Crime and Punishment in Jewish Law: Essays and Responsa

By Walter Jacob; Moshe Zemer | Go to book overview
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Malpractice Suits Against Rabbis

Today's Reform Responsa ( Cincinnati, 1990), ♯50

Solomon B. Freehof

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 counseling. 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 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,

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