Contemporary American Reform Responsa
75. Damages for a Physician’s
QUESTION: An elderly woman suffering from a variety of ailments
was mistakenly given an excessive dosage of a drug. This led to her serious rapid deterioration
and hastened her death. The physician in question immediately admitted his error and did
everything possible to rectify it. Is the family entitled to damages on moral and ethical grounds?
Should this course be pursued to make the doctor more careful in the future? (M. M., Pittsburgh,
PA)ANSWER: The Talmud dealt with the general problem of a physician’s
liability while healing the sick. The Talmud considered the task of healing a
mitzvah and not interference with God’s intentions [as He may have sent the disease] (B.
K. 85a; Bet Yosef to Tur Yoreh Deah 336). It was a person’s duty to seek the best
physician in case of illness (Shab. 32a). Furthermore, it was permitted to violate all
shabbat and ritual laws to save a human life (Yoma 85b; Shulhan Arukh Orah
Hayim 329.3). If the physician failed and the patient died, he is free from liability as long as the
remedies were tried in good faith (Tosefta Git. 4.6). This Tosefta discussed other
situations of inadvertent injury incurred while performing a mitzvah. As long as the injury
is inadvertent, no liability is incurred. The traditional statements are very specific about the
physician’s responsibility and free him from general liability for unintentional harm. Without such
assurance it would be impossible for a physician to practice (David Pardo in J. Preuss,
Biblical and Talmudic Medicine p. 28). It is, of course, assumed that the physician has
been trained and properly licensed (Nachmanides; Torat Ha-adam 12b; Simon ben
Zemah of Duran, Responsa, Vol. 3; Tur Yoreh Deah 336; Shulhan Arukh
Yoreh Deah 336; Eliezer Waldenberg, Tzitz Eliezer, Vol. 5, #23). When,
however, the physician has clearly made a mistake, then he is liable for the same damages as
anyone engaged in other professional or commercial transactions (Tosefta B. K. 9.11).
The general laws of liability apply here. The surviving family is entitled to damages on moral and
ethical grounds and should pursue this course of action. The physician may well be willing to
assume this obligation in keeping with tradition.November 1986
If needed, please consult Abbreviations used in CCAR Responsa.