CCAR RESPONSA
Medical Confidentiality, Malpractice, and Moral Responsibility
5753.2
She’elah
Some years ago, twenty-two patients at a hospital, all of them children, accidentally received transfusions with
blood contaminated by the AIDS virus. When the hospital subsequently discovered the error, its administration
withheld this fact from the patients and their families for four years. The hospital justifed this action on the
grounds that to release this information would cause widespread panic and would be “extremely dangerous.” The
patients who subsequently contracted AIDS sued the hospital for damages and for compensation for medical
expenses resulting from their infection. These suits have failed, due primarily to the courts’ finding that the
hospital “met the standards of the time” in its blood-testing procedures and was therefore not guilty of
negligence.
From the standpoint of Jewish law and tradition, was the hospital justified in withholding from the patients the
information concerning the HIV contamination of the blood supply? And does the hospital have a responsibility to
provide tretament to the children who received the infected blood? (Rabbi E. Robert Kraus, Camarillo, CA)
Teshuvah
We will address these questions from the perspective of the Jewish law of medical malpractice and medical
confidentiality. To what extent are physicians and the medical establishment as a whole liable to compensate
patients injured as a result of their care? Is the physician or hospital required to inform a patient of his or her
condition when in the considered opinion of the doctors such information would likely be harmful to the patient?
We shall also consider these issues in the light of the halakhah‘s higher aspirations. That is to say, should
the technical law (the din) absolve the hospital of responsibility in this matter, is there a basis in the
tradition to hold its administration liable to a more stringent standard of ethical conduct?
1. Medical Malpractice in Jewish Law.
The practice of medicine is considered a mitzvah, a commanded act.1 For this reason, the
physician enjoys a wide immunity from monetary liability for damages caused by errors of professional judgment.
We find this idea in its classic form in the writings of R. Moshe ben Nachman (Ramban, 13th-cent.
Spain),2 who writes that the Talmudic law of the judge (dayan) provides a proper analogy
to that of the physician (rofei). Like the physician, the judge is in the position of handing down
instructions which, if incorrect, can result in depriving a person unfairly of his property or his life. Were he to be
held liable for these damages, the person knowledgeable in the law would likely refuse to serve as a judge.
Therefore, the halakhah protects him from liability, so long as he performs his judicial function in a
conscientious manner.3 The halakhah, argues Ramban, offers similar protection to the
physician, so that he will not refrain from practicing medicine out of fear that he will be held liable for
damages caused to a patient as a result of his treatment. As long as the physician performs the medical function in
a conscientious manner (that is, “provided that he takes all proper precautions and does not harm the patient
through negligence”), he or she cannot be sued in court for damages. While Ramban believes that the physician
does bear a moral obligation to pay compensation for damages,4 even this limited notion of the
physician’s responsibility does not go unchallenged. Some authorities hold that the moral obligation of which the
Ramban speaks applies only to the surgeon who injures the patient with a knife, but not to the physician who
causes damage by means of administering medications.5 Others, meanwhile, exempt the physican
altogether from even a moral obligation to pay damages, precisely on the grounds that medical practice is a
mitzvah and that doctors should not be held liable for an unintentional error resulting from an act that
they are commanded to perform.6
All this suggests that Jewish law takes an openly protective stance towards the physician, shielding him or her
from legal liability and perhaps even from moral liability for medical error that leads to a patient’s injury or death.
This protection, of course, is not absolute. As Ramban emphasizes, physicians who commit out-and-out negligence
(peshi`a), defined as conduct which a reasonable person (in this case, a trained professional) can be
expected to know will lead to damage,7 are indeed required to compensate their victims. In our case,
however, the courts have found that the hospital “met the standards of the time” in its blood-testing procedures and
observed all the safeguards then accepted in the medical community. In other words, no negligence was involved.
We could conclude that despite the tragic consequences of the blood transfusions, the hospital bears no
responsibility, legal or moral, to compensate the children or to provide them treatment should they develop the
AIDS virus.
2. Medical Confidentiality.
Did the hospital act improperly in withholding the information about the contaminated blood from the patients?
