An excerpt from “Paying for Medical Care: A Jewish View” by Rabbi Elliot N. Dorff, Kennedy Institute of Ethics Journal 7.1 (March 1997) 15-30
Also discussed in Rabbi Dorff’s book, Matters of Life and Death: A Jewish Approach to Modern Medical Ethics
Before discussing the cost of health care, we must establish the nature of the duty to provide it. According to Jewish law, there is a clear obligation to try to heal, and this duty devolves upon both the physician and the society. This, theologically, is somewhat surprising. After all, since God proclaims in the Bible that He will inflict illness as punishment for sin and since, conversely, God announces Himself as our healer, one might think that medicine is an improper human intervention in God’s decision to cause and to cure illness.
The Rabbis were aware of this line of reasoning, but they counteracted it by pointing out that God Himself authorizes us to heal. In fact, they maintain, God requires us to heal. They found that authorization and that imperative in two Biblical verses, Exodus 21:19-20, according to which an assailant must ensure that his victim is “thoroughly healed,” and Deuteronomy 22:2, which states: “And you shall restore the lost property to him.”
The Talmud understands the Exodus verse as giving “permission for the physician to cure.” On the basis of an extra letter in the Hebrew text of the Deuteronomy passage, the Talmud declares that that verse includes the obligation to restore another person’s body as well as his or her property, and hence there is an obligation to come to the aid of someone in a life-threatening situation.
On the basis of Leviticus 19:16, “Nor shall you stand idly by the blood of your fellow,” the Talmud expands the obligation to provide medical aid to encompass expenditure of financial resources for this purpose (B. Bava Kamma 85a; Sanhedrin 73a).
While each Jew must come to the aid of a person in distress, and while an assailant has the direct duty to cure his victim, Jewish law recognizes the expertise involved in medical care and thus here, as in other similar cases, the layman may hire the expert to carry out his obligations. The expert, in turn, has special obligations because of his expertise. Thus Joseph Karo (1488-1575), author of the Shulhan Arukh , an important sixteenth-century code of Jewish law, says:
The Torah gave permission to the physician to heal; moreover, this is a religious precept and is included in the category of saving life, and if the physician withholds his services, it is considered as shedding blood (S.A. Yoreh De’ah 336:1).
That the community shares in this responsibility with the physician becomes clear from several sources. So, for example, the Talmud describes 10 services that a city must provide to make it fit for a Jewish scholar to live there, and the care of a physician is one of them:
A scholar [of Torah] should not reside in a city where [any of] the following ten things is missing: (1) a court of justice that [has the power to] impose flagellation and decree monetary penalties; (2) a charity fund collected by [at least] two people and distributed by [at least] three; (3) a synagogue; (4) public baths; (5) a privy; (6) one who performs circumcisions (a mohel ); (7) a physician; (8) a scribe [who also functions as a notary]; (9) a [kosher] butcher; (10) and a school-master. Rabbi Akiba is quoted as including also several kinds of fruit [in the list] because they are beneficial to one’s eyesight. (Talmud Bavli, Sanhedrin 17b)
Since each Jewish community needed a rabbi to interpret Jewish law and to teach the tradition, this list of requirements effectively makes it every Jewish community’s responsibility to furnish medical services. In the Middle Ages, Nahmanides (1194-1270) bases this communal duty on the commandment in the Torah, “You shall love your neighbor as yourself” (Lev. 19:18), reasoning that just as you would want medical care when you need it, so you need to provide it for others when they need it
(Nahmanides 1963, vol. 2, p. 43, in Hebrew).
