(By Rabbi Yair Hoffman for 5TJT.com)

Is Bikkur Cholim, visiting the sick, in Israeli hospitals forbidden on Shabbos?  The hospitals now have huge temperature taking machines and some Poskim hold that it may be a violation of halacha to enter.

The question is pertinent in America as well. Will there be a second wave?  How bad will it be?  Will the shuls have to close again? If it does come – will shuls also buy the new high-end temperature reading devices?

Covid-19 has created a new paradigm – not only in terms of medicine but also in terms of medical halacha. The websites today are reporting upon a debate between the two chief Rabbis of Israel regarding taking the temperature of everyone who enters a hospital in Israel to visit the sick.  Is it permitted to do so on Shabbos?  Is there a difference between the perspective of the hospital and that of someone visiting wishing to perform the Mitzvah of Bikur Cholim?

This issue will need to be addressed in our shuls – if and when chalilah a second or third wave of COVID develops. There are also new devices soon being marketed that are instant and apply to a group not just an individual.  So, we need to address the halachic permissibility of it now – before anyone spends the money on such devices.

THE BIG SECRET

It is a little known fact, but there has been a large debate going on in the medical halachic community in Eretz Yisroel between those who followed Rav Shlomo Zalman Auerbach zt”l and those who later followed the changes that Rav Elyashiv zt”l had attempted to implement.  Rav Shlomo Zalman had permitted the use of “semi-Grama” for medical purposes in order to minimize halachic violations [see a detailed discussion of this toward the end of this article] .  Rav Elyashiv was of the approach that we look at the aggregate total and the time involved – and in most cases, he forbade it.

There are many people in Eretz Yisroel (mostly the religious Zionist group) who wish that the Jewish state be completely independent of a need to employ gentiles in a medical setting. This is certainly a laudable ideal, but on the other hand, the vast majority of Bnei Torah would also like to fulfill the opinions of Rav ELyashiv.

Rav Elyashiv zatzal did, however, permit the anti-terror cameras to operate on Shabbos in the streets of Yerushalayim on the way to the Kosel.  More on this later.   The secret that is discussed in this sub-heading is that many hospitals initially relied on rulings from Rav Shlomo Zalman permitting these devices.  Of late, however, there are adherents of Rav ELyashiv’s approach, particularly in the more Chareidi circles, that do not at all approve of the tech-devices.  Since the Chareidi market is an ever-growing part of Israel’s target market – many hospitals are eliminating the pro-tech-alternative and are using gentiles to perform the non-pikuach nefesh acts that are necessary in a hospital.

GETTING TO THERMOMETERS SPECIFICALLY

The invention of the first practical thermometer to measure human temperature as an indication of illness is credited to Sir Thomas Clifford Allbuss in 1870. He created a narrow tube at the top so that the mercury will get stuck and so that the temperature could be read later.  This is why the thermometer needed to be shaken down each time after use.  It’s use was only described in halachic literature after 1870.

OLD THERMOMETERS VERSUS ELECTRONIC ONES

Generally speaking, “measuring on Shabbos” falls under the rubric of Uvdah d’chol and is prohibited (See Mishna Brurah 306:34).  However, the measuring of a Mitzvah is permitted according to the Shulchan Aruch (OC 306:7).  Measuring temperature is a medidah shel mitzvah – when warranted, and would be permitted on Shabbos (aside from issues of the electronic method).  This is the view of the Mishna Brurah (306:36).  It does not fall under the rubric of Rabbinically forbidden medicine (gzairas smamanim) because it is an action that is ain bo mamash – no physical qualities to it.

That is in general.  Here, however, the measuring involves an electronic signal and further electricity being generated and recorded.

RAV RUBIN’S RULING

In a written ruling (see footnote #2), Rav Yitzchok Rubin shlita distinguishes between passing through a camera on the street and recording terrorists [inshi delo maali], which is permitted according to many Poskim – and the situation here, in a hospital setting.  In the terror cameras, the passer byer does not want every individual to be recorded – he just wants the terrorists to be recorded.  Thus, it is not considered a Psik Raishah that he wants and is attributed to him.  Regarding the hospital, however, he wants everyone checked.

Rav Rubin argues that since the visitor will not be let in unless his temperature is taken – it is considered as if he wants it and the action of setting up the temperature camera is attributed to him. He concludes that one may not visit the sick in Eretz Yisroel.

On the other hand, Rav Yitzchok Yoseph disagreed and permitted people going into hospitals and also permitted frum Jews in the hospital to measure temperatures.

Rav Rubin writes in footnote 7:1 that the concern is a Torah, a deoraisa, concern.

THE MACHLOKES BETWEEN THE CHAZON ISH AND RAV SHLOMO ZALMAN AUERBACH

There is a well-known debate between the Chazon Ish (OC 50:9) and Rav Shlomo Zalman Auerbach (Minchas Shlomo Vol. I #9) as to whether the completion of an electric circuit is a de’oraisah violation or not. Rav Shlomo Zalman holds that it is not.  Ideally, of course, we do want to fulfill the opinion of the Chazon Ish, but when there is a reason to be lenient – we should.  Of late, a number of Poskim in Eretz Yisroel have taken the position to be machmir.  It is intertesting to note that Rav Asher Weiss is of the opinion that electricity is a deoraisah of Makeh b’Patish.

The Tzitz Eliezer was of the opinion that there was no binyan in forming a circuit.