Recall that this decision was defended on the grounds that release of the news would induce “panic,” in the patients
themselves and, presumably, in the wider community. To the extent that this fear was a reasonable one, the
hospital can make a persuasive case under Jewish law in favor of its position. The predominant halakhic view is
that a patient in critical condition should not be informed of this fact.8 The notion here is that a
patient’s optimism and hope are vital factors in his recovery and that to deprive the patient of this hope is therefore
likely to hasten his or her death. Nor should the patient’s relatives be informed of his condition if we fear that their
sorrow will lead the patient to despair and to abandon the struggle for life. To the argument that one has “the right
to know” of one’s medical condition, the halakhists who take this view would respond that the preservation of life,
and not some abstract concept of rights and liberty, is the paramount concern of the physician. The medical team is
therefore duty-bound to conceal from the patient any information which, in their professional judgment, would
contribute to a deterioration in his or her condition. In our case, again, the hospital could claim that the “panic”
that would result from revelation of the fact of the tainted blood would be injurious to the patients. Thus, from a
Jewish legal standpoint, the hospital can make a strong case in defense of its actions.
3. The Higher Aspirations of Jewish Law.
Despite all of this, it can be argued–and we think persuasively–that a higher standard of conduct was demanded of
the hospital in this case. That argument rests upon upon what we would term the higher aspirations of Jewish law,
the deeper significance that lies behind the concrete details and precedents of halakhic history and which binds
them together in a framework of meaning and purpose.
Let us consider, first of all, the question of medical malpractice. We have seen that halakhah offers a wide
immunity to physicians from the requirement to compensate patients for damages. We have also seen that this
immunity is justified, not out of special sympathy with the physician, but on the grounds that medicine is a
mitzvah, the way in which we as a community fulfill the commandment of pikuach nefesh, the
responsibility to preserve human life.9 We exempt physicians from damages precisely in order to
insure that this mitzvah will be performed. We exempt them because, if we held them liable, they would
refrain from practicing medicine out of fear of financial ruin. We exempt them, in other words, mipnei tikun
olam, out of concern for the betterment of public life and the welfare of all.10 It is this concept,
therefore, which expresses the higher aspirations of Jewish law as these relate to the practice of medicine. That is
to say, the very definition of medicine, the structure of the medical profession and the rules concerning the
relationship between physician and patient are determined by the demand that medicine serve the public interest,
promote the general welfare, and achieve the goal of tikun olam. It is tikun olam which declares
the higher aspirations of Jewish medical law, which provides the background and the justification for the varied
rulings and precedents in halakhic history. It is because of this principle that, as we have seen, the law on occasion
assumes a lenient, “favorable” stance toward medical practicioners.11 But just as surely, there are
times when this same principle demands from us a very different kind of response. The halakhah, after
all, does not exempt physicians from liability for damages caused either maliciously or through gross negligence,
for to protect them in such cases would be to endanger society, not to better it; it would frustrate the goal of
tikun olam. Indeed, whenever the physician acts in a way that is contrary to this principle, he or she
ceases to practice “medicine” in the halakhic understanding of that term. Similarly, whenever the medical
profession acts in a way that undermines our conception of tikun olam, it forfeits our respect and our trust,
and it no longer serves as our agent in the fulfillment of the mitzvah of pikuach nefesh.
Given this understanding of the higher aspirations of Jewish medical law, our evaluation of the hospital’s actions in
this case takes on a very different tone. Granted that the hospital did not act “negligently” in that it met “the
standards of the time”; but did it act properly? Did it act according to its responsibility to contribute
toward a better world? Was it an agent for the realizaton of tikun olam? Our answer is no. It is not enough
that physicians and hospitals adhere to the letter of the law (the din) and thereby excuse themselves of
monetary liability, for the medical profession must be held to standards that go beyond the norm. For as a
physician is not just another professional, the hospital is no ordinary business. The hospital is the place where
human beings confront death and suffering, hope and mortality. It is a place where lives are saved, where the
mitzvah of pikuach nefesh is performed; but as the tragic consequences of this case teach us yet
again, our dealings with the hospital can be suffused with terrible pain and anguish. It is for this reason that the
medical profession has come in the past several decades to realize what we Jews have always known: that doctors
must heal the soul as well as the body. Hospitals today regularly employ chaplains and social workers, because they
are aware of the vital spiritual dimension of their responsibility to care for their patients. The hospital must
therefore conduct itself in all matters so as to retain the public’s trust and the confidence, for once it loses these, it
loses with them the ability to provide the necessary care for the emotional and spiritual side of illness.