THE COST OF MEDICAL CARE
Normally Jewish law permits a physician to charge a fee for his services. Indeed, the Talmud opines that “a physician who charges nothing is worth nothing!” (B. Bava Kamma 85a). At the same time, there is great concern that the poor should have access to medical services. The Talmud thus approvingly sets forth the example of Abba, the bleeder, who
placed a box outside his office where his fees were to be deposited. Whoever had money put it in, but those who had none could come in without feeling embarrassed. When he saw a person who was in no position to pay, he would offer him some money, saying to him, “Go, strengthen yourself (after the bleeding operation).” (B. Ta’anit 21b)
There are similar examples among medieval Jewish physicians, and the ethic must have been quite powerful because it is not until the nineteenth century that a rabbi rules that the communal court should force physicians to give free services to the poor if they do not do so voluntarily
(Rabbi Eliezer Fleckeles, Teshuvah Meahavah , III, on S.A. Yoreh De’ah 336).
The same duty applies to the community as a whole. Therefore the sick enjoy priority over other indigent persons in their claim to private or public assistance. Thus, Joseph Karo records the view that while contributions to erect a synagogue take precedence over ordinary forms of charity, even the synagogue’s needs must give way to the
requirements of the indigent sick. The sick, in turn, may not refuse such
aid if they require it to get well
(S.A. Yoreh De’ah 249:16, 255:2).
Reliance on the generosity and ethical sensitivity of physicians for the care of the poor was the norm, but there were cases where Jewish communities organized medical care in a form of socialized medicine. In medieval Spain, for example, Jews played a prominent role in the state’s program of socialized medicine, and in other places Jewish communities on their own hired surgeons, physicians, nurses, and midwives among their staff of salaried servants (Cf. Baron 1942, vol. II, pp. 115, 329).
Whatever the arrangement, the community as well as individual doctors were under the obligation to heal, an obligation that was taken very seriously.
In our own day, these questions no longer affect the poor alone. Most people simply cannot pay for some of the new procedures, no matter how much money they have or can borrow. The size of the problem makes even conscientious and morally sensitive physicians think that any individual effort on their part to resolve this issue is useless. Moreover, the costs that they themselves have assumed in gaining a modern medical education must somehow be repaid–to say nothing of malpractice insurance, overhead for their offices and for the hospitals in which they practice, salaries for staff, and the like. The question of paying for medical care in our society therefore becomes a critical issue.
The Jewish principles enunciated above–namely, that each of us individually and collectively has a responsibility to cure and that, conversely, society has the duty to balance this obligation with the other services that it must provide–are important guidelines for the ongoing discussion in the United States on the cost of medical care.
Other sources that inform the Jewish view of the provision of health care do not come directly from the world of health care, but rather from Jewish law on redeeming captives from captivity, saving people from drowning, and on providing for the poor. That is because until this century, medicine could do very little to restore health and save people from dying, but rescuing a person from captivity, drowning, or starvation and exposure were very real ways in which people could save other people’s lives. Thus the precedents relevant to the current issues of the cost of health care come from all of these areas.
According to the Shulhan Arukh, withholding medical care is akin to murdering someone, and physicians have a primary duty to provide medical care. Thus, systems of managing care that discourage doctors from carrying out this obligation are Jewishly illegitimate, or at least suspect. Capitation, for instance, gives doctors a sum of money for each patient per year regardless of the amount of care they provide; that makes it economically disadvantageous for doctors to treat patients extensively because the more time they spend with a patient, the less they earn per patient.
Such a system can only be reconciled with the fundamental Jewish duty of physicians to care for their patients if there is some way to offset this economic pressure against treating so as to guarantee that doctors will nevertheless provide good care. Modifications of the physicians’ professional code of ethics, self-regulation of hospitals and doctors in a mode similar to university accreditation, and government regulation may all be part of what is needed to spell out accepted standards of care. However the standards are established and announced, capitation would inevitably require more frequent peer review than now occurs. If such measures proved unsuccessful in counterbalancing the economic pressures of capitation so as to guarantee a reasonable level of care, Jewish principles would forbid capitation as a violation of the duty to provide medical care.
