What is the Torah ethical position on charging a fee for necessary services, and what about charging excessive fees during times of peak demand?

Our Gemara on Amud Aleph tells us 

“הֲרֵי שֶׁהָיָה בּוֹרֵחַ מִבֵּית הָאֲסוּרִין, וְהָיְתָה מַעְבּוֹרֶת לְפָנָיו, וַאֲמַר לֵיהּ: טוֹל דִּינָר וְהַעֲבִירֵנִי — אֵין לוֹ אֶלָּא שְׂכָרוֹ.

One who was running away from prison and came upon a ferry. He said to the ferry man: Take a dinar, i.e., he offered to pay an amount much larger than the standard fee, and take me across the river. Despite the escapee’s commitment, it is ruled in the baraisa  that the ferryman receives nothing other than his usual rate, as the escapee is legally exempt from paying the higher amount he had agreed to pay.

אַלְמָא אָמַר לֵיהּ מְשַׁטֶּה אֲנִי בָּךְ — הָכָא נָמֵי, מְשַׁטָּה אֲנִי בָּךְ.

Apparently, one could have said in such a case: I was deceiving you and never really intended to live up to my side of the agreement, and therefore it is not an actual debt. 

This is also codified in Shulkhan Arukh (CM 264:7). However, Shulkhan Arukh makes an exception. If the item in question is something whose price can be high and variable, such as medical services, he must pay the amount he committed.

Be’er Hagolah 19 (Op. Cit.) clarifies that this is limited to the actual medical service, however one may not price-gouge for the medicine itself. I presume this is because the medicine has a more fixed and customary price.

In general, the subject of a doctor taking payment for services is subject to some halakhic controversy. How is it allowed, since it is the Mitzvah of doing kindness and even Hashavas Aveidah? (Returning a lost object — the person’s health, see Rambam commentary on Mishna Nedarim 4:4, based on Gemara Bava Kama 81b that discusses Hashavas Aveidah as an obligation to help a person who is physically lost.) 

Shulkan Arukh (YD 336:2) codifies that a physician may charge fees for his actual time spent working, as there is financial opportunity cost (sechar batala) in that he could have done other work and earned money.  However, he may not charge for his knowledge alone, as this is part of the mitzvah of Hashavas Aveidah.

The problem with this formulation is that we all know most doctors charge much more than the average hourly rate than almost any other profession.  In fact, sechar batala is the same heter that Torah teachers use (see Shulkhan Arukh 246:5).  Last I saw, rebbeim and klei kodesh do not make the same amount as doctors!   

Rav Moshe addressed the issue of physicians fees in Iggeros Moshe (YD 4:52).  Rav Moshe, with his keen sense of practicality and direct honesty, rejects the idea of sechar batala in a modern sense.  He asks rhetorically, “How would the doctor know how much money he could make in another profession to compare?” And, if you were to argue that the doctor could have been using the same time to see gentiles for which he could charge a fee, who says his practice base is in a neighborhood where he could easily have clients who are gentiles? We know that many doctors who have practices in the frum community have a client base largely in that community via word of mouth recommendations.

Rav Moshe’s resolution to this problem is two-pronged:

  1. Since the frum community wants specifically frum doctors who understand their culture and can relate to their needs, there is a defacto collective mechila (acceptance) that they need to pay them the going rate for their services, as otherwise no one would go through the rigorous training and expense that it takes to become a doctor.
  2. Sechar betala depends on actually having another profession.  Since it is reasonable and desirable that a doctor be fully focussed on his or her craft so they perform at peak, it is understood that they be fully devoted to this professional work and none other.  Thus, there is no available sechar batala to compare their work to, and they can choose this profession and even “become wealthy from it.”

Some other ideas about charging fees that Rav Moshe did not mention. The Gemara in Bava Kama 85a quips:

אסיא דמגן במגן, מגן שוה

A doctor who heals for no cost is worth his “fee”, that is to say, nothing.

While this Gemara cannot be fully applied to the halakha, as the Gemara might be dealing with a gentile doctor, it is still noteworthy in terms of the psychology of the matter, and supports the idea in Rav Moshe’s teshuva.  That is, on a practical level, the physician who is not properly compensated, in the long run, just will not do his or her job well, which is against society’s interests.

Finally, there also is a fascinating Tosafos Harosh (Berachos 60a, “Mikaan”). The verse (Shemos 21:19) “And he shall surely pay for his cure” actually may be teaching that a doctor is permitted to charge a fee.  Tosafos Harosh offers the following rationale: So that he will engage fully in his efforts to care for the sick.  Apparently, Rav Moshe felt that this opinion in Tosafos was a minority opinion and did not feel it to be enough rationale for halakha le’maase.

One final observation from this Responsum of Rav Moshe.  He opens up with this comment: 

“It is not a worthy matter to raise doubts about a long established customary practice within the world.”  Rav Moshe was reluctant to spend time discussing a halakhic justification for a practice that obviously has been in effect for generations, without major objection.  

Wow! That is an idea that, in and of itself, is a world of mussar and Torah!


Translations Courtesy of Sefaria, (except when, sometimes, I disagree with the translation cool.)