MALPRACTICE SUITS AGAINST RABBIS

QUESTION:

The Church Mutual Insurance Company founded by Lutheran ministers in 1897 has recently begun to sell malpractice insurance to ministers. This is an innovation and is based upon reports that there have been suits for malpractice when the minister gave wrong advice in counselling. However, a careful study of the situation revealed that at the very most, there were only two such suits in the country. So it has been charged that the whole situation must have been blown up in order to sell insurance. However, nowadays when people are, as one person interviewed described it, “sue crazy,” and when malpractice suits have already greatly multiplied against doctors, lawyers and accountants, this type of suit against ministers may indeed increase. Therefore the question now asked is: To what extent, on the basis of Jewish tradition, is a rabbi to be held liable for harm coming from wrong advice that he had given. The question is still theoretical and, it is hoped, may never become practical, but it is worth preliminary investigation from the point of view of tradition. (Asked by Rabbi Lawrence J. Goldmark, La Mirada, California.)

ANSWER:

In one of the suits the minister’s lawyer said that the suit is an anti-constitutional interference with the separation of church and state. This may well be argued on the ground that while lawyers and doctors may not practice unless they are licensed by the state, ministers are not licensed by the state, but are licensed by their denomination. The only authorization which the state gives to the minister is that if he is already accepted by the church as a minister, the state then gives him the right to officiate at marriage, for the laws governing marriage are state laws. Yet even in the case of marriage, in which the state has authority over the work of the minister, is it at all conceivable that the minister could justly be sued for malpractice when a marriage at which he had officiated turns into a tragic mismatch? When one sees what a flood of suits could start in this all-too-frequent situation, it is clear that the courts cannot permit such suits. However, in all other activities of the minister except marriage, the state has no authority. Nevertheless the minister does a great deal of counselling and in this activity, he often overlaps the work of the psychiatrist who is a professional, licensed by the state and subject in a suit to punishment by the state. Therefore when the minister in his counselling does psychiatric work, it is there that there would be the chief ground for possible malpractice suits.

Therefore our specific question here is: To what extent does Jewish tradition hold a rabbi liable for harm resulting from his counsel? Actually there is some sort of liability, due to the historic function of the rabbi as judge. If a rabbi is part of a court (a Bet Din) in the case of some financial dispute and gives a wrong decision, then, if this decision cannot be reversed when the harm due to the mistake has already been done, there are circumstances in which the judge (i.e., the rabbi) must make up for the damage from his own property (Hoshen Mishpat 25). Therefore we would say that if some Jewish businessman would bring a case before a Bet Din of rabbis and a wrong decision was given, there are indeed, in Jewish law, certain circumstances under which the rabbi is liable to make restitution. But, even so, the businessman would not need to institute a malpractice suit in the civil courts, since Jewish law under which the case was heard already provides for the restitution.

But actually this situation is rare. Few people bring their business disputes nowadays to a Bet Din and if they do, then, considering the long and detailed development of Jewish law, there is almost no likelihood of such liability being incurred by the rabbi judge due to a wrong decision.

The only potential cases in which a modern malpractice suit is likely to occur is in the field of family or personal counselling. We must therefore ask: Is such counselling an inherent function of the rabbi? It must be understood at the outset that personal and family counselling are indeed an essential part of the work of the Christian ministry. At the very beginning of the Christian ministry Jesus said to disciples: “Feed my sheep” (John 21:16). Since that beginning, the guidance of each individual Christian was a central responsibility of the pastor, whose very title means “the shepherd.” The church has a name for this individual counselling. It is an historic name for an historic function, cura animarum (the healing of the spirit). In the Lutheran Church the term used is Seelensorge. The Latin and the German terms could be translated into the Greek as “Psychiatry.” The “healing of souls” is the essential task of the Christian minister. So if a Christian minister errs in his counselling, one could well argue (in a suit) that he has made a professional error, as a doctor who gives the wrong medicine has made a professional error.

This personal guidance has never been an essential part of the rabbi’s task. He was, as mentioned above, the judge, but primarily he was the teacher. People would of course come to him for advice, as they would to any other person whom they respected as intelligent. But giving the advice was not an essential or required part of his profession. He is a teacher, not a pastor, a shepherd of the flock.

Of course in recent years counselling as a practice has developed among our rabbis. This is understandable. Partly it is due to the influence of the Christian environment and partially because in these confused and troubled times people increasingly come to him for advice. But unlike the Christian minister, the rabbi is not required by his profession to give advice in every situation. He may, if it seems proper to him, refuse to interfere. For it must be understood that to the extent that rabbis follow the practice of Christian clergy and give psychiatric advice, they run the risk of such suits if such malpractice suits will indeed multiply.

This at least we can say in defense of the rabbi in such a suit. We share the Christian defense of the separation of church and state, but we also have the additional defense that such counselling is not a required part of the rabbinical profession and, therefore, such mistakes cannot be ascribed to professional failure. It is not malpractice on our part, because counselling is not the required practice of the rabbinical profession. It is simply advice given by one person to another.

What we can learn from the threat of such suits for which this clerical insurance company is now selling insurance, is that we should be careful in our counselling not to infringe upon the work of a psychiatrist, and always to remember that while we do practice counselling when necessary, this counselling is not an essential part of the traditional function of the rabbinate, and that we will not be neglectful of our rabbinical duty if in certain cases we say: “This situation is not one in which I can be of help.”