But if, through inattention or haste, the physician prescribed the wrong drug - one not sanctioned by medical science - the physician is certainly culpable. Even by medical standards, the physician was not engaged in the mitsva of healing. On the contrary: due to negligence, a dangerous drug was substituted for a salutary one. The physician's oversight is considered a willful action. Similarly, the physician is culpable if, due to inattention, he gave an unwarranted injection which harmed or even killed the patient.1
Rabbi Yitzhak Weiss4 answers this question in Minhat Yitshaq, basing his ruling that a physician who injected a poisonous substance is liable to exile on the Shulhan Arukh, which states that the physician who kills unintentionally is liable to exile.
Rabbi Weiss cites Rabbi Valdenberg on the various approaches to medical error, according to which physicians who make a judgmental error in giving what they think is an effective injection or drug may not legally be considered liable. But if the wrong drug was administered because of inattention, the physician is liable on the basis of the principle that "a human is always forewarned." The unintentional act is considered intentional because the physician acted negligently.5
Rabbi Wosner cites Tosefta: a qualified physician who practices medicine with the court's consent is not liable if damage was caused in the course of his treatment, but if he did more than was appropriate then he is liable. Rabbi Wosner explains that even if the damage occurred in the course of the physician's treatment, he is exempt from punishment because his work contributes to "the general good." This ruling ensures that physicians will not refrain from practicing medicine. Were it not for this consideration, the law would require the physician to pay damages.
The exemption from liability of a physician who caused damage is therefore limited to when he or she did what was called for, in the appropriate part of the body, without success. However, the law is different if the physician did more than was appropriate, such as cutting or drilling. Even though the physician did so unintentionally, he or she was nonetheless negligent and is judged as though the damage were intentional. Therefore, the physician is liable for damages.
Rabbi Wosner concludes that the law requires the physician to compensate the patient for damages. Similarly, a physician is liable for damages in every medical procedure performed by mistake on healthy, instead of diseased, parts of the body when injury results. Of course, this applies only when the physician clearly could have ascertained which part of the body required treatment but was nevertheless negligent.7
Physicians are obligated to check and examine the procedures they employ with extreme circumspection. Thus, a physician who performed an unnecessary operation due to lack of circumspection, resulting in the patient's death, is certainly liable to exile. But a physician who did everything in accordance with accepted medical procedure and the patient nonetheless died is exempt from the punishment of exile. He is not responsible because the mitsva to heal requires treatment of the patient.8
The physician is, however, not completely absolved in the eyes of G-d. A physician who is truly interested in fulfilling moral obligations in relation to G-d will make a personal effort to placate and compensate the victim.10
The author cites Tosefta, which states that a qualified physician who killed a patient through treatment is to be exiled, but he distinguishes between types of error. Tosefta refers, he notes, to cases such as that of the surgeon who mistakenly cuts an organ, causing the patient's death. The surgeon is liable to exile since the same act, committed deliberately, would require the death penalty. But when the error is drug prescription and no direct physical procedure is performed on the patient's body, the physician is not liable to exile because even deliberate prescribing of lethal drugs, which is not considered a direct cause of death, does not require the death penalty. In our case, the physician is exempt even from punishment at the hand of G-d since he intended to cure the patient using his best medical knowledge. What more could be expected of him? Only afterwards did he realize that he had been mistaken in his diagnosis.