In addition, the underlying duty of physicians to provide care means that they bear at least some responsibility for making health care available to those who cannot afford their normal fees. This imposes on doctors the obligation to do some work at reduced rates or for free. Like other people, though, doctors have a right to earn a living, and Jewish law imposes a limit on physicians, no less than on other Jews, as to the
percent of their income they may donate to charity… (Mishneh Torah, Laws of Gifts to the Poor 7:5; see also, S.A. Yoreh De’ah 248:1-2).
I like the discussion. I’m not sure that capitation per se can be forbidden, so simply, as there are also general precepts to sustain the economic survival of a community, and to deliver basic standards of care seems to be as much of an imperative as others.
We might think that as long as it does not risk its collapse, a community priority for the care funds it has at its disposal, is to care.
Does that mean it needs to sink into reserves or cut other services? Critical services like self defence, security and education do not go by the wayside.
Mostly I’m concerned to see capitation picked out as a “forbidden” funding mechanism and that is simply wrong. I am far more certain we would be very uncomfortable with rationing via false sense of scarcity as may often be seen practiced on the UK side of the pond inside the “free” system, or the practice of banning people from top up payments to get the care the community cannot quite afford to provide if required at a particular time. A capitation which delivers middat Sdom (the Procrustean bed being a standard budget with the guest stretched or chopped to fit) is certainly not our way.
But capitation incentives are known to be a very useful way to improve healthcare for floor care – eg screening for breast cancer, which might otherwise go untested. Absent a capitation payment and targets contingent on volume delivery, that kind of individual treatment to vulnerable groups is just not delivered, especially if fees can’t be funded personally, in a system mostly dependent on fee payers. The poor can lose out if they represent extra overhead and less return than other, discretionary treatments, so a capitation fee and volume target gets an easier throughput that physicians can work with.
Any good health service should mix it’s provider incentives (such as blanket unit capitation or its opposite, fee for service) to encourage care to be provided – not over provided, and not underprovided.
What’s the Jewish approach to over provision? Or to under provision? What is “enough” provision if we are commanded to save life?
A system-wide policy designer has the unenviable task of seeing how doctors and patients behave, whether they use all they can, or what they need, and whether some are left by the wayside.
Capitation is good for delivery of a minimum set of care, and less good at dealing with supplementary needs. In pure capitation systems, a lot of the effort and anxiety then centres on how to fund very high unusual-supplemental costs, like emergency care or cancer care, usually through extra insurance or state backed funds (across Europe and eg Australia). But capitation is still very good at making sure everybody gets delivery of a planned minimum, rich or poor, sick or healthy.
By contrast, in a fee for service regime, basic care delivery especially to the poor, is extremely weak and prone to “supplier induced demand” as they have seen in Australia, with overdelivery and over expenditure for the same outcomes.
So, I am quite sure Jewish law would not so quickly just ban capitation, although we might insist it isn’t the sole scheme of spend, but rather, demand it provide threshold of “floor” services, and find another way to fund care beyond that basic set.
With that in mind can I ask that we also try to understand the emphasis of medical treatment in Jewish thought, is it about worthy but ineffective activity, or about outcomes?
What about encouraging health avoidance, where we know good diet avoids years of healthcare costs?
If so, what scope is there for directing care resources so that they target funds on the right outcomes, and do we set the goal as maximising lifesaving, dealing with the chronically sick, or something else?
It would be very interesting to explore the overall requirement for communal priority of funding allocation, and the ethics of outcome based planning.
I would also hope the group will consider more carefully how specific types of ‘failure’ resulting from different payment schemes, as well as different types of lifesaving success, from other payment schemes, and desired mix, could work out in line with Jewish ideals.
After all, we invented prozbul to ensure a viable economic life, long befor economists coined the term “market failure” and I don’t know what we might have made of modern transaction costs, but somehow I doubt 12%+ in sales costs as we see in the USA today, can be an acceptable imposition, if so, how do we run a “shuk” without getting into trouble? Does Judaism point the way to capped profits (I think it might…)?