Bava Kamma 24b ~ Dogs, Bites and Liabilities

בבא קמא כד, ב

ת"ש שיסה בו את הכלב ... פטור מאי לאו פטור משסה וחייב בעל כלב? לא אימא פטור אף משסה אמר רבא אם תמצי לומר המשסה כלבו של חבירו בחבירו חייב שיסהו הוא בעצמו פטור מאי טעמא כל המשנה ובא אחר ושינה בו פטור

Come an hear [a proof from a Mishnah in Sanhedrin]:

If one incited a dog [against another person]...he is not liable. Who is "not liable"? Does this mean that the inciter is not liable, but that the dog's owner is liable? No. Say that this Mishnah means that even the one who incites is not liable. Rava said the following: Even if you conclude that when a person incites a dog against his fellow, [that the owner is liable], if the victim incited the dog against himself, [and brought the attack upon himself, then in this case the dog's owner] is also not liable. What is the reason for Rava's ruling? Because whenever a person acts in an irregular way, and another person comes along and acts in an irregular way against him, [the second party] is not liable.

JEWS AND DOGS

From this passage in today's daf yomi, we learn a couple of things about dogs in the period of the Mishnah. First, we learn that Jews, or those who interacted with Jews, kept them. And second, that some of them were very bad dogs.  

Jews and dogs don't traditionally get along. Later in our tractate, (Bava Kamma 83a,) Rabbi Eliezer does not mince his words: 

רבי אליעזר הגדול אומר: המגדל כלבים כמגדל חזירים .למאי נפקא מינה? למיקם עליה בארור

Rabbi Eliezer the Great said: Someone who breeds dogs is like someone who breeds pigs. What is the practical outcome of this comparison? To teach that those who breed dogs are cursed...

The American Veterinary Medical Association estimates that in the US there are about 43 million households that own almost 70 million dogs; that means over one-third of the households in the US own a dog.  (Fun Fact: Cats are owned by fewer households in the US, but are more often owned in twos or more. That means that there are more household cats - some 74 million - than there are dogs.) In the UK, a 2007 study estimated that 31% of all households owned a dog. In Israel, over 10% of all families own a dog. 

BAD DOGS

Most dogs are wonderful pets, but a few are really bad. In a 10 year period from 2000-2009, one paper identified 256 dog-bite related fatalities in the US. Of course that's a tiny number compared to the overall number of dogs owned, but that's still 256 too many; the tragedy is compounded when you read that over half the victims were less than ten years old. 

Partaken, GJ. et al. Co-occurrence of potentially preventable factors in 256 dog bite–related fatalities in the United States (2000–2009). Journal of the American Veterinary Medical Association 2013. 243:12: 1726-1736.

“Az a yid hot a hunt, iz oder der hunt keyn hunt nit, oder der yid iz keyn yid nit

If a Jew has a dog, either the dog is no dog, or the Jew is no Jew”

— — Sholem Aleichem. Rabtshik. Mayses far Yidishe Kinder. Ale Verk. Warsaw 1903

Although fatalities from dog bites are rare, dog bites are not. Over my career as an emergency physician I must have treated hundreds of patients with dog bites. And my experience is pretty typical. One recent study estimated that more than half the population in the US will be bitten by an animal at some time, and that dogs are responsible for 80-90% of these injuries. 

GOOD DOGS

Although Jews are thought not to have a historical affinity for dogs, one theologian has reassessed the evidence. In his 2008 paper Attitudes toward Dogs in Ancient Israel: A Reassessment, Geoffrey Miller  suggests that in fact dogs were not shunned in Israelite society. He notes that the remains of over a thousand dogs were discovered in a dog cemetery near Ashkelon dating from about the 5th century BC. It was described as "by far the largest animal cemetery known in the ancient world" by Lawrence Stager who also pointed out that during this period, Ashkelon was a Phoenician city - not a Jewish one. Miller surveys several mentions of dogs in the Bible and the Book of Tobit, and concludes that at least some Israelites "valued dogs and did not view them as vile, contemptible creatures." Joshua Schwartz from Bar-Ilan University surveyed Dogs in Jewish Society in the Second Temple Period and in the Time of the Mishnah and Talmud (a study that marked "...the culmination of several years of study of the subject of dogs...").  He found that while "most of the Jewish sources from the Second Temple period and the time of the Mishnah and Talmud continue to maintain the negative attitude toward dogs expressed in the Biblical tradition" there were some important exceptions. There were sheep dogs (Gen. Rabbah 73:11) and hunting dogs (Josephus, Antiquities 4.206) and guard dogs (Pesahim 113a), and yes, even pet dogs (Tobit, 6:2), though Schwartz concedes that "it is improbable that dogs in Jewish society were the objects of the same degree of affection as they received in the Graeco-Roman world or the Persian world."

“A certain person invited a sage to his home, and [the householder] sat his dog next to him. [The sage] asked him, ‘How did I merit this insult?’ [The house-holder] responded, ‘My master, I am repaying him for his goodness. Kidnappers came to the town, one of them came and wanted to take my wife, and the dog ate his testicles.”

