House Officers in Halacha-Part 3

            In last week’s essay, we presented a Teshuva from the Tzitz Eliezer to Dr. Avraham S. Avraham (14:35). R’ Waldenberg zt”l ruled that it is generally forbidden for medical trainees to practice invasive procedures like injections on patients because the resulting bruising and pain constitute an avoidable transgression of the prohibition against bodily harm (Chovel ba’Chaveiro), which is not nullified even by patient consent.

Dr. Avraham challenged the ruling from one of the Halachos of Mila. The Halacha is that one who has never performed a Bris before may not do so on Shabbos. This implies that on a weekday, he may do so even when a more qualified person is available, and even though, due to his lack of experience, he may cause unnecessary injury. Why then should we forbid him from administering injections?

The Tzitz Eliezer responded (ibid. 36):

After examining the matter, I do not see any contradiction to my words from that ruling. See the Shulchan Aruch Y.D. 266:7, which states: “Therefore, one who has never performed a Bris should not circumcise on Shabbos, lest he cause harm and thereby desecrate Shabbos.”

It is clear that the issue is not certainty that he will damage, but rather the possibility – “lest he damage.” Thus, on the contrary, this matches exactly the conclusion I presented in my Teshuva: when there is only a doubt, it is permitted on a weekday but forbidden on Shabbos.

And as for what I added – that even on a weekday, permission from the patient is still required – I find no contradiction from the Halacha regarding Mila. One could say the same there: that without the knowledge and consent of the father, a trainee should not be allowed to perform the circumcision.

Moreover, we find an even stricter rule concerning Mila than in our case. Here, since there is no concern of danger, I ruled that on a weekday, it may be permitted for a trainee to perform the procedure with the patient’s consent, since there is only a doubt whether he will cause additional injury. I also ruled that it is permitted when no more expert practitioner is available.

However, regarding Mila – since there is also an element of potential Sakana, the Chida (Chaim Sha’al 1:58–59) rules unequivocally that even on a weekday, a trainee who has never performed a Bris may not perform his first Bris unless an expert Mohel stands over him supervising. It makes no difference that he is certain that he knows how to do it. If no other Mohel is available, he is not permitted to perform the procedure, even if this results in a delay of the Bris. Furthermore, even if the father consents, we still do not permit it. In this situation, the father is not required to perform the Bris on the eighth day; instead, his responsibility is to postpone it until a qualified Mohel is available (see there).  This indicates that Mila is treated even more stringently.

This is the first point. Second, for two separate reasons, our case is not comparable to Mila at all, even according to the Halacha that a single circumcision is sufficient.

First, the Mitzvah of Mila is predicated upon accepting a remote risk of danger, unlike in ordinary situations, where, with matters of threat to life, “we do not follow the majority”. Although Mila inherently carries a risk,  Chazal nevertheless state in Maseches Gittin (57b) that the Pasuk “For Your sake we are killed all day long” (Tehillim 44) refers to circumcision, performed on the eighth day. Rashi explains: “We are killed all day,” for sometimes he (the child) dies.”

This means that with healthy infants, where there’s only a potential risk that a child might die from the injury and pain of circumcision, we are still commanded – and we routinely follow this command – to ignore this risk and proceed with circumcision. The Mohel needs to understand the Halachos and procedures of circumcision and acquire the skills to perform it expertly, but the risk of injury is not considered.^[1]

(The Sifri and Yalkut Shimoni on Parshas Va’eschanan similarly state in the interpretation of this Pasuk: “Is it possible to say that a person is killed every day? Rather, this refers to circumcision.” Likewise, in Shir haShirim Rabba 7: “R’ Chiya said: Why did the Chachamim establish Refa’einu as the eighth Bracha [of the Shemone Esrei]? It corresponds to Mila, which is [performed] on the eighth day… just as with illnesses, how many children have been circumcised and died?”)