In our case, we find that this hospital, by studiously ignoring for several years the effects of its actions upon these
innocent children, is no longer worthy of trust and confidence. Its conduct, though legally blameless, was at best
morally insensitive, at worst repugnant. Its actions, though they may have met the “standards of the time” as
recognized by law, seriously weaken the public’s trust in the medical establishment and in its ability to perform
faithfully the mitzvah of pikuach nefesh. The hospital, in short, did not live up to its obligation, as defined
in Jewish tradition, to go beyond the minimum legal requirement, to contribute to tikun olam.
Let us now turn to the hospital’s decision to conceal the fact of the tainted transfusions from the patients and their
families. For the sake of argument, we shall grant that the hospital is being truthful when it defends this
concealment on the grounds that it wished to avoid the spreading of panic. Still, despite the precedents cited above
which appear to support a physician’s decision to withhold “bad news” from a patient, the hospital’s conduct in this
case cannot be justifed. We say this, again, because the higher aspirations of Jewish law require such a response.
As we have seen, the halakhic approach to medical confidentiality is based upon the paramount value of medical
care: the welfare of the patient. The authorities who hold that physicians may conceal information concerning a
patient’s critical condition do so precisely because they believe that the communication of any news which will lead
to depression, despair, and the consequent weakening of the patient’s will to live is medically harmful. Such news,
therefore, like unnecessary drugs or surgeries, should not be “administered” to the patient. It follows that, in cases
where it is clearly to the advantage of the patient to know the truth of his situation, that truth ought to be revealed.
Medical thought today, proceeding from our heightened understanding of the importance of the spiritual dimension
of medical care, has come to see that it is generally to the advantage of the patient to be well informed of all aspects
of his or her condition. A feeling of control over one’s fate, a sense that one is able to make informed decisions
about one’s medical treatment, can be a powerful source of strength to a patient, a boost to morale and an antidote
to depression.12 The higher aspirations of the halakhah, which would have us look beyond
the specific rulings and precedents in order to comprehend the ultimate goals and purposes of Jewish law, would
therefore lead us to conclude that, while each case must be judged on its individual merits, in general “honesty is
the best policy.”13
What about the merits of our case? For our part, we can see no defensible reason for withholding the news
of the contaminated blood. Concealment cannot in any way have been beneficial to the patients. On the contrary:
what was called for was immediate monitoring of their medical condition so that treatment, if necessary, could
begin as quickly as possible. Nor was concealment helpful to the general public. In most cases, news such as this
eventually leaks out. And then, not only might the “panic” the hospital feared actually ensue, but the public also
loses respect for and confidence in those entrusted with its health and safety. The higher aspirations of Jewish law,
in other words, forbid the hospital from hiding behind this or that halakhic decision as a way of avoiding its
responsibility.
4. Reform Considerations. Our own Reform tradition, with its emphasis upon social justice, would clearly
demand that physicians and medical institutions be held to a high standard of ethical conduct, regardless of the
narrow assessment of legal liability. And our stress upon the value of personal autonomy would certainly argue
against the concealment from the patients of news concerning their condition, particularly in a case where such
concealment offers no tangible benefits to them or to the community as a whole. Moreover, we consider it our
special responsibility as Reform Jews who interpret Torah in order to apply its teachings to daily life to allow those
teachings to speak to us in their best and noblest voice. In our understanding, the true message of Jewish law lies
not in the precise holdings of this or that rabbi or in the consensus opinion of the current leading Orthodox
scholars, but rather in the principles and insights which give meaning to the individual rulings and which serve as
the moral and religious goal toward which all halakhic decision ought to strive. Put differently, we do not believe
that the halakhah can exist separately and apart from its higher aspirations. In this case, those aspirations
surely demand from us the answer we have reached.