— PT Terumot 8:7

Liability for Dog Bites in the US

In contrast to the talmudic rule requiring three occurrences of goring or biting before an animal is considered "forewarned" and so liable to pay full damages, many states have a "one bite and you're out rule". But New York, for example has a law that has aspects of the talmudic category of mu'ad, at least according to this opinion:

New York Agriculture & Markets Code section 123 (part of the Laws of New York) addresses a dog owner's potential civil liability when the owner's dog injures another person. The statute covers both injuries caused by bites and non-bite injuries, like those suffered when a dog knocks a person to the ground. The statute states that the owner of a "dangerous dog" is liable if the dog causes injuries to another person, to livestock, or to another person's companion animal, like a disability service dog.

The statute defines a "dangerous dog" as one that:

 - attacks and either injures or kills a person, farm animal, or pet without justification, or

 - behaves in a way that causes a reasonable person to believe that the dog poses a "serious and unjustified imminent threat of serious physical injury or death."

However, the statute specifically states that a law enforcement dog carrying out its duties cannot be considered a "dangerous dog." 

Under New York's "dangerous dog" statute, a dog owner is "strictly liable" for all medical bills resulting from injuries caused by a "dangerous dog." This means that if the dog is found to be dangerous, the dog's owner must pay the injured person's medical bills (or bills for the treatment of injuries to livestock or pets) even if the dog's owner had taken reasonable precautions to control or restrain the dog. For other types of damages resulting from a dog bite or dog-related injury, the injured person must usually prove that the dog's owner was negligent. In other words, the injured person must show that the dog's owner failed to use reasonable care to prevent the injuries from occurring (failed to take reasonable steps to control or restrain the animal, in other words). For example, suppose that a dog slips out of its own yard, breaks down the neighbor's fence, and enters the neighbor's yard, where it bites the neighbor. While the injured neighbor may be able to recover the costs of medical care under New York's strict liability rule, the neighbor cannot recover the costs of replacing the broken fence unless the neighbor can show that the dog's owner failed to take reasonable steps to keep the dog in its own yard. 

The legal category of mu'ad - an animal (or more precisely here, a dog) that was forewarned as being a danger is clearly noted in New York Agriculture & Markets Code section 123. The law allows  charges to be filed if:
 - the dog was previously declared to be a "dangerous dog"
 - the owner negligently allows the dog to bite someone, and the injury suffered is a "serious injury."

If a "dangerous dog" overcomes an owner's attempts to restrain it and kills a person, the owner may also be charged with a misdemeanor. Any owner who faces a criminal charge relating to a dog bite might also face civil liability if the injured person decides to sue in civil court.

Here's how the lawyer Mary Randal explains the factors that courts take into account when deciding if a dog owner is liable for the damages of a pet. See how many times there is an echo to the talmudic concept of mu'ad:

Previous bites. This one is pretty easy. If a dog bites once, the owner will forevermore be on notice that the dog is dangerous. But even this is not as straightforward as it may appear; for example, at least one court has ruled that if a puppy nips someone, its owners are not necessarily on notice that the dog is dangerous. (Tessiero v. Conrad, 588 N.Y.S.2d 200 (App. Div. 1992).)

Barking at strangers. If a dog, usually kept in the house or a fenced yard, barks at strangers but has never threatened a person, its owners will probably not be liable if it bites someone. (See, for example, Slack v. Villari, 476 A.2d 227, cert. denied, 482 A.2d 502 (Md. 1984) and Collier v. Zambito, 1 N.Y.3d 444 (2004).)

Threatening people. A dog that often growls and snaps at people who come near it when out in public, but hasn't ever actually bitten someone, is a different case entirely. The dog's actions should put its owner on notice that the dog might bite someone. If the dog does bite, the owner will be liable. (See, for example, Fontecchio v. Esposito, 485 N.Y.S.2d 113 (1985).)

Jumping on people. The owner of a friendly, playful, and large dog, which is in the habit of jumping on house guests, will be liable if the exuberant dog knocks over a friend who comes to the door one day. The owner knew that the dog behaved this way and might injure someone because of its size.

Frightening people. If a dog likes to run along the fence that separates his yard from the sidewalk barking furiously, or chases pedestrians or bicyclists, the owner may be liable if the dog causes an injury. At least one court, however, has ruled that an owner wasn't responsible for foreseeing that a barking dog could frighten someone so much she would run into the street. (Nava v. McMillan, 123 Cal. App. 3d 262 (1981).)

Fighting with other dogs. If a dog that is gentle with people has a history of fights with other dogs, that's probably not enough to put the owner on notice that the dog might bite a person. Courts usually recognize that canine society has its own rules, and the way a dog behaves under them isn't a reliable predictor of how it will act toward humans. (As one court put it, the “question was the dog's propensity to attack a human. The canine code duello is something else. That involves the question of what constitutes a just cause for battle in the dog world, or what justifies a resort to arms, or rather to teeth, for redress.” (Fowler v. Helck, 278 Ky. 361 (1939).)

Fight training. If a dog has been trained to fight, a court will almost certainly conclude that the owner should have known that the dog is dangerous. (This conclusion is disputed by some people experienced with dogs used for fighting, who maintain that there is no connection between a dog's drive to fight other dogs and its aggression toward people. However, a dog that has been agitated and abused when used for fighting may be dangerous.)