Therefore, inherent risks are involved in performing Mila, and its fulfillment is included in “b’Chol Nafsh’cha”.^[2] Consequently, one should not generalize lessons from this case to everyday situations.

In addition, since the practice of circumcision is defined and limited, Chazal assessed that with proper knowledge of the laws, learning the craft from an expert Mohel, and observing the procedure many times, a person can know enough to begin performing Mila in practice. Therefore, once he states that he is confident in his ability, we may trust him and need not be concerned that he will cause [preventable] injury. He may begin to perform Mila (except on Shabbos, which is more stringent), provided that an expert Mohel stands over him and observes his work.

See also the Shevus Yaakov (Vol. 3 O.C. 25), who offers proof that if a person states that he wants to perform a Bris and knows how to do it, we need not be concerned. (His conclusion there is to permit him to circumcise even on Shabbos when no other Mohel is available, so as not to postpone the Mitzva.) For otherwise, how could we ever allow someone to perform his first circumcision on a weekday? There would be a concern about danger, specifically that he might render the child a K’rus Shafcha. We must say that we are not concerned that he will cause harm, and in uncommon matters, Chazal did not forbid it, see there.

Similarly, the Mahara”m Shik, O.C. 151, explains that if someone studied the Halachos and observed several circumcisions, from which he has learned how much must be excised, how P’ria is done, and all the requirements, he will certainly act with intelligence and understanding in most cases and perform the circumcision properly. (See there.)

See also the Chacham Tzvi 69, where he explains that, in the case of Mila, performing it even once is sufficient (for being considered competent), and we do not say that he is not yet considered an expert. The rationale is that, since there is concern for serious errors and danger to life, if he were not truly competent, he would not undertake to perform it at all, see there. (See also the comments of the Machatzis haShekel O.C. 331:10.)

Essentially, this is also stated by Tosfos in Megila 4a s.v. “v’Ya’avirena”, that no one performs circumcision unless he is proficient in it, because there is danger involved, see there. This was already noted in Shu”t Mahari Asad Y.D. 153, see his words.

Thus, it emerges that the very stringency in Mila is also what justifies treating one who declares that he is confident in his ability (after learning and observing many times from an expert) as competent and not being concerned that he may err. Therefore, one cannot compare or derive anything from this to apply it to our case (administering injections), because the reasoning goes in the opposite direction here. Since he is confident that no danger to life will result, he may say, “I am confident,” even though he does not yet truly know the task well, and he will also be less meticulous in his approach to avoid causing harm.

Therefore, at the very least, an expert must stand over him many times and instruct him how to perform the procedure in a way that does not cause excessive injury.”

R’ Shlomo Zalman Auerbach zt”l commented on this (Shulchan Shlomo Vol. 1, footnote 65, p134) :

All this applies only when it is necessary to fulfill the Mitzva, not to cause pain needlessly. Therefore, it seems that it is permitted only due to other considerations.^[3]

[1] [Editor’s note: R’ Waldenberg is essentially saying that while the Mohel must be skilled and knowledgeable, Halacha does not establish specific parameters for how much injury is permissible or expected. The implication is that the risk inherent in the Mila itself is accepted as necessary to fulfill the Mitzvah.]

[2] [Editor’s note: This alludes to the Mishna in Brachos (9:5): “v’Ohavto Eis Hashem E-lokecha b’Chol Levav’cha uvChol Nafsh’cha…Afilu Hu Noteil Es Nafsh’cha.”

[3] [Editor’s note: R’ Shlomo Zalman zt”l seems to be adding that need to fulfill the Mitzva of Mila only creates a Heter for an inexperienced Mohel to perform Mila, but not to condone or ignore the possibility that he will cause unnecessary pain to the infant. Therefore, R’ Shlomo Zalman concludes that there must be additional considerations at play that permit him to perform the procedure, and those same considerations could ostensibly be applied to a physician-in-training where the Mitzvas Mila is not a factor.]