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ments the surgeon was given and those he returned to the nurses, one
makes a thorough search for the missing instrument/swab/needle. If
there is still a discrepancy, one performs an x-ray of the abdomen in
the operating room.
1. How is it possible for an instrument to be forgotten in the ab-
domen?
It is possible that the physician used the instrument to stop
bleeding in the lower back, an area where visibility is poor since it is
covered by the intestines. Without searching specifically in that area,
the instrument cannot be seen.
It is possible that the surgeon was trying to stop bleeding and left
the instrument for a few moments. He then continued the surgery
and forgot about the instrument.
The instrument fell out of the surgeon’s or nurse’s hands and into
the abdomen (not likely), and the surgeon did not notice it before
closing up the abdomen.
The surgeon put the instrument in the abdomen and forgot about
it during surgery. Then he left the closure of the abdomen up to his
assistants, who had no idea that there was an instrument inside to be
removed.
In any event, if a proper count of instruments would have been
made, the instrument would not have remained inside.
2. Who is responsible for this oversight?
The nurse, who erred in the instrument count.
The head surgeon is responsible, at least for the fact that he did not
carefully examine the surgical area.
The administration of the hospital is responsible for hiring the
physician and nurses.
This is part of Dr. Dvir’s letter.
We received another letter from an expert pediatrician:
To the honorable Rav… shlit”a
The patients’ lack of appreciation towards the physician, as ex-
pressed in legal suits for damages caused by medical negligence, raises
questions regarding errors made by the physician during the course of
his continued employment.
94 1 Medical-HalacHic Responsa of Rav ZilbeRstein
4
by the laws of Heaven, because he can only act according
to what his eyes see.
The Tashbetz seems to be differentiating between an unintentional act
caused by negligence during treatment and an error in the diagnosis
of the illness. The “expert physician” may have accidentally cut into a
healthy organ or into a blood vessel due to his own lack of attention.
If the patient dies as a result, he has to go into exile. He is essentially
like the woodchopper whose ax handle flew off and killed someone,
who has to be exiled. However, if a physician is treating patients using
laxatives, potions or medications, and he errs in the diagnosis and
the patient dies, he is exempt from exile. After all, he can only treat
according to what he sees and according to what logic dictates. Thus,
if in spite of sufficient examination and study of the illness he erred
and made the wrong diagnosis, and therefore treated it wrongly, he is
exempt even by the laws of Heaven.
Sometimes, a young inexperienced physician is on duty. Although
he had the proper knowledge and had diagnosed the illness properly,
he made a mistake due to lack of experience and not due to negli-
gence. It seems that in such a case, as well, he is exempt from exile
because it is not considered an unintentional act (shogeg) but an act
that he could not prevent (oness). This would apply if he did not have
the opportunity at the time to consult with a senior physician, as we
will explain below.
According to this, there is a simple difference between the physi-
cian and the ambulance driver who appear in our question. The phy-
sician’s error was due to faulty reasoning. In such a case, if there was
no negligence on his part, but he studied the case carefully and did not
have the opportunity to consult with a senior physician, he is exempt
from exile because he is considered an anuss. On the other hand, the
ambulance driver killed a pedestrian due to his own carelessness, and
his act is considered unintentional (shogeg). It is no different from the
classic case of the woodchopper whose ax handle flew off and killed
someone, and he has to be exiled. He is like the surgeon whose knife
Do they require exile? 2 119 # 20818