The Short Vort
Good Morning!
Today is Wednesday the 20
th
of February 2019 and Shushan Purim Kotton 5779
The Case of the Mistaken Midwife
As I was just informed that the yeshivos were given an early dismissal due to the approaching storm, and I’m sure some of you are heading home early to beat the snow, I thought I would offer some “Shushan Purim Kotton Torah” (however, it’s all serious) to help you out with some Talmud Torah to think about as you sip your hot cocoa.
Please note, I read all your answers and responses, however, due to the propensity of the responses I cannot answer each one. However, I do appreciate them.
February 20, 2019
The Case of the Mistaken Midwife
A Midwife was called on Thursday by a woman who wanted to hire her to assist her in her upcoming birth.
It was late at night and the Midwife just heard that the woman’s name was Sorah and she was registered to give birth at Mount Sinai Hospital.
Although the midwife usually gets more information, this time she was rushed and tired and she only got a first name and phone number.
On Shabbos morning, her phone rang and the women blurted out, “This is Sorah, come right away.”
The midwife jumped into a cab and made her way to Mount Sinai Hospital. When she arrived at the hospital, she asked the first nurse in the OB/GYN department where is Sorah?
The nurse pointed her to the first room on the right.
The midwife entered, and asked, “Are you, Sorah?” The woman nodded in pain and the midwife began to assist her.
For over two hours the midwife assisted Sorah until Baruch Hashem, a baby boy was born on Shabbos afternoon.
The midwife walked home after the birth and returned after Shabbos to see how Sorah was doing.
After speaking to her for a few moments, she handed Sroah a bill for $1500.
Sorah responded, “What’s this about?”
The midwife said, “This is my fee for my services.”
Sorah says, “What fee? What are you talking about?”
The midwife said, “You called me on Thursday night, and we made up I would come and help you when you would go into labor.”
Sorah protested, “I never called you and I never spoke to you before today!”
The midwife asked, “Why did you think I came to help you?”
Sorah responded, “I don’t know, I thought maybe you were from the Bikur Cholim group or you worked for the hospital. However, I never hired you!”
The midwife left the room and asked the nurse, “Excuse me, is there another woman named Sorah on the floor?”
The nurse pointed her to another room.
As she entered the room, she asked her, “Are you the Sorah who called me on Thursday night?”
The woman nodded and said, “I was wondering whatever happened to you. Baruch Hashem I gave birth to a baby boy this afternoon.”
The mystery was solved.
The midwife had mixed up the Sorahs.
The midwife returned to the Sorah who she helped with labor and said, “I realize now that I did never speak to you. However, since I did help you for two hours you still owe me $1500.”
Sorah protested and said, “I never hired you and never made up with you anything. And I don’t owe you a penny.”
What is the Din?
Does Sorah owe the midwife any money?
If yes, how much should she receive?
Is Sorah believed when she claims she had no idea that the midwife was not a professional midwife?
What is your opinion?
The answer:
Principle # 1
There is a clear Halachik principle that if someone does work on your property without permission and there is a clear indication (Umdina) that you would never have hired someone to do this work for you then you have no obligation to pay him anything.
Example: Laibel never shovels the snow off his driveway as he does not own a car. If Fred, a teenager from next door comes over and shovels out the driveway and then asks Laibel for $20, Laibel has no obligation to pay Fred as it was clear to all that Laibel had no interest (or even any practical benefit) from having his driveway shoveled.
1. However, even if you usually don’t have someone do this work, but, this time you said or indicated that you agree to the unsolicited worker, you must pay the worker the minimum market wage for that type of work.
2. Therefore, if while Fred was shoveling out Laibel’s driveway, Laibel looked out the window and smiled and waived and nodded and raised his hand in a way that most people would understand as if he is saying, “keep working”, than Laibel is obligated to pay Fred the minimum market wage for shoveling a driveway as:
a. He knew Fred was shoveling
b. Snow Shoveling is normally done with the intent to collect payment
c. Laibel not only did not stop Fred, he even indicated his endorsement of the work
d. Therefore Laibel is required to pay the minimum marker wage to Fred
3. However, let’s say, Laibel does usually shovel his driveway, however, he does it himself. Even in this situation if Fred preempts Laibel and shovels the driveway, Laibel does not owe Fred anything as:
a. Laibel usually does this work himself
b. He never indicated in any way that he wanted or was remotely interested in Fred shoveling the driveway
4. What happens, if, in this neighborhood, there are two groups of young men. Some young men walk around with shovels and shovel people’s walkways and then expect to be paid. And there are other groups or boys called “snow schleppers”, who work as a Chessed organization and walk around shoveling people’s driveways and walkways for free as a Chessed.
5. In the above scenario, if Fred shoveled Laibel’s driveway, would Laibel be required to pay Fred?
6. It depends and here the Dayanim would have to “call it” as they “see it”.
a. If it appears that Laibel had a feeling that Fred was not doing this for free as he never knew him to be part of any chessed organization nor did Laibel even know about snow schleppers than Laibel must pay him the minimum market wage.
b. However, if there is a high probability that Laibel really thought that Fred was a member of snow schleppers and he never would have allowed Fred to continue if he knew he would be charged for Fred’s labor, then in this case Laibel is totally free of any obligation to pay Fred anything. As he can claim, I never hired you and I honestly thought you were a member of snow schleppers.
We now apply the above principles to the case of the mistaken midwife.
1. If Sorah (the woman helped by the midwife) was a woman who would never indulge, nor could she afford a private midwife and would just rely on the regular hospital personnel, then she does not own the midwife anything. This is because:
a. The midwife never informed her that she is privately paid employee
b. Sorah never indicated she wanted to hire the midwife and is not the type of person who hires private midwives
c. The hospital has its own staff which does this type of work
d. Even if she realized, the midwife was not a hospital employee (no ID and no uniform), if there are Chessed organizations which roam the hospital and assist women in labor for free and Sorah could have assumed that this midwife is part of the Chessed organization then she is exempt from paying.
2. However, if (and here as well we are dependent on the Dayanim and their assessment), if we can make a clear case (as Umdina) that Sorah knew or had a strong feeling that the midwife was not a hospital employee nor was she part of a Chessed organization, then in this instance she would be required to pay the midwife the minimum market wage for a midwife.
3. If Sorah is explicitly told by the midwife or by one of the hospital’s staff that she is a private employee who gets paid for her services, and Sorah continues to allow her to assist her in the labor/delivery, then we have an Umdinah that Sorah is agreeing to “hire” the midwife and she is obligated to pay her the full amount she asks for.
“If Not Now, Then When?”- Hillel
Ron YItzhchok Eisneman, Rabbi, Congregation Ahavas Israel, Passaic, NJ
