(2011/5772)

The following was written while Ariel was a student at TABC.

In the past two decades, doctors’ insurance bills have skyrocketed partially due to the increase in malpractice lawsuits. Halachic questions arise as to a doctor’s degree of liability in a case of medical malpractice; when, if ever, can a Jew sue his doctor in a case of liability? Much of this article is based on a Shiur given by Rabbi Yissochor Frand.

Sources

The Tosefta in Bava Kama (6:6) states that an expert doctor authorized by Beit Din to practice medicine is exempt from punishment by human law but held accountable in heaven if he damages someone.

The Tosefta in Gittin (3:13) distinguishes between accidental and intentional damages on the doctor’s account. It states that if an expert doctor receives permission from Beit Din to practice, and damages someone mistakenly, he is exempt because of Tikkun Olam (fixing the world; prudent public policy). If he and others of his ilk could be sued, other potential doctors might be scared to enter the medical profession for fear of facing the same fate. On the other hand, if he damages the person purposely, he is liable for the injury incurred.

Rishonim—Opinion #1: The Ramban             

The Gemara (Berachot 60a) states that the phrase “VeRapo Yerapei” (Shemot 21:19) grants doctors permission to treat patients. The Ramban (Torat HaAdam) asks why the Torah needs to grant doctors permission to practice medicine. Wouldn't a person want to practice even without the Torah's permission? He answers that a person may not want to become a doctor out of fear of the pressure, and accidentally killing patients and suffering the consequences. Therefore, the Torah specifically gives a doctor permission to treat patients without having to worry about injuring or killing the patients, Chas VeShalom. However, there remains, according to the Tosefta in Bava Kama, a punishment in heaven for damaging someone, which might discourage people from becoming doctors. The Ramban draws a parallel between a doctor and a judge. He says that just as a judge who makes a mistake in his judgment and is unaware of his mistake is exempt even from heavenly punishment, so too if a doctor errs unintentionally and is unaware of his error, Halacha deems him exempt even from heavenly punishment. Only when the doctor or judge is aware of his mistake is he liable in heaven.

It seems that according to the Ramban that a doctor who damages someone unintentionally has no responsibility to pay for the damage caused to his injured patient, and all retribution is carried out on a heavenly level. However, if a doctor wishes to escape the heavenly punishment he may either pay for causing injury or go into exile.

Rishonim—Opinion #2: The Tashbetz

Rav Shimon Duran, in his Sefer Tashbetz, offers another view regarding medical malpractice. He rules that a doctor is not liable at all for injuring his patient with drugs. Mazik, the Halachic act of damaging, exists only if the doctor makes an incision into the patient, such as that performed in surgery. However, if he doesn't break the skin of the patient, the doctor can not be Halachically defined as having damaged his patient, because he is treating only what he can see. How can you blame a doctor for treating what he does not see? Subsequently, the Tashbetz comes to a conclusion that while a doctor is exempt from all punishment for damaging a patient with drugs, he is liable in heaven for damaging a patient when performing surgery.

Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer, Ramat Rachel 23) attacks the Tashbetz's view. How can say that damaging a person with drugs is not considered an act of Nezek? Does this mean that if the doctor gives his patient poison he is exempt from any punishment? Furthermore, what kind of excuse is "He only treated what he saw"? This is still an act of damage!

Rishonim—Opinion #3: The Ran

The Gemara (Sanhedrin (74b) draws a parallel between doctors’ treating animals and doctors’ treating people. It states that just as a doctor is not liable for injuring an animal, he is not liable for injuring a human being. The Ran (Chiddushei HaRan ad. loc.) thus comes to a conclusion that this Gemara disagrees with the Tosefta, and says that if a doctor mistakenly injures a person, he is exempt from punishment even on a heavenly level. The Ran says that a doctor had permission to treat the patient and treated only what his eyes could see, so we can not be upset with him. Therefore, a doctor who makes a mistake is not a deliberate sinner, but an Oneis (someone placed in a situation entirely beyond his control), who is exempt even in heaven.