Complaints about the dog. If neighbors or others complain to the owner that a dog has threatened or bitten someone, the owner would certainly be on notice that the dog is dangerous. But in one Alabama case, where a dog's owner had been scolded by a neighbor for having a dog that was a "nuisance," the court ruled that the owner did not have any knowledge that his dog was dangerous. (Rucker v. Goldstein, 497 So. 2d 491 (Ala. 1986).)

The dog's breed. Generally, courts don't consider dogs of certain breeds to be inherently dangerous. So if you have a German shepherd, a court probably won't conclude that you should have known, just because of the dog's breed, that it might injure someone. (See, for example, Roupp v. Conrad, 287 A.D.2d 937, 731 N.Y.S.2d 545 (2001).) But in some places, pit bulls and a few other breeds have been defined by law as dangerous dogs.

VERY GOOD DOGS

Whatever your feeling about dogs, lets's be sure to remember that they serve alongside soldiers in the IDF, where they save lives. In 1969, Motta Gur (yes, the same Mordechai "Motta" Gur who commanded the unit that liberated the Temple Mount in the Six Day War, and who uttered those immortal words "The Temple Mount is in our hands!" הר הבית בידינו‎,) wrote what was to become a series of children's books called Azit, the Canine Paratrooper (later turned into a popular feature film with the same title. And now available on Netflix. (Really. It is available on Netflix.)  But IDF dogs don't just feature in fiction. They are a fact, and an amazing addition to the IDF, where they make up the Oketz unit.  Here's a news report (in Hebrew) about the amazing work these dogs - and their handlers- perform. These are very good dogs indeed.

Bava Kamma 18b ~ Braying Donkeys and Broken Glasses

Do you remember the ad for Memorex video and cassette tapes that aired in the 1970s? It showed the late great Ella Fitzgerald breaking a glass with her pitch perfect voice, and was followed by the catchy jingle “is it live, or is it Memorex?” Here’s the ad, to refresh your memory.

Tomorrow's page of Talmud mentions the ability of roosters, horses and donkeys to shatter glassware and pottery with their cries:

בבא קמא יח, ב

תא שמע דתני רמי בר יחזקאל תרנגול שהושיט ראשו לאויר כלי זכוכית ותקע בו ושברו משלם נזק שלם ואמר רב יוסף אמרי בי רב סוס שצנף וחמור שנער ושיבר את הכלים משלם חצי נזק

Come and learn:Rami bar Yechezkel taught a Baraisa that states: If a rooster put its head into the hollow of a glass vessel, and cried out and broke it, the rooster’s owner pays full damages.  But Rav Yosef said that they say in the academy of Rav: if a horse neighed or a donkey brayed and broke vessels with the noise, the animal’s owner pays only half damages..

Rashi is very clear (and this does appear to be the plain meaning of the Talmud) that these cases do not refer to damage that was caused by the animal’s body, but rather by its voice.

ותקע בו ושברו. שנבקע הכלי מחמת הקול:

סוס שצנף ושיבר כלים. בקולו וכל הני צרורות נינהו דכחו הוא

 Which raises the question: can you actually break a glass with your voice – and can animals do so?

How to shatter a glass with perfect pitch

It would appear that Ella Fitzgerald’s Memorex feat was achieved by sleight of hand – she did in fact break the glass, but her voice was amplified.  Which is kind of cheating. But as The Scientific American explained, this trick should be physically possible:

Every piece of glass has a natural resonant frequency—the speed at which it will vibrate if bumped or otherwise disturbed by some stimulus, such as a sound wave—as does every other material on Earth. Glass wine goblets are especially resonant because of their hollow tubular shape, which is why they make a pleasant ringing sound when clinked. If a person sings the same tone as that ringing note—a high C in legend but in reality the matching pitch could be any note—the sound of her voice will vibrate the air molecules around the glass at its resonant frequency, causing the glass to start vibrating as well. And if she sings loudly enough, the glass will vibrate itself to smithereens. 

But singing the correct note does not guarantee breaking the glass. For that to happen, there needs to be microscopic defects in it that will buckle and fracture under pressure. The volume can help a lot too (hence the amplification in Ella’s Memorex commercial), because the louder the note, the more forceful the pressure exerted on the glass molecules.

The ability for a human voice to break a glass – usually a wine glass – was considered by many to be an urban legend, but it is in fact perfectly feasible. If you are a trained opera singer.  In 2005 the entertaining television series Mythbusters dedicated an episode to exploring the myth, and concluded that it is indeed possible. In so doing, the show provided the first documented evidence that a natural, un-amplified human voice can break a glass. It took twenty attempts, and a voice that reached 105 decibels (that's louder than jackhammer) and could hit a perfect 566 Hz.  Here's a montage that recaps the attempt. If you are impatient, fast-forward to minute 2.05

All of this raises the question: how on earth could a braying donkey or crying rooster achieve the same feat? It takes incredible volume, a perfect pitch, and close proximity to be able to pull of a stunt like that. Perhaps that's why the Baraisa noted that the rooster would have to have put its head inside the hollow of the glass vessel (שהושיט ראשו לאויר כלי זכוכית). But even so, there's the volume and pitch thing.  Given what we know about the difficulty in shattering a glass with the human voice, talmudic donkeys and roosters must have had incredible musical talent.  Or perhaps the pots and glasses used in the talmudic era tended to break much more readily than do ours, and the animals were convenient to blame. It's too bad that the 282nd episode of Mythbusters, which aired in March of this year, was its last. Perhaps they could have replaced Jaime Vendera, the vocal coach who broke the glass, with a couple of chickens and a donkey.  Now that would be worth watching.

