Hilchos Choshen Mishpat

Volume II : Number 25

Medical Malpractice In Halacha

Question:

A. What are the parameters of the Halachic obligation of a doctor to heal?

B. If a doctor injures a patient through malpractice, does he have Halachic liability?

Answer:

1. The Torah permits a doctor to cure and heal. It is a great Mitzvah to heal the ill, and is incumbent on anyone who is licensed to do so by the proper authorities. A doctor who has the ability to cure the sick may not refrain from doing so because he is fearful that he may make a mistake and cause injury to the patient. (1)

2. A licensed surgeon that causes injury to a patient during the course of surgery through carelessness is obligated in Dinei Shamayim (laws of heaven) to pay the patient for the damage that he has inflicted. If death was caused by his careless actions, he must take steps to do Teshuva (repent) for his actions.

   If the doctor was not licensed to do the operation or procedure which resulted in injury to the patient, although he may have expertise in this area, he must compensate the patient, just as anyone who injures his fellow man must do. (2)

   However, if he was licensed and followed accepted medical procedures, and the operation was not successful, the doctor has no liability at all for any injury to the patient.

3. If a doctor misdiagnoses an illness, and as a result of this prescribes an incorrect medication, or performs an unnecessary operation, or if a patient has an allergic reaction to a medication used by an anesthesiologist, or if he gave an incorrect dose, and as a result the patient was injured or died, the Halacha is as follows:

   If the doctor had the opportunity to consult with other doctors (especially those more expert than he in this field) and did not, the doctor is obligated to pay for the damage that he has caused in Dinei Shamayim, and must do a proper Teshuva if his failure to consult with other doctors caused the injury or death. (3)

   However, if he did not have the ability to consult other doctors, e.g. the patient is in an emergency situation such as in a terrorist attack or on a battlefield, or if an intern is staffing the emergency room of a hospital and suddenly receives a patient in critical condition who needs an immediate operation, and therefore does not have time to consult other doctors or do the required tests before starting the procedure, he has no liability for the damage caused. (4)

Sources:

(1) This is stated in the Shulchan Oruch (Yoreh De'ah 336:1) and in the Shach and Taz there. The source for this is the Tosefta in Bava Kamma (6:6) and in Makkos (5:2).

(2) The source for this is the above mentioned Tosefta in Bava Kamma, and is stated in the Shulchan Oruch (ibid.) and the Biur HaGra there (5).

(3) This is true even if the doctor did not consult others because his pride prevented him from doing so. Although a Bais Din can obligate a layman who injures his friend accidentally, a doctor is only obligated in Dinei Shamayim. Our Chazal have given a special dispensation to doctors who injure in the course of their practice, so that they would not be discouraged from practicing their skills. This obviously only applies when the injury was caused unintentionally. If a doctor intentionally injures someone, he has the same liability as a layman, as is stated in the Shach there (2).

(4) This is stated in the Teshuvos HaTashbatz (Vol. 3 Siman 82), and in the Birchei Yosef (Yoreh Deah 336:4-8).

The Tashbatz there asks, however, that we find in the Gemara (Makkos 8a) that if an agent of Bais Din, or a father, were to injure someone during the course of disciplining them, they are not liable, since they are involved in the performance of a Mitzvah! Why should a doctor who injures a patient be different?

He answers that regarding a doctor, if he would have been careful he would have operated on the correct limb, or would have prescribed the proper medication. Therefore, he wasn't actually doing the Mitzvah of practicing medicine, this was malpractice. However, when the Torah exempts a father or agent of Bais Din, they were engaged in what they were supposed to be doing, disciplining their charge, and if in the process of doing so they inflict injury, this should be considered completely accidental, and they can not be held liable at all.

The Teshuvos Chassam Sofer (Orach Chaim 177) discusses a very tragic but interesting case. A maid working in a certain home fainted. Her mistress tried to come to her aid by pouring some whiskey down her throat. However, she mistakenly grabbed a bottle of poison and poured it down her throat, causing her maid's death. The Chassam Sofer ruled that the mistress has no liability at all, and does not even have to do Teshuva for her actions. This is very puzzling, considering that we stated in Answer B, that a doctor must do Teshuva when he mistakenly causes the death of a patient. Why should this case be any different?

It appears that an important distinction must be made between a doctor who has carelessly misdiagnosed, and a layman who is attempting to heal in an emergency situation and makes a mistake. In the course of studies in medical school, a doctor receives training to not make hasty decisions, even in emergency situations. This is an essential part of his training as a doctor and subsequent practice of medicine. People must rely on his ability to remain level headed and cool even in times of crisis, and not make careless mistakes. Consequently, he would be liable for making a mistake such as misdiagnosing, even in an emergency situation. If his actions would result in death to the patient, he would be classified as someone who kills accidentally and during the times when our Bais HaMikdash was standing, he would have to go to an Ir Miklat - a city of refuge, as is stated in the above mentioned Tosefta.

Obviously, if the mistake was not a result of carelessness, rather the doctor simply did not have the time available to wait for results of lab work and to consult with other doctors and therefore misdiagnosed, the doctor has no liability. He would be considered an "Owness" since he simply did not have the ability to give the proper medical care, and no carelessness was involved.

On the other hand, if a layman were suddenly thrust into an emergency situation and does not have the ability to call trained medical technicians for help (as in the case of the Chassam Sofer), we can only expect them to act as any other normal human being might act under such pressure, to do what seems correct to them under the circumstances, and it can expected that in the panic and turmoil, at times they will be less than careful. They can not be held up to the same standard as a medical professional who has been trained to remain cool even in emergency situations.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available from your local Sefarim store.

Feedback is appreciated! It can be sent toatendler@torah.org.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!