MALPRACTICE SUITS AND THE PHYSICIAN

QUESTION:

What is the attitude of the Jewish legal tradition as to medical malpractice suits, which are so prevalent nowadays? (Asked by Dr. Carleton B. Chapman, President, The Common-wealth Fund, New York, New York.)

ANSWER:

BEFORE WE CAN consider the attitude of Jewish law on the specific question of malpractice suits, we must first understand what is the general status of the physician in the tradition. There is an often-cited deprecation of physicians in the last Mishnah of Kiddushin, namely, “The best of physicians [should go] to hell.” Taken alone, this would seem to express an abysmal contempt for the practice of medicine, an attitude which is unbelievable in the light of the fact that many of the greatest rabbis were also physicians. Actually, the denunciatory passage in the Mishnah discussed is not confined to medicine, but mentions almost every possible occupation and profession of the time, and then dismisses them all with the statement that ends the tractate, namely, that Rabbi Nehorai said: I would abandon every livelihood and just teach my child the Torah. Among the livelihoods that are summarily dismissed are such average and normal ones as storekeepers, shepherds, camel-drivers, meat-dealers, and among the whole list, physicians also.

The objection to these livelihoods is explained in the commentary, namely, that each one involves some temptation to sin. The storekeeper is tempted to overcharge, the shepherd to let his sheep graze in someone else’s field. As for the physician, the danger in this livelihood is explained by Rashi—that he may forget to be humble in the presence of God and may avoid healing the sick who cannot afford to pay. What the Mishnah, then, really means in this whole listing of livelihoods is: You cannot avoid adopting one of these livelihoods, but beware of the spiritual danger that each one may entail. Therefore it is clear that this denunciation of the physician is not to be taken literally, any more than the denunciation of the storekeeper or the shepherd, etc.

It might be mentioned that this harsh statement also troubled Isaac Lamperonti, himself an honored physician in the city of Ferrara in the eighteenth century. In his encyclopedic work, Pachad Yitzchok, under the heading of the statement, “the best of physicians … ” he says that to the extent that it does apply at all, it might apply only to surgeons who, with the use of instruments, may shed blood more than needed, etc., but it could not apply to physicians who just use medicine. Evidently, Isaac Lamperonti was not a surgeon, but he was an honored physician; in fact he was credited with having saved the city of Ferrara in a plague, and the city put an honorary plaque on his house.

The true status of the physician in Jewish legal tradition is clear from the statement given a number of times in the Talmud, namely, “God gives permission to the physician to heal.” The statement is made in commentary of the verse in Exodus 21:19. This “permission” is necessary because God Himself is our true Healer: “I the Lord am your Healer” (Exodus 15:26). Since God is our Healer, then it would be presumptuous for man to usurp God’s place. The Tosfos (Baba Kamma 85a) explains the problem as follows: If someone suffers from a man-made injury, we might understand how a human physician might have the right to cure him, but if he suffers from some God-sent sickness, would it not seem presumptuous for a human being to attempt to undo the act of God? Therefore it is necessary to state what the Talmud does state— that the physician is given divine permission to heal. And, as is further explained, he should not avoid difficult cases and say, “Why should I take the risk of dealing with this invalid? Maybe he will die and I will be accused of carelessness.” This he must not say not only because he is a divine emissary, but because healing then becomes a mitzvah, a commandment incumbent upon him (cf. Bes Yosef to Tur, Yore Deah 336).

Just as the physician, being God’s emissary, has an inescapable mandate to heal the sick, so does the sick person have a duty to consult a physician and not say, “God will perform a miracle on my behalf” (b. Shabbat 32a). He should consult a physician and follow his instructions.