THE ARGUMENT THAT IT IS DERABANAN IN ALL LIKELIHOOD

This author would like to argue that since one is walking through the device, this may not be considered the derech of the malacha per se.  There are Poskim that would argue that this is a form of k’le’achar yad since, as of now, this is not the most common manner in which to violate the malacha and at this point – most of the world is not using these devices.  When a large majority of people will be using this regularly, most of these lenient Poskim would argue that it will no longer be considered kel’achar yad.  In addition, the malacha involved is a debate, and it may be only a derabanan.  That being the case, we have either a case of a double derabanan and it is possible that bemakom choli lo gazru.  There is also the possibility of implementing a halachic concept known as a sfek sfaikah to permit the item when it is used for medical purposes.  Even though we no longer do sfek sfaikos in our times (See Shach YD 110:63:36), there are exceptions to this (See a list of such Poskim in Yabia Omer Vol. VI p. 322).  One such exception is if there is a Torah Mitzvah involved.

This author was involved in a case at Rav Zilbershtein’s shiur for doctors and hospital Rabbonim – where a modern day sfek sfaikah was invoked by Rav Elyashiv zt”l in a unique case.

SOME BIKUR CHOLIM SAVES LIVES

Also, some cases of Bikur Cholim are, in fact, de’oraisah in that there may be a Pikuach nefesh in visiting someone. It is quite feasible that if a hospital sees that people do not really care about an individual, they may not get the best care possible.

This author spoke to two Poskim in America about the issue.  One Posaik did not wish to openly permit it for various reasons.  Rav Hershel Schachter stated that it is, in all probability k’lachar yad and that the kesivah that is being done is not shel kayama.  It is probably a shvus deshvus bemakom Mitzvah.  He also agreed with the author’s suggestion that it could be in a hospital Bikkur Cholim for most patients may be a matter of Pikuach Nefesh.  Rav Hershel Schachter further said that it could be a davar sh’aino miskaven because he thinks that he does not have a fever.

Also, what is the validity of the Shabbos medical technologies that have emerged and are still bound to emerge in light of the new paradigm of “medicine and the pandemic?”  Do all Poskim agree that it is permitted?

To understand the background behind the debates, let us first look at three types of terms:

• Direct Action – generally a Biblical prohibition.
• Grama – generally a Rabbinic violation.
• Semi-Grama – also known as not considered a Grama and thus fully permitted.

The term “Grama” means a “causation force” rather than a “direct force.” The laws of grama on Shabbos are derived from the Talmudic passages of grama in both damages and in murder. Not that “causation force” is permitted, necessarily. At times, for damages, it is forbidden by Rabbinic decree (for murder it is biblically forbidden). The Shulchan Aruch and Ramah (OC 334:22) rules that a grama is forbidden on Shabbos except in cases of loss or great need.

The trick then, it would seem, is to create medical devices that would halachically not even to be considered a grama – a causation force, but rather a semi-Grama.   But even then – are there other caveats?

Another background that we must study is that of electricity and the electric switch.  We must first understand what the halachic status of a general electric switch is. Our system of alternating current (AC) is, in actuality, a river of flowing ions moving back and forth as they pass around an electric circuit. DC is a river of ions flowing in one direction from a battery. In both AC and DC, if the circuit is blocked, the ions stop flowing. When the break in the circuit is removed, the ions continue flowing and eventually turn on the electric light. Indeed, Rav Chaim Ozer Grodzinsky zt”l believed that the electric light switch was a direct force – so much so that he even recited havdalah on an electric light switch!

But according to our explanation, a regular electric switch should be considered a grama – a causation force and not a direct force. Why? Because the switch is only removing the prevention to the flow of electrons. It is not causing the electrons to flow, it is merely removing the impediment to their flow. That should be a grama, not a direct force!

Halacha, however, views this either as direct force or as a forbidden type of grama. The reasons why this is so is subject to some debate. Primarily, the immediacy of the causation force makes it as if it is direct.

GRAMA VERSUS SEMI-GRAMA

What are the halachic factors that would make something that is causative a semi-Grama rather than a Grama?

There are three main approaches in the Poskim:

1. Some Poskim hold that if there is a delay in time between the person’s action and the result then it would be considered a semi-Grama.
2. Other Poskim hold that if the secondary action will not perforce occur, then the causative action is not even considered a grama. In other words, if it is not definite that the secondary result will happen – it would be considered a semi-Grama, not a Grama.
3. Yet, other Poskim hold that if it is not the normal way in which this causative action is performed – then it is considered a semi-Grama.

Many of the new devices employ a halachic approach that utilizes a mathematical repetition of a technology that doesn’t work all of the time.  But after a series of attempts of the use of the technology, it is a mathematical certainty that the secondary action will happen. One question that Poskim ask is: “Who says that the criterion of whether it will definitely happen is determined by one time and one time alone, and not the aggregate total of times? Generally speaking, Rav Elyashiv was not in gavor of any of these approaches to semi-Grama alone.  Rav Shlomo Zalman was more inclined to permit them under certain limitations.  Rav Elyashiv did not permit Shabbos elevators on this account.

Yet another issue about a device that employs such technology is whether it will train people to turn on and off devices on Shabbos in places that do not have such technology in place. Some term this issue the “slippery slope” issue and it can be a real problem.  There is a product called “NearBeer” that does not contain significant traces of alcohol. Is it a good idea to give our pre-teens and teens “NearBeer” simply because it contains no alcohol? The results might be devastating.

CONCLUSION

Of course each person should ask his own Posaik or Rav as to whether he should follow Rav Yitzchok Yosef’s lenient ruling or the ruling of Rav Rubin.  The author just wanted to present both sides of the issue.   This author wishes to argue that it should be permitted.

The author can be reached at [email protected]