Chapter 4

The physicians’ strike naturally gives rise to public debate on ethical and moral questions. On the one hand, the main criticism against such a strike is that the physicians are immorally abandoning their patients in order to advance their own financial interests. According to this criticism, such a strike involves a shirking of the physicians’ responsibility and a breach of the trust placed in them by the patients. On the other hand, it is argued that physicians have an equal right to struggle for their rights, just like all other employees in the economy, and that although the public does suffer to some extent — again, like in almost every other strike — the physicians’ strike actually contributes in the long term to the welfare of the public and the strengthening of the healthcare system.

Academic literature extensively discussed this debate and the ethical aspects of the physicians’ strike. The main points of the academic discussion of the issue were propounded back in 1985 in the work of Sachdev,¹ who proposed that the ethical justifications for a physicians’ strike should be examined by means of four questions:
 

a.  Does the long term benefit that the physicians and the public gain from the strike compensate for the damage, insofar as any is caused by the strike, including cases of death that were avoidable?

b.  Does the expectation for future benefit as a result of a physicians’ strike justify the delay in treating immediate needs?

c.  Does the unwritten contract between the physician and the patient or between the physician and society prevent physicians from striking?

d.  Does a strike harm the public standing of physicians?
 

The first two questions reflect the tension between the physician’s duty, pursuant to the Hippocratic oath, not to cause harm,² and his rights as an employee and as someone who is constantly seeking to improve the healthcare system. As is well known, the physicians continue to provide emergency services and essential services even during a strike and thereby act to minimize the harm to the public.³ In addition to this, the main harm caused by the physicians’ strike is the postponement of medical procedures that are not urgent and the increase in waiting times for patients. Although we should not take these lightly, it should also not be forgotten that the healthcare system already suffers from an infrastructure crisis that causes delays and long waiting times. Therefore, a physicians’ strike that results in achievements for the whole healthcare system may actually contribute, in the long term, to a strengthening of the infrastructures and a shortening in waiting times, for the welfare of patients.⁴ It should also be pointed out that, contrary to the claims that a physicians’ strike undermines public health,⁵ research shows that such a strike does not necessarily harm the quality of healthcare services.⁶

The third question in Sachdev’s work reflects the duty of physicians by virtue of the ‘social contract’ between them and their patients and society as a whole. This duty may actually tip the scales in favor of a strike insofar as it is intended to improve the condition of the healthcare system for the welfare of patients. In practice, it is precisely because physicians are not ‘ordinary’ employees and precisely because their duty to the patient does not end when the formal hours of the work day end that they have a responsibility to improve the condition of the healthcare system beyond their own employment conditions. This responsibility emphasizes the central role of the physicians in the healthcare system as both carers and ground-breakers at the same time. Therefore, insofar as physicians choose to struggle and even to strike for the allocation of additional resources for the benefit of the healthcare system, for additional jobs for medical personnel and for the improvement of the service provided for the periphery and for the general public, this struggle is capable of strengthening the physicians’ duty to the patients and to the public as a whole.⁷

Regarding the effect of a strike on the standing of physicians in public opinion, as addressed by the fourth question in Sachdev’s work, research shows that the effect is not necessarily negative.⁸ In practice, the true danger to the status of physicians lies in the continuing deterioration of the healthcare system, which worsens the position of patients and causes many of them erroneously to identify physicians as indifferent to their condition and merely concerned with their own materials interests.⁹ In the long term, such a public outlook may be destructive to patients’ attitudes to physicians. On the other hand, a determined struggle by physicians to improve the system while giving continuous and up-to-date information to patients with regard to the demands raised in the struggle, its progress and the continuing concern for their welfare may increase the patients’ identification with their physicians and strengthen the public standing of physicians.

1. P.S. Sachdev, ‘Ethical issues of a doctors’ strike,’ BMJ, Journal of Medical Ethics, vol. 12, 53-54, 1986.
2. The Hippocratic Oath – classic wording: last accessed May 31, 2011.
3. European Foundation for the Improvement of Living and Working conditions, Employment and industrial relations in the health care sector, last accessed May 2011; Freedom of association and the effective recognition of the right to collective bargaining, ILO, COLL-COMPILED-2000-01-0003-30-EN.DOC, 2000.
4. Frank Frizelle, ‘Is it Ethical for Doctors to Strike?’ The New Zealand Medical Journal, vol. 119, no. 1236, June 23, 2006.           
5. Shlomo Barnoon, Sara Carmel, and Tsila Zakman, Perceived health damages during a physicians’ strike in Israel, Health Services Research, 22:141-55; 1987.
6. Ellencweig, A.Y., and Ginat-Israeli, T., ‘Effects of the Israel Physicians’ Strike on the Treatment and Outcome of Acute Appendicitis in Jerusalem,’ Israel Journal of Medical Sciences, 26(10):559-63, October 1990; Aro, S., Hosia, P., ‘Effects of a Doctors’ Strike on Primary Care Utilization in Varkaus, Finland,’ Scandinavian Journal of Primary Health Care, 5(4):245-51, November 1987.
7. Ogunbanjo, G.A., and Knapp van Bogaert, D., ‘Doctors and strike action: Can this be morally justifiable?’ South Africa Family Practice, vol. 51, no. 4, 2009.       
8. Nicole Baer, ‘Despite some PR fallout, proponents say MD walkouts increase awareness and may improve health care,’ Canadian Medical Association Journal, 157:1268-71, 1997. 
9. Spencer B. King III, ‘Trust me, I’m a doctor,’ JACC Cardiovascular Interventions, vol. 3, no. 10, 1100-1101, 2010.  

