Shabbat Parashat Yitro | 5770
P’ninat Mishpat: Medical Malpractice – part I
(based on Eit Ladun – Rav Nir Vargon, Rav Itamar Blaugrond -
We have discussed the culpability of people who gave bad financial advice, seeing the distinctions in their levels of proficiency in the field at hand and the matter of whether they were paid for their services (which makes one more culpable). The rules, though, are somewhat different regarding medical mistakes (malpractice, as we call it).
The Shulchan Aruch (Yoreh Deah 336:1-2) says: “One should not deal with medicine unless he is an expert and there is no one greater than he [in the place], for if he does not act so, he is like one who spills blood. If he did try to heal someone without the court’s permission, he is obligated to pay for damages, even if he is an expert. If he tried to heal with permission and made a mistake that caused damage, he is exempt from paying in the courts but has an obligation to the Heaven [a moral obligation to pay]. If he killed and it is known that he did so by negligence, he goes to exile as a result. A doctor may not take pay for the knowledge and education he possesses, but he may be paid for his toil and his refraining from other work.”
We see then that one factor regarding a doctor’s culpability is receiving authorization. Neither the level of his expertise nor the matter of whether he was to be paid impacts on whether he has to pay for his mistake. (The latter may be because he may not receive a standard type of payment.) Nowadays, permission of the court is replaced by a government-sponsored license (Aruch Hashulchan, YD 336:2).
The Ramban gives the following explanation for the impact of the court’s permission on the doctor’s exemption. The gemara (Bava Kama 85a) sees in “he shall certainly heal” (Shemot 21:19) the source that a doctor was given permission to heal. He explains this is necessary so that a doctor should not say: “Why do I need this headache? Maybe I will accidentally kill someone.” However, the Ramban was troubled by the fact that since the Tosefta says that a doctor who killed by accident has to go to exile, we see he is liable. He posits that a doctor is like a dayan (rabbinic judge) who is exempt from standard errors (“a dayan has only what his eyes see”). Thus, the Torah was interested in encouraging people to be involved in both professions and exempted them from actual payment as long as they had permission and did not act negligently.
Harav Yaakov Ariel (Ohala Shel Torah I, 55) questions the Ramban on where do we see a special exemption for a doctor. After all, if he is an expert and is not paid (as he is not supposed to be), he is anyway exempt just by following the regular rules of craftsmen (Bava Kama 99b). He answers that it is talking about a case where he took money to heal, and thus as a craftsman, he should be obligated to pay. The Rabbis exempted him in order that society would function more smoothly. Even though nowadays doctors are paid enough that they will continue to serve as doctors even if they could be sued like any other worker, Harav Ariel says that the logic to encourage them in this way still continues.
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