Disputed Danger

An important principle in Hilchos Dayanim is, “Ein l’Dayan Ela Ma she’Einav Ro’os” – a Dayan can only rule based on the facts in front of him and what he believes to be correct. There are several ramifications, the most elementary being that when he is completely convinced that something is true based on his impression of the case, he should follow that conviction even if it is not based on the usual rules or parameters of judgment.

A physician is also sometimes called upon to be a “Dayan”. When he treats critically ill patients, he is ruling upon Dinei Nefashos. As the Tur puts it (Y.D. 336):

A person should not be involved in medical treatment unless he is knowledgeable and educated in the field and practices and there is no one senior available. But somebody unfamiliar with the nature of this work, and, similarly, if there is a senior practitioner present, should not be involved. This is a Kal vaChomer from all other laws and rulings of the Torah. How may a person rule on matters of possible life and death where there is somebody senior? If [in these circumstances] he involves himself at all, he is a spiller of blood.

Halacha grants authority to physicians to decide on many Halachic matters, such as when death has occurred and resuscitative efforts should stop, whether Chilul Shabbos is justified to treat dangerously ill patients,  and if a person needs to eat on Yom Kippur or must fast.

The matter of “Ne’emanus haRofim” (the trustworthiness and credibility of physicians) is a complex and lengthy issue. We have discussed it in several essays in the past. In this essay we will focus on one question: Does the principle of “Ein l’Dayan Ela Ma she’Einav Ro’os” also apply to physicians?

For instance, if two physicians disagree as to whether Chilul Shabbos is warranted for a patient, should the physician who believes it isn’t warranted desecrate Shabbos despite his opinion that it is not?^[1]

 The crux of the question is: Should a physician rely solely on his certainty and conviction and disregard the contrary opinions of other physicians or not? In the case of a Dayan, if he is absolutely certain and the claims of the other Dayan do not move him at all, he may maintain his view. Does the same apply to a physician?

This question can also arise in personal matters. If a person is utterly convinced of something and the doubts raised by others do not sway him, he must act according to his conviction. If witnesses testify that an animal was properly slaughtered but the Shochet knows for certain that he did not Shecht it, he certainly cannot eat it, even though the witnesses’ testimony permits others to do so. This is the rule of “Shavyei aNafshei Chaticha d’Issura”^[2] (Shu”t haRashba, 3:253, cited by the Tur at the beginning of Yoreh Deah). Even in cases that do not involve that level of certainty, if a person is convinced of a certain reality, he may act accordingly even if this contradicts the testimony of witnesses.^[3]

Obviously, in many cases the reality is unclear. It is not uncommon for a person to be utterly convinced of something (e.g., to the degree that he would bet a large sum of his money on a certain position). Still, it later turns out that he was mistaken or he discovers that he had been unaware of the full story. However, if he has no reason to believe that he is mistaken, nobody contradicts him, and he is judging according to his reading of the situation, he may act accordingly and is not accountable if he turns out to be mistaken. For example, if his actions or recommendations endangered a patient he is not liable so long as he truly acted according to his best judgment (see Shulchan Aruch, Y.D. 336 and Shach ibid.)

However, if others disagree with his assessment, should he take their position into account, at least l’Chumra? After all, unlike other matters of Halacha, we are concerned even for remote possibilities in Pikuach Nefesh. This is why “Ein Holchin b’Pikuach Nefesh Achar haRov – we do not follow the majority in cases of Pikuach Nefesh” (Shulchan Aruch O.C. 329). If so, should a physician not be concerned that the other physician is possibly correct, at least to the degree that it creates a Safek? Even if he is convinced of his own opinion, perhaps he should be willing to desecrate Shabbos on the small chance that he is mistaken.

The Gemara in Yoma (83a) discusses various scenarios of differences of opinion between physicians or between a patient and his physician regarding fasting on Yom Kippur. The Gemara states that if a sick person says that he does not need to eat, and even as many as one hundred physicians support him, if two physicians say that he must eat, we compel him to eat. This is also the final ruling of the Shulchan Aruch (O.C. 618) despite it being a Machlokes in the Gemara and Rishonim.

Why does it require two physicians to overrule the patient and one hundred other physicians? It is likely because the word of two physicians carries enough authority that everyone would consider their view to at least raise a Safek in the matter. Once there is a Safek, we are bound to apply the rule of Ein Holchin b’Pikuach Nefesh Achar haRov.

The Gemara (and Mishna Berura ibid. 11) explain that two physicians are needed because “Trei k’Mei’ah, v’Lo Azlinan Basar Rov Dei’os b’Sakanas Nefashos – two witnesses are equivalent to one hundred witnesses and we do not follow the majority view when there is a danger to life”. If we do not follow the majority view, why are two physicians necessary? It must be because the opinion of two people carries enough weight to raise a Safek, as explained above. The basis for believing two witnesses in general is because it is unlikely that they have both erred. Though two people can err, this is much less likely than one person being mistaken. The same reasoning can be applied here. If two physicians assert that the patient cannot fast, their position has to at least be a matter of consideration.

Therefore, if it is a matter where he could be mistaken, a physician should take into account the views of those who disagree with him, even if he is certain that he is correct. Since in their view it is a matter of Pikuach Nefesh, he must at least consider their view to raise a Safek in the matter. This Safek would obligate him even to desecrate Shabbos.

He should discuss the matter with them thoroughly and try to understand their opinion. The Shulchan Aruch (Y.D. ibid.) states clearly that while a physician has the authority to make life and death decisions, he should consult with more experienced physicians if possible. The Pischei Choshen (6:12), lists many scenarios in which a physician must consult with others, including the patient and his relatives, before coming to a final decision. The same would be true in our case.

[1] Obviously, if he believes that the other physician’s recommendation is likely to endanger the patient he may not participate. We refer to a “neutral” procedure that he believes unnecessary.

[2] [Editor’s Note: Literally, “he has made [the item] a forbidden object for himself”. In other words, it is a self-imposed prohibition.]

[3] He may only do so in private (see Chavos Da’as 185:2).