Bava Kamma 85: Pain, Medical Costs, Loss of Livelihood

How can we judge the pain of another person?  The rabbis have already suggested that someone with similar pain tolerance should state what that injury would be worth to him/her.  What if both parties were injured? What if we cannot determine pain so simply?

The rabbis launch into a deeper conversation about monetary restitution for injury.  How much might a person pay to have his/her hand severed?  What about the use of sahm, anaesthetic?  the rabbis concur that no-one would take money to inflict that type of pain, regardless.  And humiliation would have to be paid as well, for a hand could be tossed to the dogs to be eaten.  These arguments are moot in a world where the poorest of the poor sell their organs for money and the opportunity to live a better life.

Are medical costs and the cost of the ‘loss of livelihood’ connected?  Are both required?  The Gemara examines the wording of our Mishna.  Medical costs include bandages.  But what about excessive bandages?  Loss of livelihood may or may not be required at all.  The rabbis even touch on the concept of G-d and healing.  If a person falls ill, perhaps that is G-d’s plan and only G-d will heal this person.  Or perhaps G-d has also created people with the knowledge of healing arts so that people can be treated medically.  We know that the Jewish tradition leans toward the latter argument.  Our notes teach that Rambam discusses this concept (Leviticus 26:11) at length in his Commentary on the Torah.

If a person develops growths at the site of the injury, one must determine if they were due to the injury or unrelated.  If unrelated to the injury, the person at fault for the injury is not liable for the cost of medical treatment, the cost of lost livelihood, etc.  A doctor might give the injured person advice on how to treat his/her wounds, including a growth that may or may not be related to the injury.  If the injured person does not follow the doctor’s advice (to stay away from sweets), the growth may become garguteni, meaning that it was necrosis and must be treated with crystallized ice plants*, wax and wine dregs.

The Gemara teaches that it is not permitted for the healing to be arranged or performed by the injured and the person at fault.  Neither is to be trusted with this transaction (ex. where either says, “I know a doctor…” or where either says, “Just give me the money and I’ll take care of the healing”).  The rabbis find prooftexts for this as well.

We learn that some injuries, like causing deafness, result in compensation for the full value of the person.  It is impossible to measure the worth of hearing, as all parts of one’s life would have been defined by that factor in antiquity.

Briefly, the rabbis note that those who work carrying buckets or as agents should be compensated for their specific loss of income.  Cucumber watchers should not be the only measure of loss of livelihood.  It does, however, teach us that even a simple job requires basic skills. 

Another question: what should be done about multiple injuries?  Should a leg be evaluated before an eye and a hand if each was injured sequentially?  Or should one wait and evaluate all three simultaneously?  The rabbis conclude that in these cases, the full value of the person might be awarded.

We end with an interesting set of questions.  What is done if a person injures another and the damages are not life-threatening?  For example if one’s hand is weakened but will return to full strength?  A comparison is made with one who injures his parents but leaves no bruise, such that the death penalty is not imposed.   Another comparison: one who injures another on Yom Kippur.  Their punishment will be karet, exclusion from the World-to-Come, and thus no other punishments are imposed.

*Our notes teach that these plants, aha, are native to Israel and contain small sacs.  They are high in sodium carbonate and is used to bathe, launder clothes, treat diuretics, and reduce inflammation.