Hilchos Choshen Mishpat
Volume II : Number 25
Medical Malpractice In Halacha
A. What are the parameters of the Halachic obligation of a doctor to
B. If a doctor injures a patient through malpractice, does he have
- 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)
- 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.
- 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)
(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
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 firstname.lastname@example.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
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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!
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