Bava Kamma 15b ~ Where the Wild Things Are

 בבא קמא טו,ב

הזאב והארי והדוב והנמר והברדלס והנחש הרי אלו מועדין רבי אלעזר אומר בזמן שהן בני תרבות אינן מועדין והנחש מועד לעולם

The the wolf, the lion, the bear, the leopard, the bardalis and the snake are considered to be forewarned [so that if they cause damage their owner must pay in full].  R. Eleazar says: if they have been tamed, they are not forewarned; the snake, however, is always forwarned.

Wild Animals gone...Wild

In July 2012, while touring a hospital in Johannesburg, I was given a brutal reminder of the dangers posed by the wild animals were were about to see on safari. In the Intensive Care unit and fighting for his life was a young American named Andrew Oberle, who had come to South Africa to study the chimps. Oberle, a twenty-six year old student, had left the group he was guiding and entered a 'no-go' zone. Two chimps interpreted this as an act of aggression, grabbed the young American, and dragged him into their enclosure. By the time he was finally rescued, Oberline had suffered these injuries: 

The chimps tore away his scalp down to the skull. His ears and nose are gone, and he can’t close his right eye. He has wounds on his trunk and all four limbs. He’s lost most of his fingers, and his right forearm has been eaten, the tendons gone. He’s lost parts of his feet, and his right ankle is destroyed.

(Oberle survived his attack, and in December 2017 he talked about it on podcast which you can listen to here.)

Then there was bear enthusiast Timothy Treadwell (who later became the subject of an excellent 2005 documentary by Werner Herzog).  Treadwell was a self-described bear conservationist, although he lacked any formal training in the field and was frequently at odds with the Park Service. In October 2003, Treadwell and his girlfriend were mauled and eaten by a Grizzly bear in Alaska's Katmai National Park. Thus far, two examples of wild animals acting, well, wild.  

What about training these wild animals to perform tricks?  Well, there's a cautionary tale in that too. Do you recall the great illusionists Siegfried Fischbacher and Roy Horn, the pair of magicians who became world famous for their performances with white lions? For over thirteen years Siegfried and Roy performed at the Mirage Hotel in Las Vegas, until um, they stopped. On October 3, 2003 Roy was bitten in the neck by a seven year old tiger named Manticore, who dragged him off the stage "like a ragdoll." He almost bled to death, and remains partially paralyzed as a result of the attack.  So how could Rabbi Eleazar possibly claim that animals as wild as a lion or a bear ever be considered tame or domesticated? Well, read on...

Domestication

The Encyclopaedia Britannica defines domestication as

the process of hereditary reorganization of wild animals and plants into domestic and cultivated forms according to the interests of people. In its strictest sense, it refers to the initial stage of human mastery of wild animals and plants. The fundamental distinction of domesticated animals and plants from their wild ancestors is that they are created by human labour to meet specific requirements or whims and are adapted to the conditions of continuous care and solicitude people maintain for them.

Thus we speak of domesticated horses and wild horses, domesticated bees and wild bees, and domesticated plants -(think tobacco, and corn)- and wild plants. What turns a species from a wild to a domesticated form is human patience and careful breeding. But the late professor of anthropology Charles Reed (d. 2000) wrote that many animals are naturally tame - or at least not afraid of human contact:

Among these are manatees, who may not even move aside as one swim among them; sea-otters, from whom one can take the young without any defense by the mother; various basking seals, elephant-seals and sea-lions, among who (other than the males in breeding season) one can walk unconcerned, and whose young, if they've lost their mothers, will follow any human hoping to be fed; various of the porpoises and dolphins, who seem to have no fear of man, and even the great whales.

Can Wolves be Tamed?

The Mishnah on today's page of Talmud stated that six species of animal can never be relied upon to have been domesticated. One of these is the wolf, which seems kind of reasonable, even allowing for the fact that our dogs are descended from them.  But wolves have also been successfully raised as family pets, (though you should probably check with your spouse before bringing home a wolf cub for the family). "Actually" wrote Charles Reed, "wolf pups reared as a group in Alaskan isolation or a single pup brought up with children and dogs in an urban family are wonderfully affectionate, social, dynamic, interesting, and of course intelligent fellow citizens." Which sounds rather like the opinion of Rabbi Eleazar, who believed that wolves, (and bears, lions and leopards) may be tamed so successfully that they end up about as aggressive as domestic goats.

“Wild animals ain’t so wild, as shown again by a wild-caught penned wolverine in Alaska, which, within a few days of capture, was taking food from the hand...when the hand was empty, the wolverine gently, with its incisor teeth, held the lady’s fingertips without braking the skin.”

— Charles A. Reed. Wild Animals Ain't So Wild, Domesticating Them Not So Difficult. Expedition 1986. 28 (2) 8-15.