5. Conclusion. The hospital was not justified in concealing the facts of this case from the patients, their
families, or the public. Moreover, it bears a significant moral responsibility to offer treatment to these children,
even if the courts have not found them liable for monetary damages. How this responsibility should be met is an
issue to be worked out among the parties. That it should be met is impossible to deny. And it is only by
meeting its responsibility that the hospital can live up to the standards demanded of it by the higher aspirations of
Jewish law.
Notes
- Turand Sh.A,. YD 336:1, drawing from Nachmanides (see below, n. 2), consider medicine a species of the commandment to save life (pikuach nefesh; Lev. 18:5 and BT Yoma 85b). Maimonides, on the other hand, learns the mitzvah of medical practice from Deut. 22:2, inasmuch as the commandment to restore a fellow’s lost object is expanded to include the restoration (saving) of his life (BT Sanhedrin 73a; Rambam, Commentary to M. Nedarim 4:4).
- Ramban,Torat Ha’Adam, Inyan Hasakanah (ed. Chavel, 41-42).
- BT Sanhedrin6b (and Rashi ad loc.), a midrash on II Chr. 19:6. The operative rule is ein lo ladayan ela mah she`einav ro’ot, “the judge can rule only on the basis of the evidence before him”; i.e., so long as the judge’s ruling corresponds to the facts and the law as he sees and understands them, he is absolved of blame should other evidence which he could not have been expected to know demand a different ruling.
- Ramban citesTosefta Baba Kama 6:6: the trained and licensed physician who causes damage to a patient is exempt under earthly law (patur midinei adam) but remains obligated under the law of heaven (chayav bedinei shamayim).
- R. Shimeon b. Tzemach Duran (15th century North Africa),Resp. Tashbetz, v. 3, # 82. Duran argues that injury caused with a metal implement is under Torah law a more obvious case of chavalah (physical damage) than is injury caused by medication. Given what we know about poisons and dangerous chemicals, however, this is a difficult distinction to maintain. See R. Eliezer Waldenberg, Resp. Tzitz Eliezer, v. 4, # 13.
- R. Nissim b.Gerondi, Chidushim, Sanhedrin 84b; Waldenberg, op. cit.
- De’iba`eileh la’asokei ada`ata; BT Baba Kama 21b, 52a, 52b and elsewhere.
- Ramban,Torat Ha’Adam, ed. Chavel, 46; Sh.A YD 338:1; Siftei Kohen, YD 338, # 1; Bayit Chadash, YD 338;R. Betzalel Stern, Resp. Betzel Hachokhmah, v. 2, # 55; R. Moshe Feinstein, Moriah, Elul 5744, 53; R. Immanuel Jakobovits, Jewish Medical Ethics (New York, 1959), 120-121; R. Shelomo Aviner, in Asya 3 (1983), 336-340; R. Yitzchak Zilberstein, in Emek Halakhah–Asya (Jerusalem, 1986), 163.
- See at note 1, above.
- The phrasemipnei tikun olam is applied to doctors in Tosefta, Gitin 3:13; that passage, in turn, is cited by Tashbetz, note 5, above.
- A similar case is that of doctors’ fees. Although one should not be paid for performing amitzvah (BT Bekhorot 29a), the halakhah permits physicians (like rabbis) to be compensated for their expenses and for the value of their time and training. To do otherwise would deter people from practicing medicine and thus frustrate the goal of tikkun olam. See Ramban, Torat Ha’adam (Chavel ed.), 44-45; Tur and Sh.A YD 336:2.
- See the essay of and the literature cited by Dr. Shimeon Glick inAsya 42-43 (1987), 8-15.
- Orthodox halakhists, too, show signs of coming to this conclusion; see R. YigalShafran, “Amirat ha’emet lacholeh `al matzavo,” Asya 42-43 (1987), 15ff.