In summary, a distinction should be drawn between an error in surgery or other medical procedures performed directly on the patient's body and an error in drug prescription. In the latter instance, the patient's death is caused not by a direct manual action, but rather by an indirect action.13
An internist, who treats through drugs - "by potions, laxatives, compounds, and baths" - is not called a rofeh uman; rather, he is called an ordinary physician. He cannot be held responsible for the harm he may cause. "If he erred, whether wittingly or not, and thereby killed the patient or increased his pain while intending to heal, he is exempt from both divine judgment and the punishment of exile." This is because he can only rely on his informed perception. The distinction, then, is between the error of a surgeon who causes injury and that of an internist who causes harm by drug therapy.15
Rabbi Valdenberg expresses surprise at the ruling in Tashbets cited above: Why cannot the rationale that he can only rely on his informed perception, invoked to exempt the physician who uses drug therapy, also be invoked in the case of the surgeon? Regarding the statement in Tashbets that a physician who uses drug therapy is not liable because he does not cause injury with his hands, shall we say that if one person gives another person a drug that damages an organ, he is not liable? Similarly, if one person gives another a drug which kills him, is the former not considered a murderer?16
Rabbi Wosner cites the distinction mentioned in Tashbets above, commenting that in the late twentieth century the distinction is usually no longer applicable because of the capacity for precise internal examinations. Therefore, a physician who causes harm through drug therapy when modern testing could have ascertained if the therapy would harm the patient is not exempt on the grounds cited in Tashbets, "He has only what his eyes see." He is fully responsible in the same way a surgeon is.17
For further elaboration on the distinction in Tash-bets, see Rabbi Yitzhak Zilberstein's opinion below.
The only kinds of errors for which the Sages exempted the perpetrators are those to which a learned physician might fall prey. But if it is clear that the physician erred in a clear and well-known matter because of a lack of basic medical knowledge, he is liable like anyone who unintentionally causes injury.19
According to the Torah, a murderer is one who intends to kill; as it is written, "When a person contrives against his neighbor to kill him with premeditation" (Exodus 21:14). The Sages interpreted this as "excluding the physician who kills."20 Even though the physician deliberately prescribed drugs that have the potential of harming the patient, he did not try to kill the patient premeditatedly. Indeed, the intention of the physician was to heal, not to harm. It is appropriate to exempt the physician from punishment on the basis of the principle of the general good cited earlier. If physicians were not exempted when intending to heal, many would refrain from practicing medicine.21
Should the physician be punished for his tragic mistake? In general, what is the law regarding a physician who committed an unwitting error in judgment in diagnosing and treating a patient, causing the patient's death? In his answer, Rabbi Zilberstein first elucidates the distinction in Tashbets between a surgeon who killed unintentionally and an internist who erred in drug therapy.
It is essential to distinguish between an error resulting from carelessness during treatment and an error in the diagnosis.
It is the surgeon who killed by cutting an organ or artery out of carelessness who is liable to the punishment of exile. This is similar to the case mentioned in the Torah of "a man who goes into the forest with his neighbor to cut wood and...the head of the ax slips off the handle...killing the neighbor" (Deuteronomy 19:5). Such a person is liable to exile. But if the internist who decides on the type of treatment on the basis of his judgment errs in the diagnosis, the punishment of exile does not apply because one is entitled to rely on informed perception of the situation. This ruling assumes that the error did not result from negligence or an inadequate investigation. On the contrary; despite having investigated and run precise tests, the illness was misdiagnosed and incorrectly treated. In this case, the physician is also exempt from punishment at the hands of G-d.
Based on this explanation of the distinction in Tashbets, Rabbi Zilberstein concludes that a physician who made a judgmental error and misdiagnosed the illness is exempt; he is not considered legally responsible. This, of course, assumes that the error did not stem from negligence and also that there was no opportunity to consult with an experienced physician. Even so, it stands to reason that some penance for this fatal error is required in light of the principle that "Salutary events are brought about by G-d through a meritorious person and the opposite through a guilty person."22
He points out that the father and the teacher struck their young charges to punish and train them. They made no error. But the physician erred in this treatment or diagnosis because there was insufficient probing into the nature of the illness. The physician learned of the error in diagnosis or prescription of drugs only after the fact. Thus, although intending to perform a mitsva, the physician is liable for the patient's death because of not being extremely careful and neglecting to probe. In contrast, the father and rabbi who wanted to train the child by means of corporal punishment, as is the general custom, were not required to have precisely gauged the child's hardiness. Consequently, they are exempt from punishment.25
Hida also addresses the case of the physician who knew that he was unfamiliar with the disease confronting him and still did not probe into it deeply. As a result, he prescribed the drugs that caused the patient's death. This physician is a criminal because he should have probed deeply into the nature of the illness and the appropriate drugs to prescribe.26
The law is otherwise when the patient dies and a physician error comes to light. If it can be assumed that the physician caused the death through negligence or insufficient probing, he is liable to exile. But where negligence such as failure to perform a thorough examination cannot be attributed to the physician, the punishment of exile cannot be applied. This is like the exemption in the cases of the father and the teacher mentioned above.28
On hearing the neighbor's diagnosis, the family unsuccessfully tried to locate the physician. They did, however, find another physician who examined the girl and concluded that the neighbor might be correct in her diagnosis of smallpox and that it would therefore be risky for the patient to continue taking the pills prescribed by the first physician. He added that even if she was suffering from frostbite, she ought not take the drug because she had a high fever.
