Halacha » Transferring Contagious Patients to Nursing Homes

Transferring Contagious Patients to Nursing Homes

At the height of the virus, the Governor of New York saw fit to send elderly patients back to their nursing homes, despite the fact that they were obviously ill with the contagious coronavirus and carried a risk of infecting others.

As they were all high-risk due to their age, it was likely that many of them would pass on, Heaven forbid. Similarly, many hospitals placed coronavirus patients in rooms that also housed seriously ill elderly patients who had not yet contracted the virus.

Note, the law prohibiting bloodshed applies even to gentiles, as it is one of the Seven Noachide Laws.

Does the need to make hospital beds available allow one to expose others to the disease?

The Gemara states, “Shmuel says, ‘A king who kills one in six is not punished.’” Rashi and Tosafot offer differing interpretations to this statement of the Gemara. Rashi explains that it refers to “the king’s service” meaning work that may or may not be lifethreatening. Shmuel is teaching that even if one-sixth of the workers die, the king is not punished, as the need for the king’s services pertains to the entire nation, and people must occasionally be put at risk as a result of this need. Tosafot however writes that Shmuel was talking about bringing the nation into a war that was not necessarily required. A sixth of the nation may be drafted for such a war despite the inherent dangers to those involved. In either case, it is clear that Rashi and Tosafot agree that lives may be put in danger for the benefit of the nation, even where it is not necessary to defend lives or to carry out an explicit Mitzvah. However, there is an important distinction between the two opinions. According to Tosafot, this is a unique allowance that pertains only to war, and thus, could not be applied to any other realm of law The Netziv concurs, writing, “A man is only punished [for killing] at a time when he is required to be at peace with his fellow. However, this is not the case in times of war, for that is the way of the world. This is the meaning of the ruling, ‘A king who kills one in six is not punished’ – even though many Jews will die in this action.” In conclusion, Tosafot (and those who follow his opinion) rule that it is only permissible to endanger the population during war. Thus, placing the elderly together with infected coronavirus patients is clearly forbidden.

Perhaps one may think that there is room to be lenient according to Rashi’s ruling – that a king may endanger his servants in his service, implying that any need for the better of the kingdom should allow this. However, this too is absurd, for a variety of reasons. First, both the Maharitz Chiyut and the Shaarei Shamayim wrote that the permission to endanger the populace applies ONLY to a king (and not any other governing official). Furthermore, it goes without saying that Shmuel’s statement was only said when there were no other options to achieve the king’s goals. If, however there would be another way to achieve the same end goal without compromising the national interest, it certainly should be taken. Certainly in our case, it would have been easy to find room for all of those patients – for example, by housing them in hotels and such.

Lastly, Shmuel’s ruling certainly cannot be applied to placing an ill person where he may infect the healthy. Rather, this ruling of Shmuel would be applied only by requiring a healthy person to go amongst the ill. The difference is obvious: the king may send a person on a mission that endangers his life to benefit the masses, but he may not endanger the masses when there is no mission involved.

Thus, it is clear that moving infectious, ill patients to a place that puts others at risk is forbidden.