A Pet Grizzly Bear called ben franklin

In the Mishnah, Rabbi Eleazar spoke not only of a tame wolf - but of a tame bear.  While our modern sensibilities would be outraged at the notion of raising a wild bear as a pet, these sensibilities are, to be sure, modern indeed. In a charming article published in the American Naturalist in 1886, John Caton described the domestication of the grizzly bear. Just to remind you- a small grizzly bear weights 400 pounds and stands about six and a half feet tall. Now read on:

Among others he [a certain James Adams] fairly domesticated quite a number of the grizzly bear (Ursus ferox Lewis and Clark) with complete success. This is the largest and fiercest known of all the species, and it might be expected the most intractable or unsubmissive to human control, yet such appears not to have been the case.

The first specimens experimented with were two cubs, over a year old when caught, taken in Washington Territory, between Lewis and Clark's fork of the Columbia. They were brother and sister; the latter was retained by Adams, and his experiments were principally conducted on her, which he called " Lady Washington." She seems to have been the more tractable and submissive. The male he parted with to a friend, after he had received but the rudiments of his education. At first they were chained to trees near the camp-fire, and resisted all attempts at familiarity and kindness; then severity was adopted, until they finally submitted.

Soon after the male was parted with, and we have no account of his subsequent career. The female was always after treated with the utmost kindness, and in a few months became as tractable as a dog. She followed her master in his hunting excursions, fought for him with other grizzlies, and saved him from the greatest perils.

She slept at his feet around the camp-fire, and took the place of a most vigilant watch-dog. He taught her to carry burdens with the docility of a mule, and as she grew up her great strength enabled her to render him great assistance in this way.

Another bear of the same species he captured in the Sierras in California before its eyes were open, and raised it on a greyhound bitch in company with her own pup. This he called Ben Franklin, and proved more docile even than the first. He never found it necessary to confine in any way this specimen, but he was allowed to roam and hunt with his foster brother, the grayhound [sic]. They were inseparable companions, and seemed to have as much affection for each other as if they had been of the same species, Before he was full-grown, when his master was attacked by a wounded grizzly, he joined in the fight with such ferocity as to save his master's life, and though he was severely wounded in this contest, with careful nursing he survived, and ever after showed as much courage in attacking his own species as if he had not met with this severe punishment.

I know what you are thinking: grizzly bears are found only in North America, but bears in Israel were a species of the brown bear called Ursus arctos syriacus, or the Syrian Brown Bear. Well that's true, but it's not only grizzly bears that make cuddly pets; the same owner of Ben Franklin, the pet grizzly, also kept black bears (and who knows, perhaps brown ones too):

He found the black bear, when raised in camp, as readily domesticated as the grizzly, and as fond of his society, following him about the camp and through the woods with fidelity and attachment.

So there we have it. Evidence to support Rabbi Eleazar's dissenting opinion that many wild animals may become as domesticated as a dog or cat.  Still, best to stick with dogs and cats as pets.  They take up far less space than the enormous, though very cute, grizzly bear.

Kiddushin 82a ~ The Best Doctors Go to Hell

קידושין פב, א

רבי יהודה אומר משמו החמרין רובן רשעים והגמלין רובן כשרין הספנין רובן חסידים טוב שברופאים לגיהנם והכשר שבטבחים שותפו של עמלק

Rabbi Yehuda said in the name of Abba Gurya: Most donkey drivers are evil; most camel drivers are righteous; most sailors are pious; the best of doctors is destined for hell; and even the best butcher is a partner with Amalek.

"The best of doctors is destined for hell". Thats quite a statement for Rabbi Yehudah to make.  Writing in The Atlantic several years ago, the late Sherwin Nuland told this (probably apocryphal) story:

Imprisoned in a tower in Madrid, disabled by syphilis and further weakened by an abscess in his scalp, the French king Francis I asked of his captor, the Holy Roman Emperor Charles V, that he send his finest Jewish physician to attempt a cure. At some point after the doctor arrived, Francis, in an attempt at light conversation, asked him if he was not yet tired of waiting for the messiah to come. To his chagrin, he was told that his healer was not actually Jewish, but a converso who had long been a baptized Christian. Francis dismissed him, and arranged to be treated by a genuine Jew, brought all the way from Constantinople.

Whether true or not, the story illustrates the esteem in which Jewish doctors were - and often still are held.  So what did Rabbi Yehudah mean by condemning the best physicians to hell? Let's take a quick survey of some of the answers suggested through the ages.

1. Rashi (France, 1004-1105)

Rashi gives this explanation:

טוב שברופאים לגיהנם. אינו ירא מן החולי ומאכלו מאכל בריאים ואינו משבר לבו למקום ופעמים שהורג נפשות ויש בידו לרפאות העני ואינו מרפא

The best doctors go to hell. The do not fear sickness. They eat the food of the healthy, and they do not act humbly before God. Sometimes they kill, and sometimes they are able to heal a poor person but do not do so.

Rashi gives five reasons why even good doctors are, well, not so good. First, they believe that they themselves cannot become sick (אינו ירא מן החולי). Second, they eat a  diet of those who are healthy (ומאכלו מאכל בריאים) and so apparently avoid illness themselves.  As a result of both of these factors, they are rather proud of themselves (ואינו משבר לבו למקום. Sidebar: what's the difference between God and a cardiothoracic surgeon? God doesn't think he's a cardiothoracic surgeon...) Fourth, they make mistakes that kill the patient (פעמים שהורג נפשות), and finally, according to Rashi, they are so focused on the business end of medicine that they only heal those who can pay.

