the accrediting body bear that might help with the problem at hand. The first responsibility for the professional competence of the involves malpractice costs. The Jewish community, as early as 1800 years ago, licensed physicians. This licensing, done by the local rabbinic court, was, apparently, for the purpose of exempting qualified Sh'ma licensed physicians from malpractice claims in cases a journal of Jewish responsibility of simple negligence. While moral culpability for Editor Eugene B. Borowitz mistakes remained, and gross negligence and damage Administrator Alicia Seeger from unnecessary procedures were punishable to the Contributing Editors Michael Berenbaum, David Biale, J. full extent of the law, exempting licensed physicians David Bleich, Balfour Brickner, Steven M. Cohen, Elliot N. Dorff, from simple negligence claims was justified as Tikun Arnold Eisen, David Ellenson, Leonard Fein, Neil GiUman, Joanne Haolam (repairing the world). (T. Gittin 3:13, Sh. Greenberg Susan Handelman, Lawrence Hoffman, Paula Hyman, Ar., Yoreh Deah 336:1) Without such exemption, Lawrence Longer, Aaron Levine, Rela Geffen Monson, Deborah Dash Moore, David Novak, Riv-EUen Prett, Harold Schuhveis, EUen qualified people would be loath to enter the profes- Umansky, Elie Wiesel, Arnold Jacob Wolf, Walter Wurzburger, sion and expose themselves to such liability. Michael Wyschogrod Reducing Costs, Maintaining Quality Sh 'ma welcomes articles from diverse points of view. Hence, the opinions expressed do not necessarily reflect those of the editors. The rabbis did not know of our malpractice insur- Donations to Sh'ma Inc. are tax-deductible. Sh'ma is available in ance system that somewhat cushions the blow. microform from University Microfilms Internat'l., Ann Arbor, ML However, the present cost of that insurance, which Long book reviews appear quarterly; shorter ones regularly. seems to rise geometrically along with the size and Unsigned reviews are by the editor. frequency of awards and which is then passed on to Address all correspondence, subscriptions and change of address consumers, appears to be refragmenting the world. notices to Box 567, Port Washington, N.Y. 11050. FAX: 516-767- In some situations, such as that of Ob/Gyns in 9315. Florida, the system has nearly broken down, with Sh'ma (ISSN 0049-0385) is published bi-weekly except June, July doctors, as predicted by the rabbis, fleeing the state and August, by Sh'ma Inc. Regulatory "Office of Publication," 927 or their practice because of the extreme vulnerability Pt. Washington Blvd., Port Washington, N.Y. 11050. Subscription $24 for two years in U.S.; $15 a year overseas. Ten or more to one they feel to such excessive awards under the state's address, $8 each year. Retired or handicapped persons of laws. More generally, the malpractice insurance restricted means may subscribe at half price. system has only made the fragmentation that concerned the rabbis happen in slow motion and in a Copyright ©1992 by Sh'ma Inc. somewhat different way (i.e. by producing unman- POSTMASTER: Please forward Form 3579 to Box 567, Port ageable costs) than they anticipated. But breakdown Washington, N.Y. 11050. there certainly is. Second class postage paid at Port Washington, N.Y. and at additional entry Bethpage, N.Y. Looking at the reality and consequences of malprac- May 15,1992

106 practitioner should keep things relatively more burden to pay for such a system will bankrupt kosher than today's lax oversight which all too often everyone else. Finally, socialized medicine lowers allows the incompetent to continue practicing. salaries, thus potentially removing some of the best and brightest from the profession. Yet, without such Limiting direct costs for health care is also part of a system how can everyone get access to necessary Jewish tradition. Once again, the premise is that medical services? ! returning someone to health is a mitzvah. One cannot be paid for performing a mitzvah beyond Judaism, historically, has advocated a mixed system. ! schar batala (the amount one would accept to not Communities appointed doctors to serve the needs work, assumed to be significantly less than one of their members. Base salaries were paid out of would require to go to work). Adopting such a communal funds. In exchange the doctor treated all i standard would, obviously, drop medical costs comers up to his patient capacity. Poor people were through the basement. However, rabbinic law treated for free or nearly so, while rich people were understood that such a standard would chase away charged for the service. This mixed system would i quality people. Therefore, a doctor was allowed to seem to avoid or mitigate most of the problems make a prior agreement with a patient as to cost of associated with either of the more extreme options, , services that exceeded these guidelines. (Sh. A., while providing care for all who need it • Yoreh Deah 336:2-3) Rationale for this permissive Again there is some legitimate concern for potential jt stance was found in the fact that a doctor is selling ll his training and expertise both of which are priceless. abuses, especially for refusal to treat or for proffer- | Significantly, no such exemption exists for the cost of ing less professional service to those who pay less. >' drugs and other medical material. Therefore, The local rabbinic court with its licensure and regulatory capacity was charged with making life excessive costs leading to profits of more than 1/6 difficult for abusers. Moral suasion would be brought i (the normal halachically allowable profit margin in to bear as well. Typical of such values education is any business venture) in these areas are prohibited. the Talmudic maxim Tov sheberofim legehinom (the Social Responsibility with Individuality best of physicians go to Hell), which Rashi under- stands to be a criticism of doctors who refuse to treat Further, local Rabbinic courts are charged with the poor. Contemporary medical practice would ' keeping prices for all important commodities and need to find the modern equivalent of this oversight ') services within appropriate and reasonable limits, and education process in their regulators, supervi- 'j These courts would act when compelled by exorbi- sors and medical schools. Perhaps, we might allocate I tant prices leading to unavailability of necessary a required number of poverty cases to each doctor to | services. The court did not set prices, rather it set prevent such abuses. This is similar to pro-bono work j ceilings on prices. In this way a balance was main- in the legal profession. tained between availability, competition and profit within as free a market as possible. This regulatory If we do not adopt suggestions such as those de- ; activity could include physicians' fees as well, scribed that would make medical care available to, i Contemporary application of these principles would and not the causative factor in, people living below entail closer regulatory monitoring of all aspects of the poverty line, not only doctors but our entire i health care with limited price ceilings being applied health care system will end up in the "hot place" | gently and judiciously as needed. described by the Talmud as the final consequence of inappropriate proffering of medical services. • f We come, finally, to the issue of socialized medical f services versus the more familiar free market in » medical care. Certainly the hottest current debate in i the health care crisis is on this precise point Social- The check, perhaps, is in the mail? ; ized medicine makes medical care available to all, If you can manage a donation of $200 or more well 1 but one must ask, how quickly and with what level of gladly send you a specially inscribed copy of my new competence? What degree of personal interaction book Renewing the Covenant. Donors of $6.81 or between doctor and patient exists in such a system? more (our inflated "dollar" plus costs) will receive | Further, medical progress seems to slow down, our 64 page bookletBuddhist-Jewish Dialogue. health care systems seem to get clogged and bogged I down, and there is real fear that, either systems of Send your check to P O Box 567, Pt Washington, ! this type will eventually go bankrupt, or that the tax N.Y. 11050. (E.B.B.) 207