Since the physician is mandated to heal every patient who needs him, it is inevitable that some patients will die under his hands, so it is necessary to consider the direct question that is asked here, namely, to what extent is the physician legally liable for some unfortunate results of his ministrations? There are varying answers to this question, and the legal scholars try to harmonize them into a consistent code of law governing the situation. First of all, it is stated (Tosefta Gittin 4:6) that if a patient dies through no malice on the part of the doctor, the doctor is free from guilt. This decision is based upon the general principle that if a man performs a mitzvah and in performing it some harm comes inadvertently, he should not be held liable. Thus the Tosefta makes this analogy: If a father strikes a child in disciplining him (which is his duty) and a fatal accident occurs, or if an emissary of the court is sent to flog a culprit and the culprit dies, these men are to be held guiltless. They were performing a duty and they did not intend the unfortunate result. The Tosefta includes the physician in this list because he is performing the mitzvah of healing. This freedom from guilt refers to a physician “authorized by the court,” which would mean, for our purposes, any authorized physician.’ ‘The court would not authorize a physician who is unskilled” (cf. Tur, ibid.). This freedom from guilt constitutes an exception in favor of the physician because generally any other man is held liable for his negligence even if no malice was involved; but a physician is not held liable for unintended misfortune. This exception is justified, mipne tikkun olom, “for the maintenance, or the establishment, of society.” This is explained by David Pardo (cited by Preuss, Biblisch-Talmudische Medizin, p. 30) as follows: If physicians would be constantly endangered because of non-malicious error, then no one would risk choosing this form of livelihood and thus the safety of society (tikkun olom) would be endangered. Therefore it is a public necessity that the physician be held guiltless in cases of unintended misfortune.

Of course, any physician who with malice aforethought kills or injures a patient is liable to all the punishment and the reparations prescribed by law. Or if he has erred and knows he has erred and realizes that he has been careless, then he must pay the damages as outlined in the law (see the types of reparation, healing, loss of livelihood, pain, etc., all detailed in the tractate Baba Kamma).

Because it is difficult to know whether there was serious neglect on the part of the physician, and whether or not he acted to the best of his knowledge, the Tosefta therefore adds, he may be free from human punishment, but he will be judged for his neglect by God.

Thus it is evident that this is an area in the law which still needs clarification, and the scholars, as has been said, attempt to achieve it. The fullest discussion of all the elements involved is in the responsa of Simon ben Zemach Duran, Vol. III. Duran himself was a physician in the Balearic Islands in the fourteenth century. Due to the religious persecution in Spain and in the Balearics, he fled to northern Africa, where he became a practicing rabbi because, as he said, the art of medicine was not appreciated by the people. He gives perhaps the fullest statement of all. Nachmanides, a century earlier, also a physician, discusses the matter as has been quoted in his Toras Ha-Adam (Venice ed., beginning pp. 12b ff.). The great codes, the Tur and the Shulchan Aruch (Yore Deah

336), give a fairly clear statement of the law. The fullest discussion in modern times is to be found in Preuss, Biblisch-Talmudische Medizin.

To sum the matter up, we may say the situation is as follows: The physician is highly honored in the law, and the practice of his profession is a religious duty which he may not evade. For malicious injury he is liable to all the punishments of the law. If there is no malice, but the unfortunate result of the treatment is due to an obvious and realized error that he had made, he is, according to some authorities, liable to damages. For an unintended and unrealized injury, he is held free of punishment even though the average man is punished for such unintended negligence. In brief, if there is no manifest malice and no clear and obvious error, the physician is, in Jewish law, free from liability for any unfortunate results of his treatment.

Addendum

The Sefer Assia, edited by Dr. Abraham Steinberg in Israel, is a collection of symposia and essays on modern medical practice and Jewish law. On page 283 he has a summary of the various attitudes of the Jewish law on the mistakes that physicians might make and the consequences of them. The summary includes most of the material mentioned above and is summed up by Eliezer Walden- berg, who is, as it were, the resident rabbi of Shaare Zekek Hospital in Israel. He says the following: “In our time, our conclusion is that no doctor who is not authorized to practice medicine and is not skilled and has not received a diploma may practice medicine. Therefore the essence of the opinions of most of the lines of thought in the Halachah is expressed by Rabbenu Nissim (above) to free the doctor under all circumstances” (see Tzitz Eliezer, Vol. V, #23).