Crime and Punishment in Jewish Law: Essays and Responsa

Contemporary American Reform Responsa ( New York, 1987), #75

Walter Jacob

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, Pennsylvania)

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 Josef to Tur Yoreh Deah336). 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 ( Yoma85b; 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 Pardons 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-adam12b; 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 8. K. 9.11). The general laws of liability apply here. The surviving family is

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