Rabbi Zvi Ilani & Rabbi Yaakov Weinberger
Translated from the Hebrew by Uriah F. Cheskin & Yitzchak Pechenic
Rabbi Eliezer Yehuda Valdenberg, in Tsits
Eli‘ezer, distinguishes between two types of physician error. If the
physician mistakenly thought that a drug or injection would heal but the drug
or injection proved harmful or even killed the patient, the physician is
neither responsible nor culpable. Physicians are entitled to rely on their
informed perception of the situation; after all, every medical therapy entails
an element of risk and what may cure one patient may kill another.
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 phy- sician was
not engaged in the mitzva 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 Meir Tsvi Vitmeir[2] wrote in
responsa Ramats that a physician who caused the death of a patient by
administering a medicinal cream in the wrong place is liable to exile. This
differs from other cases, such as the father who accidentally killed his son
while disciplining him and the teacher who accidentally killed his pupil under
similar circumstances. The father and the teacher were engaged in mitsvot
incumbent upon them as parents and teachers, but the physician was not engaged
in the mitzva of healing even though that was his intent. Like the court
functionary whose duty was to administer a punishment of forty lashes but
accidentally added an extra lash, which resulted in the person’s death, the
physician is culpable. The Mishna rules that he is guilty of manslaughter and
liable to exile.[3]
What is the law regarding a physician who
mistakenly injected a patient with a lethal substance instead of the required
drug? How can the physician do penance?
Rabbi Yitzhak Weiss[4] 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]
In Shevet ha-Levi, Rabbi Shemuel ha-Levi
Wosner[6] addresses the
question of dentist liability when the dentist’s drill slipped from the
intended tooth to another tooth, causing the patient considerable monetary
loss.
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[if1], 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 uninten- tionally, 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]
Rabbi Samuel Turk explains the difference between
the parallel cases of the father or teacher exempt from punishment for killing
in the course of performing a mitzva and that of a physician liable to exile
for killing unintentionally. The Torah does not require a father who struck his
son in order to educate him to gauge whether or not the son is able to bear the
blow. If the child died, therefore, the father is not responsible and if the
blows were administered for educational purposes, he is exempt from exile. The
physician, though fulfilling a mitzva, is obligated to weigh the appropriate
treatment extremely carefully before proceeding and if he fails to do so he is
certainly not considered a mere victim of circumstances, but rather an
unintentional, neglectful perpetrator. Even though he was engaged in a mitzva,
he is liable to exile if the patient died as a result of the administered treatment.
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 mitzva to heal requires treatment of the patient.[8]
Rabbi Hayyim David ha-Levi[9] rules that a
physician who makes a correct diagnosis but out of nervousness or confusion
commits a fatal error during a medical procedure, is exempt from “human
prosecution.” No court can obligate the physician, often a surgeon who works
under extreme pressure, to pay compensation. The basis for the exemption is the
imperative to ensure “the general good.” As applied here, this means that if we
were to judge as liable the physician under whose care the mishap occurred,
then physicians would generally refrain from performing delicate and difficult
treatments, fearing potential consequences. In such an event, the real losers
would be the sick themselves. Therefore, the physician is exempted on account of
“the general good” – that is, the long-range good of the sick.
The physician is, however, not completely absolved
in the eyes of God. A physician who is truly interested in fulfilling moral
obligations in relation to God will make a personal effort to placate and
compensate the victim.[10]
If a patient dies as the result of an operation,
the surgeon is generally exempt from punishment since it is not known if the
surgeon erred during the operation. If, however, expert physicians determine
that the surgeon did err in performing more than required or unnecessary
surgery, then he is liable for punishment and the court is obligated to punish
him with a prison sentence.[11]
The following case is addressed in Besamim Rosh.[12] A patient died
after taking medicines prescribed on the basis of a medical examination. Under
questioning, the attending physician admitted erring in his diagnosis and
prescribing drugs that caused the patient’s death. Should the physician be
punished with exile?
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 God 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]
Rabbi Shim‘on ben Tsemah (Tashbets)[14] distinguishes
between surgeons and physicians who treat through drugs. He explains that rofeh
uman (“qualified physician” or “medical craftsman”) in Tosefta
refers to “a physician who does manual work: his uninten- tional and
intentional errors, both injury and killing, are committed with iron
instruments.” This describes a surgeon, who alone is subject to the laws
mentioned in Tosefta.
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 Tashbets,
see Rabbi Yitzhak Zilberstein’s opinion below.
Rabbi Menahem Castilnodo[18] writes in Misgeret
ha-Shulhan that if a “convincing assessment,” based on the physicians’
judgment, indicates that a medical error is due to lack of basic medical
knowledge, the physician is considered “one who erred in a fundamental matter”
and is liable for damages.
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]
A qualified physician who administered a fatally
inappropriate treatment, such as giving the “appropriate” drugs to a patient
too weak to bear them, is not considered a murderer.
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 premedit- atedly. 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]
A four-year-old boy was brought to the hospital
complaining of stomach pains. The physician on duty diagnosed appendicitis and
performed an operation, during which it became clear that the diagnosis was
incorrect. Due to both the appendectomy and his real condition – serious
inflammation of the intestine and liver – the boy developed a severe illness
accompanied by high fever, inflammation of the liver, and severe hemolysis and
as a result lost use of his kidneys and required either dialysis or a kidney
transplant.
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
inves- tigation. 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 God.
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 God through a
meritorious person and the opposite through a guilty person.”[22]
A physician who made a reasonable error in the
diagnosis, treatment, or prescription of appropriate drugs – an error which any
physician might make – is not liable for damages. He is also not culpable in
God’s eyes because he did what was incumbent on him to do. In view of the
physician’s proper intention, why should he be obligated to make monetary
compensation (for harm done to the patient) or to go into exile (if the patient
dies)?[23]
Hida[24]
explains in Birkei Yosef why the punishment of the physician who
unintentionally causes death is different from that of the father or teacher
who does the same. He explains that the former is liable to exile while the
latter two are not because they were engaged in a mitzva.
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 mitzva, 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]
Rabbi Yehiel Epstein[27] rules in Arukh
ha-Shulhan that if a physician errs and causes harm while practicing
medicine with the court’s consent, he is not liable to punishment by the courts
but he is liable to divine punishment. This applies when the harm results from
the physician’s negligence either in not probing deeply or in not monitoring
the treatment. But if sufficient probing took place, the physician cannot be
held responsible because there is a mitzva to heal. As one Sage put it, “The
unintentional error of a physician is God’s intention.”
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]
Rabbi Avraham Ashkenazi[29]
was asked about a physician who was called to cure a sick girl. He determined
that she was suffering from frostbite and prescribed medication. The following
day, a neighbor noticed that the girl had the same facial marks that she had
observed on her own two daughters, who had been sick with smallpox. She
suggested that the girl should not take the pills prescribed by the physician.
On hearing the neighbor’s diagnosis, the family unsuccessfully tried to
locate the physician. They did, however, find another phy- sician 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 God’s eyes
until he remits compensation for the harm done. If the patient had died, he
would have been liable exile.[30]
A physician who makes an obvious mistake that would not be made by other
physicians, such as a mistake resulting from laziness in examining the patient,
is liable for harm done to the patient if this can be proven in court.[31]
Source:
ASSIA – Jewish Medical Ethics,
Vol. IV, No. 1, February 2001, pp. 41-45