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Refuge? Or, perhaps since his intent was to perform a mitzvah he is A physician is tested daily dozens of times and meets these tests
exempt from punishment? successfully, with G-d’s help. If there is, Heaven forbid, a mishap, the
If we conclude that the physician is not to be punished because his physician might find himself in a defensive position in the face of a
intent was to perform a mitzvah, then why do we punish an ambu- well-oiled court system, with both the prosecution and defense mak-
lance driver who, while speed-driving an injured person to the hospi- ing a good living off his mishaps.
tal, unintentionally hits a pedestrian? Didn’t the driver also intend to The court from which the unfortunate patient seeks support gen-
do a mitzvah? erally fails, as in the verse (Shemos 23:3): “Nor shall you favor a poor

man in his cause.” This is particularly so because the patient is de-
1 AnsweR manding compensation coming from the insurance company rather
than the pocket of the doctor. The judges from the outset attempt
The Shulchan Aruch writes (Yoreh Deah #336:1): “The Torah gave to reach a settlement, instead of investigating the matter in depth,
Divine license to a physician to heal, and it is a mitzvah and involves in which case one of the sides will not be happy with the result. As
danger to life…and if he killed a patient and he found out that it a result, the physician is never declared innocent, and the only ques-
was he who unintentionally caused the death, he is exiled because of tion is how much compensation will need to be paid. In the process,
it.” The source for this is Toras Haadam of the Ramban (Shaar Ha- the physician’s good name, built up over the course of many years, is
meichush, Sakanah), who writes, based on a Tosefta in Makkos: “An tainted. Even if the physician does not agree to the compromise, his
expert physician who heals with a license from a beis din and killed, attorney, who represents the insurance company, prefers a settlement
is exiled.” for financial and other reasons.
According to this, it appears that the physician should be exiled.
However, during the course of our discussion we will show that there The patient who sues has nothing to lose. He can only profit.
are situations which would not obligate the physician to be exiled, He received full medical treatment according to the health law and
and there are even less severe occurrences, where he does not require he gets disability payments from the country’s National Insurance
atonement at all. We will also clarify the halachah regarding the am- (Bituach Leumi). In addition, he receives a fixed compensation for the
bulance driver who hit a pedestrian in his hurry to get a patient to the damage he suffered. So what paragraph in the Shulchan Aruch gives
hospital. the patient the right to extract additional money from the physician
The Tashbetz writes (Part 3 #82, cited by Birkei Yosef in Yoreh Deah or from the insurance company, considering that the National Health
#336:7): Law and Bituach Leumi cover the costs for pain and shame, damage
and idleness from work? All poskim agree that the physician is not
When it says an “expert” physician who killed is exiled, halachically considered someone who wounded another. In addition,
this applies only to an expert physician who heals people while a judge may refuse to judge and a mohel may refuse to circum-
with surgery, but physicians who heal with potions and cise a baby, the physician cannot refuse to examine and treat a patient.
laxatives and their like are not included in the above rule. The honored Rav himself taught that there are five Torah laws that
If such a physician unintentionally caused the death of the are violated by a physician who does not respond to the needs of a
patient or increased the patient’s pain and suffering, but patient. Since the physician cannot refuse the job, he is considered
his intent was to heal and not to damage, he is exempt even an anuss, in which case he is exempt. One cannot both force the phy-

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