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Shabbat Parashat Mishpatim | 5770
P’ninat Mishpat: Medical Malpractice – part II
(based on Eit Ladun – Rav Nir Vargon, Rav Itamar Blaugrond - Halacha Psuka, vol. 34)
[We saw that a doctor who damages is more likely to be exempt than those involved in parallel cases of damages, if he was authorized to serve as one. This is so that people will not be discouraged from entering the field.]
Let us deal now with a doctor who acted negligently. The Ramban says that his exemption is contingent on his being careful as one would expect regarding matters of life and death and not damage through negligence. It is unclear, though, whether when he is not exempt, his obligation is legal or only moral. The Perisha (Yoreh Deah 336:6) and Shach (336:2) say that the exemption refers to cases of mistakes, not intentional damage, which implies that a doctor would be exempt in a case of negligence. The Tosefta in Gittin (3:8) also distinguishes between a mistake and an intentional act. On the other hand, the Tosefta in Bava Kama (9:11) indicates that the obligation extends beyond cases of intentional damage. However, the the Aruch Hashulchan (YD 336:2) and B’er Moshe (84) say that his obligation is either for exile for death or a moral obligation of damages. In this way, he answers the Yad Avraham’s (YD 336:1) question of why someone who is authorized by beit din should require exile if he kills if, in general, one who kills during authorized activity (e.g., one who carries out corporal punishment for beit din) is exempt from exile. The answer is that here we are talking about one who was particularly negligent.
The Tashbetz (III, 82) also does not obligate in cases of simple negligence; however, he explains the obligation of the Tosefta in Bava Kama as a full legal obligation. He posits that the doctor’s exemption is when the diagnosis and strategy were correct, just that a mistake was made during the treatment. When the entire treatment was flawed, it turns out that he was not involved in healing. Based on this approach, the Shevet Halevi (IV, 151) says that if a doctor operated in a location he should not have, he may be obligated. Only if it was not possible to determine where he should have operated would we say that he is exempt because of extenuating circumstances.
Along similar lines, the Tzitz Eliezer (V, Ramat Rachel 23) says that if a doctor made the right diagnosis but injected the wrong substance, he is obligated. Here too, he turned out to not have been healing, and he follows the rules of a regular person who damaged. In contrast, if the therapeutic steps were planned and basically carried out correctly, just that their quality was sub-par, he is exempt as long as he did not do so intentionally.
Still it seems that if he strayed from the accepted guidelines, he is obligated. After all, the doctor’s exemption is in order to encourage people to be involved in the medical field. Punishing one who does not follow guidelines does not distance people from the field; on the contrary, it encourages better medical care, as it is good for a doctor to know that if he fails to do as he is supposed to, he may have to pay for it. Only when he exerted the expected effort and was not able to succeed is he exempt.
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