While Rabbi Yehudah made a general statement about the destiny of good physicians, Rashi, writing in eleventh century France, was not short of examples of bad ones. No doubt Rashi's comments reflected the contemporary practice of medicine. But if, as Rashi suggests, doctors would eat a healthy diet and so avoid becoming sick themselves, why did they not share this information - even at a price? Moreover, there is no evidence that any diet could play any role in delaying (or curing) many causes of death in the pre-antibiotic era: cholera, smallpox, plague and regular plain old pneumonia. Rashi's explanation raises far more questions than it answers. So let's keep going...

2. The Ramban - Moses ben Nachman (Spain, 1195-1270)

ואין לך ברפואות אלא ספק סכנה, מה שמרפא לזה ממית לזה וזו שאמרו 'טוב שברופאים  לגיהינום' לגנות דרכן של רופאים בפשיעות וזדונות שלהם. – תורת האדם שער המיחוש - ענין הסכנה ד"ה אבל 

Medical interventions are nothing but a danger. What heals one person kills another. And this is what is meant when they said "the best doctors go to hell" - to disparage the practice of physicians and their malpractice...

Ramban is sweeping in his assessment of the practice of medicine: medical interventions are nothing but dangerous (ואין לך ברפואות אלא ספק סכנה).

3. The Meiri - Menachem ben Meir (France 1249-1316)

מפני שכמה פעמים שופך דמים מפני הייאוש ואינו משתדל כראוי במלאכת רפואתו או שאינו יודע לפעמים סבת החולי ודרך רפואתו, ועושה עצמו בקי. בית הבחירה קידושין פ

For often they shed blood, because they give up and do not try to apply their trade as physicians appropriately.  At other times they do not know the etiology of the disease and how it should be treated, and yet pretend as it they do.

Here is a rather different explanation. It is not that medicine is intrinsically worthless (as the Ramban opined), but that physicians are not diligent about how they practice, and do not admit when they are not knowledgeable. Presumably if the physicians were more scrupulous and more honest about the limits of their own knowledge, Meiri would not have them condemned to hell.

4. Jacob ben Asher (Germany 1270-1343)

שנתנה לו רשות לרפאות ומצווה היא ... והזריז הרי זה משובח ואם מונע עצמו הרי זה שופך דמים .... ואם לא נתעסק בה כלל הרי זה שופך דמים ובן גיהינום הוא בוודאי.  טור, יורה דעה של"ו 

Permission has been given to heal, and to do so is a mitzvah...and one who is eager to heal is to be praised, but if he [is able to heal but] does not do so, he is considered to have shed blood...and if he does not engage in medicine he is considered to have shed blood and is certainly destined to hell...

Jacob's explanation is novel and turns from critic to job coach. Medicine is so important - (presumably because he felt that it actually worked) that one who could be a physician but does not choose this path (he's talking to you, lawyers) is "certainly destined to hell" (ובן גיהינום הוא בוודאי). 

5. Shlomo ibn Virga (Spain, ~1460-1554)

שיראה לעולם גיהינום פתוח לפניו אם ייהרג האיש שהרפואה על ידו ובזה יעיינו ויעשו החריצות הראוי, וה'טוב' הוא כאשר יחשבו שהם עתידים לירש גיהינום אם לא יכוונו כראוי   , במחשבה ועיון. שבט יהודה ירושלים תשט״ו, קי’ג

The physician should act as if hell itself is open before him if his treatments kill the patient.  In this way, will he will act with caution and diligence. The "best" of physicians is one who acts as if he might one day inherit hell, unless he is appropriately careful and attentive...

Ibn Virga (the author of שבט יהודה) turns the Rabbi Yehudah's phrase from descriptive to cautionary: be a good doctor or else you could go to hell. Could the fact that he was himself a physician have influenced his novel explanation?

6. The Maharal - Judah ben Bezalel Leviah (Prague, 1512-1609)

מי שהוא רופא ואינו בעל תורת אלוקים עם זה הרי כל עניינו שהוא מעיין כחומרי בלבד, לכך הוא בעל גיהינום.  ספר נצח ישראל, ל'

A physician who is not also an expert in God's Torah will view his subjects as nothing but material beings.  Therefore he is destined for hell...

The Maharal, who viewed the world as ruled by both material and spiritual forces, explained Rabbi Yehuda as giving a warning. But unlike the warning Ibn Virga saw - to be the best doctor you could be - the Maharal saw the Rabbi Yehuda warning the physician to be part rabbi too - and to view his healing powers as derived from God.  

7. Joseph Almanzi (Italy, 1801-1860)

Almanzi, poet and book collector, took this whole doctors-go-to-hell thing to a whole new new level. He wrote a poem titled The Worst Doctors Go to Hell, which I suppose is a lot better than sending the best of them there. The poem is part of collection published in Padua in 1858. Here it is in the original:

Like all poetry, it's a lot better, and a lot more caustic in the original, but here is a flavor:

Wicked Doctor !