Shulchan Aruch

The Shulchan Aruch (Yoreh Dei’ah 336) rules that a doctor cannot treat a patient if he knows that there is a better doctor available. If there is a more qualified doctor around, and the inferior one treats the patient and injures him, he is liable. Furthermore, one not only needs to be a Mumcheh, an expert in one’s field, but one must have authorization from Beit Din to treat the patient as well. If one is an expert in the field without permission from Beit Din to practice, and injures someone, he is exempt from punishment in Beit Din, but is liable in heaven. The Shulchan Aruch clearly adopts the view of the Rambam.

The Aruch HaShulchan and Rav Waldenberg assert that nowadays the equivalent of going to Beit Din for permission to practice would be getting authorization from the government (such as the license to practice medicine). Both the Beit Din and the government serve as representatives of the community bestowing the right to practice.

The Aruch HaShulchan comments that the doctor is liable only for punishment if he acted lazily or incompetently. However, if he was doing his best, and the injury that he caused came from a mistaken judgment call, the doctor is exempt even in heaven. Rav Shlomo Zalman Auerbach, cited in Nishmat Avraham 2:231, agrees with this point.

Rav Waldenberg (Ramat Rachel 23), on the other hand, says that if a doctor acted incompetently he is not only liable in heaven, but in Beit Din as well. This is a case of Karov LeMeizid, where the action that the doctor performed was close to being done on purpose. However, if the doctor faltered on a judgment call, he is exempt from punishment in Beit Din, and is liable only in heaven. Teshuvot Minchat Yitzchak (3:105) agrees with Rav Waldenburg's view.

Rav Waldenberg quotes the Tzeidah LaDerech who suggests an alternate read to the Shulchan Aruch. He argues that the Shulchan Aruch's case is where a person presents Beit Din faulty documentation of his doctor’s license. Beit Din then grants the doctor permission to practice, and the doctor damages someone. Following the damage, Beit Din realizes that the documents were faulty and the person should not have been granted permission to practice in the first place. In this scenario, the Shulchan Aruch rules that the doctor is liable only in heaven. However, since he technically had permission from Beit Din to practice, he is not liable for punishment in Beit Din.

Teshuvah of the Chatam Sofer

A woman once presented the following scenario to the Chatam Sofer, and had a question about it (Teshuvot number 177). Thieves broke into her house and her maid fell unconscious from the shock. The woman panicked, and in an effort to help her maid, she poured wine down the maid's throat. Tragically, in the panic, she confused wine for kerosene, and the maid was killed. What type of Teshuvah, repentance, was needed?

The Chatam Sofer answered that the woman meant well and did all she could to help her maid. The liability of murder is not as strict when Pikuach Nefesh, saving a life, is on the line. Therefore, the Chatam Sofer said that the woman needed only a small atonement. Because of the urgency of the situation, we are very lenient because we do not want to dissuade people from trying to save lives.

Based on this idea, the Chatam Sofer would most likely hold that the immunity granted to doctors when injuring patients would be granted to any medical professional or "good Samaritan" who is involved in the Mitzvah of Pikuach Nefesh.

Conclusion

To summarize, all authorities agree that a doctor whose malpractice was intentional is liable and should be punished for his negligence. Later Rabbanim agree that if a doctor meant well and was trying his best when treating his patient, he is completely exempt from punishment. Furthermore, all authorities agree that if the doctor harmed his patient B’oness, the doctor may not be sued for damages.

Postscript from Rabbi Chaim Jachter

The Halacha quite obviously is far more lenient on physicians who err in the course of treating patients than current American civil law. The skyrocketing costs of medical malpractice insurance are passed to consumers who are suffering greatly from the ever higher cost of health insurance. If the civil law would be amended to more closely follow the approach of Halacha which limits physicians’ exposure to liability, malpractice insurance costs would be lowered. This, in turn, could lower fees charged by physicians and thereby make a significant contribution in the efforts to make health insurance affordable.