After a while, the first physician returned to see the patient. The family informed him that they had not administered the prescribed medication because a neighbor had suggested that she had smallpox and a second physician had recommended that the medication not be continued because of the risk involved. The first physician became incensed, rebuked the family, and went into the patient's room and personally administered the medication. By evening, the girl was covered with a rash from head to toe, indicating that she indeed had smallpox, and it was obvious that first physician's treatment had done her harm. The family sued him for malpractice.
After considering the various sides of the case, Rabbi Ashkenazi ruled that the physician was guilty of malpractice. He had failed to correctly diagnose the patient and ignored the suggestion of the neighbor, who had observed smallpox in her daughters. He administered a medication that might have killed the patient - and did indeed aggravate her illness, bringing her close to death. He should have probed more deeply and weighed the suggestions of the neighbor - as the Sages say, "Do not scorn anyone." In light of the above, the physician is not acquitted in G-d's eyes until he remits compensation for the harm done. If the patient had died, he would have been liable exile.30
1. Responsa Tsits Eli'ezer, pt. 5; Ramat Rahel, ch. 23.
2. Nineteenth century, Poland.
3. Makkot 22; responsa Ramats, addenda to Orah Hayyim and Yoreh De'ah 11.
4. Head of the rabbinical court of the Eida Hareidit, Jerusalem.
5. Responsa Minhat Yitshaq, pt. 3, 104, 105.
6. Rabbi of Zikhron Meir, Bnei Beraq, Israel.
7. Responsa Shevet ha-Levi, Yoreh De'ah 4:151.
8. R. Turk, Ha-Darom 10: 114-19.
9. Chief rabbi and head of the rabbinical court, Tel Aviv-Jaffa.
10. Aseh Lekha Rav, pt. 3, 30.
11. R. Ya'akov Meshulam Ginsburg, Mishpatim le-Yisrael, p. 324.
12. Attributed to R. Asher ben Yehiel and other great Spanish Torah scholars of the thirteenth century.
13. Responsa Besamim Rosh 386.
14. Fifteenth century, Algeria.
15. Responsa Tashbets, pt. 3, 82.
16. Responsa Tsits Eli'ezer, pt. 4, 13.
17. Responsa Shevet ha-Levi, Yoreh De'ah 4:151.
18. Nineteenth century, Italy.
19. Misgeret ha-Shulhan, Yoreh De'ah 336:1.
20. Mekhilta, Mishpatim 58.
21. R. Ya'akov Meshulam Ginsburg, Mishpatim le-Yisrael, p. 323.
22. R. Zilberstein, Sefer Halakha u-Refu'a, pt. 2, pp. 287-94.
23. R. ha-Levi, Aseh Lekha Rav, pt. 3, 30.
24. R. Hayyim Yosef David Azulai (eighteenth century, Israel/Italy).
25. Birkhei Yosef, Yoreh De'ah 336:6.
26. Responsa Tov Ayyin 9:8.
27. Nineteenth and twentieth centuries, Lithuania.
28. Arukh ha-Shulhan, Yoreh De'ah 336:2.
29. Eighteenth century, Turkey.
30. See a lengthy discussion of this ruling in Beit Aharon, pt. 1, Yoreh De'ah 2:3.
31. Aseh Lekha Rav, pt. 3, 30.