Two main questions arise in Jewish religious law with regard to a physicians’ strike: first, do physicians have a moral right to strike, and second, whether physicians have a right to demand a fair salary, and if so, who is responsible to pay it to them?

In 1983, during the physicians’ strike that took place in that year, the Chief Rabbis of Israel, Rabbi Avraham Shapira and Rabbi Mordechai Eliyahu, held that as long as the employers did not accept the physicians’ demand for arbitration, the physicians were permitted to strike.¹ Rabbi Yitzhak Yaakov Weis and Rabbi Shlomo Zalman Auerbach in that year also hinted that the physicians were entitled to disrupt the healthcare system to the extent that it would operate on a Sabbath schedule.²

Rabbi Shlomo Goren, who served inter alia as Chief Rabbi of Israel, emphasized in 1983 that the Government bore the responsibility for public health, and not the physicians.³ Rabbi Goren distinguished between a situation in which there was an employment agreement — and therefore it was more problematic to disrupt the healthcare system — and a situation where such an agreement was not valid. ‘Were we speaking of the time stipulated in the employment agreement between the physicians and their employers, the problem would be more serious,’ Rabbi Goren held, ‘but when we are speaking of a renewal of a salary agreement of the framework that exists between the physicians and the Ministry of Health, where everyone admits that the physicians’ claims are in principle justified, but the Ministry of Finance is concerned that the general framework of employment agreements in Israel will be undermined, and if they make concessions to the physicians, others will also come to make strong demands and to threaten strikes, perhaps this is not a ground for compelling the physicians to work for poor salaries’ (emphases not in the original). Ultimately, the Rabbi’s conclusion was that ‘the striking physicians may not prevent the giving of aid to patients, but there is a duty to pay them salary in accordance with the demand of the Medical Association.’⁴

Regarding physicians’ salaries, there is no dispute in Jewish religious law that physicians are entitled to fair remuneration for their work. Although prima facie healing people is regarded as a religious obligation, and, as is well known, one may not receive remuneration for carrying out a religious obligation, the Talmud extensively addresses the responsibility of the patient to pay for medical treatment.⁵ In the Torah itself it is stated that a victim of violence is entitled to compensation, inter alia, so that he may pay a physician.⁶ The Talmud goes on to determine, in this context, that a victim of violence may refuse to receive medical treatment that will be given to him gratis by a friend of the tortfeasor, on the assumption that ‘a physician that provides treatment for nothing is worth nothing’ (since he will not give the patient his full attention).⁷

In addition, most arbiters of Jewish religious law in the present agree that physicians have a right to a high salary, which goes beyond the time and effort that they actually devote to the treatment. Thus, for example, Rabbi Shaul Yisraeli held that the time and money that physicians invested in studying medicine entitles them to higher payment.⁸ Additional rabbis justify payment of a high salary to physicians on account of the time when they are on-duty and on-call and the legal risks to which they are exposed.⁹

1.  Rabbi Dr. Mordechai Halperin, ‘Jewish Religious Decisions from the Time of the Physicians’ Strike,’ from Asia: Articles, Synopses and Reviews on Matters of Jewish Medical Ethics, vol. 5, 1986, page 33, note 9.
2. Ibid., at page 31.
3. Rabbi Shlomo Goren, ‘The Physicians’ Strike from the Viewpoint of Jewish Religious Law,’ Asia: Articles, Synopses and Reviews on Matters of Jewish Medical Ethics, vol. 5, 1986, page 43.
4. Rabbi Shlomo Goren, ibid., at page 53.
5. See, for example, Ketubot 105a, Sanhedrin 91a, Ketubot 51a.
6.  Exodus 21, 19.
7. Baba Kama 85a.
8. Brody, S., ‘Ask the Rabbi: May doctors go on strike?’ Jerusalem Post, June 3, 2011.
9. Ibid.