You have lied against God's commands

You have despised his Torah

And the laws of humanity

"Do not kill, do not commit adultery" - you erased these like a passing cloud

And you have made "Do not steal" into contrition the graveside...

You have shed innocent blood; therefore against you,

To avenge the myriads of those who died on your account

Spirits and demons will come like good times

The Super Sad True Story of Medicine from Hippocrates to the Nineteenth Century

“In Thomas Dekker’s The Honest Whore, we are told that it is far safer to fight a duel than to consult a doctor. In Ben Johnson’s Volpone doctors are said to be more dangerous than the diseases they treat, for ‘they flay a man / before they kill him’”

— David Wootton. Bad Medicine. Doctors Doing Harm Since Hippocrates. Oxford University Press 2006. 139.

The history of doctors doing more bad than good is a long and sad tale. From the time of Hippocrates until about 1865 (when Lister pioneered antiseptic surgery), if you were sick, injured or ailing, you were better off not going to a doctor. Let me repeat that, to be sure there is no misunderstanding: until about 1865, all doctors did more harm than good. 

Hippocrates of Cos is believed to have lived from about 460-375 BCE. It was he and his successors who seem to have first suggested that daily life should be managed to insure the right amount of food, drink, sleep, exercise.  In addition, the Hippocratic school believed that excess fluids could- and should be eliminated from the body in one of three ways: by using emetics to induce vomiting, by using purgatives to induce diarrhea, and by letting blood.  Later, a fourth “therapy” was introduced: cautery, in which hot irons were applied to the body.  None of these therapies helped any internal conditions, and the only benefits from Hippocratic practitioners was in setting bones and lancing boils. In addition to introducing purgatives, laxatives and blood letting, there was another "contribution" made by the ancient medics: the four humors.

Although the four-humor system seems to have first been suggested by Polybus, who was the son-in-law of Hippocrates, it was made popular by Galen (~130-201 AD): blood, phlegm, black bile and yellow bile.  Galen (who claimed to have discovered a new kind of bile- black- which was noted as sediment if blood was allowed to stand and separate) attributed disease to an over abundance of one or the other of the humors, and so bloodletting became a cure for almost all conditions. This remained true until the late nineteenth century.  

According to the masterful historian David Wooten, if you look at therapies and not theories, then ancient medicine survived into the nineteenth century – and beyond. Although ideas about the body changed as a result of the scientific revolution, medical therapies changed very little, if at all. Bloodletting was the main medical therapy in talmudic times, and in 1500, 1800, and even 1850. Of course it was not only of no benefit, but was certainly of great harm. It continued to be used because it looked like it was working: the patient's pulse would slow, his temperature would drop, and he would fall into a sound sleep.

“Trust not the physician;
His antidotes are poison and he slays”

— William Shakespeare. Timon of Athens, iv, iii, 434-436.

The Discovery of the Placebo Effect

James Gillray (1757-1815). Metallic Tractors. Wellcome Library for the History and Understanding of Medicine, London

None of the supposed remedies used by physicians were ever tested against each other - or against nothing, (and they all did more harm than doing nothing). But eventually someone suggested testing medical interventions for their efficacy.  That someone was John Haygarth (1740-1827), a British physician, who was skeptical of a new popular treatment "just arrived from America", which involved metallic tractors placed on the body to relieve pain through the agency of animal magnetism. These tractors had been invented by a Philadelphia physician Elisha Perkins, and were apparently all the rage in America; one historian noted that "George Washington, no less, purchased a set for the use of his own family, as did the Chief Justice, the Honorable John Marshall, who gave his judgement that 'the effects wrought are not easily ascribed to imagination, great and elusive as is its power'." Back in England, John Haygarth put the tractors to the test in 1799: he manufactured sham tractors made of wood, and tested them on five patients at the Bath Infirmary. Equal effects were found with both the Perkins and the fake tractors - and the placebo effect had (at long last) been discovered.

Haygarth's discovery was about far more than these silly metal rods, because it suggested that much of what standard medicine was offering was a placebo effect at best (or a dangerous intervention at worst).  Haygarth's work raised this question: shouldn't other orthodox medical treatments be tested too?

Bloodletting is finally Unmasked - Kinda

Bloodletting - the best that medicine could offer from Hippocrates, through the times of the Talmud until the nineteenth century was finally tested in the late 1820s, by the very French sounding French physician Pierre-Charles-Alexandre Louis (1787–1872).  Louis set to test the theory of another French doctor, Francois Joseph Victor Broussais, who claimed that all fevers were due to an inflammation of the organs. "Accordingly", wrote the epidemiologist Alfredo Morabia, 

leeches were applied on the surface of the body corresponding to the inflamed organ and the resultant bloodletting was deemed to be an efficient treatment. For example, the chest of a patient suspected of having pneumonitis was covered with a multitude of leeches. Broussais’s theories were highly regarded by contemporary French physicians. His influence can be assessed using an economic measure: in 1833 alone, France imported 42 million leeches for medical use.

Louis tested this extreme form of bloodletting in 77 patients, and found results that were all over the place.  More patients died who were bled early, but their duration of disease was also shorter, when compared with those who were bled later. Sadly, Louis did not conclude that bloodletting was dangerous, but that "its influence was limited". Louis is now recognized as setting the groundwork for the modern practice of epidemiology, in which outcomes are measured and counted. Interestingly, using a modern analysis of Louis' bloodletting results, "the group bled during the first four days of disease does worse (P-value=0.07), and this would appear to make a protective effect of bleeding highly unlikely." The efficacy of bloodletting was finally being tested, and though it would remain a staple therapy for several more decades, fortunately, its days were numbered.  

Rabbi Dr. Lampronti on Doctors Gone Bad

Returning to our troubling phrase "the best of doctors go to hell," perhaps the most intriguing - and prescient  - explanation is that of Isaac Lampronti(1679– 1756). Lampronti was an Italian Jew who studied medicine at Padua. He completed his studies at the age of twenty-two and returned to his home town of Ferrara in northern Italy.  There he became a rabbi and eventually rose to become the head of the yeshivah in the city, all while continuing to practice medicine. Lampronti introduced a curriculum of dual learning in his yeshivah, which, according to the historian David Ruderman, became “the quintessential Jewish institution of learning in Italy, where Judaism and the biological sciences, along with the propaedeutic language training necessary to pursue both, were meaningfully infused.” Lampronti is best known for his lengthy alphabetical encyclopedia of Jewish law, Pahad Yizhak (The Fear of Isaac), in which each entry contained material from the Mishnah, Talmud, later commentaries, and the responsa literature, in addition to updates from contemporary science.  Here is his entry on the phrase from today's daf:

טוב שברופאים לגיהנם... ורבו עליה הפירושים... ואני אומר, דעל הקירורגים נאמרה, יען וביען הם משנים מצות החכם ובפרט בהקזת דם מרבים או ממעטים כפי שיכלם הקצר וממיתים החולים, וכמה פעמים ראיתי אני הצעיר המחבר כאלה לרוע

The best doctors go to hell: There are many explanations of this...and I believe that this is referring to surgeons, for this reason: they change the commandment of the wise, in particular with regard to bloodletting. They take more or less blood based on their limited understanding, and by doing so they condemn the patient to death. And there are a number of occasions in which I,  your young author, have seen this and its bad outcome...    

Let's be clear here. Lampronti was not suggesting that bloodletting was nonsense.  As a physician who had trained in Padua he was certain to believe it was effective. Rather, he blamed physicians - or rather surgeons - for using the intervention imprecisely, in so doing, "condemned the patient to death." When Rabbi Yehudah condemned the best doctors to hell, it was these surgeons and their bloodletting to whom he referred.

Finally, An Explanation of "Good Doctos Go to Hell"

“Celsus…in the first century AD, recommended blood letting for severe fever, paralysis, spasm, difficulty in breathing or talking, pain, rupture of internal organs all acute (as opposed to chronic) diseases, trauma, vomiting of blood. It was still being used as a nearly universal remedy in the middle of the nineteenth century.
”

— David Wooten. Bad Medicine. Oxford University Press 2006. p37.

In terms of medical texts, little changed from the time of Hippocrates until the mid-seventeenth century, when discoveries of the circulation were made.  Wooten sums up the unchanging world of medicine by noting that  

...from the fifth century BC until the end of the nineteenth century…doctors found patients who were prepared of pay for treatment that was at best ineffectual, and usually deleterious. Throughout this period, surgery…was commonly fatal, which the common therapies were bloodletting, purging and emetics, all of which weakened patients. Advances in knowledge, as such as the discovery of the circulation of the blood, had no pay-off in terms of advances in therapy, so that we might say that all progress was in human biology none of it in medicine.

Before 1865, doctors could set some broken bones, reduce dislocations and lance boils.  Later, they could prescribe opium for pain, quinine for malaria, digitalis for some causes of dropsy, mercury for syphilis, and orange and lemon juice for scurvy. But that was it, and for two-thousand years medicine remained essentially unchanged. "A doctor in ancient Rome "wrote Wooten, "would have done you just about as much good as a doctor in early nineteenth-century London, Paris, or New York." Which is to say, no good at all. 

We have noted before that The Principle of Charity asks a reader to interpret the text they are reading in a way that would make it optimally successful.  We are now in a position to do just that for Rabbi Yehudah's puzzling  declaration "the best doctors go to hell". For before the introduction of antiseptic surgery in 1865, the best of doctors could not be separated from the worst. Their interventions did no good, and often harmed or killed their patients. They were at best useless, and at their worst, agents of death.  Perhaps this is why Rabbi Yehudah condemned them to hell.

Let's conclude with the Talmud's evaluation of the contributions bloodletters, found on the very last page of Kiddushin, the last masechet in Nashim.

קידושין פב, א

תנו רבנן עשרה דברים נאמרו בגרע מהלך על צידו ורוחו גסה ונתלה ויושב ועינו צרה ועינו רעה אוכל הרבה ומוציא קימעא וחשוד על העריות ועל הגזל ועל שפיכות דמים 

Our Rabbis taught: Ten things were said of a blood-letter. He is haughty and has a conceited spirit, he leans back when sitting, has a grudging eye and an evil eye; he eats much and excretes little; and he is suspected of adultery, robbery and bloodshed.

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