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sician to treat his patients and also consider him a mazik (someone
responsible for damages).
Shouldn’t the public consider the Torah view of this complex top-
ic? I would be most grateful to hear the Torah view on the questions
I have posed.
1 AnsweR
Before we answer your question, let us review a similar case on which
the poskim rule: Can one exempt a ritual slaughterer who does not
review the laws of ritual slaughtering? As the Rama writes (Yoreh
Deah #1:1): A shochet who has a license to perform ritual slaughtering
should at intervals review the laws so that they remain very familiar
to him and he does not forget them. A beis din should ensure that the
examiners and ritual slaughterers are skillful, expert and fit for the
task.
The following question is brought in Responsa Beis Shlomo (Yoreh
Deah #14): During the time of the Maharsham, people claimed that a
prominent shochet in town was not reviewing the laws. The Maharsh-
am tested him and saw that indeed he was not fluent enough in the
relevant laws of ritual slaughtering. After the Maharsham gave him
a strict warning to review the laws, the shochet did so. An argument
ensued in the town. Some people wanted to fire him, while others
argued that if he was now fit to the task according to basic halachah,
he should not be removed from his job.
Those who wanted to keep him on cited proof from the Or Zarua
(Part 1 #114:4) in Yam Shel Shlomo (Chullin, Ch. 1:51), where it says
that if someone is appointed as a cantor it is not possible for a few
congregants to fire him. If the cantor did something shameful, then
even one or two members of the community can fire him, and they
need not pay him for work he did after he sinned, since they were per-
mitted to fire him. The Maharsham cites the words of Rama (Choshen
Mishpat #421:6), who writes: If one suspects that his servant is steal-
ing, he can fire him, even before his contract is up. Although all he has
is a suspicion, he can fire him. Likewise, the people of a city can fire a
96 1 Medical-HalacHic Responsa of Rav ZilbeRstein
IF A PHYSICIAN ERRED
AND THE PATIENT DIED,
OR AN AMBULANCE DRIVER
37 KILLED A PEDESTRIAN, DO
THEY REQUIRE EXILE?
1 Question
The principle that “he who does not act will not make mistakes” cer-
tainly applies to physicians. Medical errors occur frequently and their
results may be very severe. What is the view of halachah in regard to
medical errors?
For example: a four year old boy was brought to the hospital be-
cause of abdominal pains. The on-duty physician diagnosed appen-
dicitis. According to this diagnosis, the treatment is surgery. During
the surgery, it became obvious that the diagnosis was incorrect. (This
happens about 20% of the time with this illness.) After the surgery,
as a result of the delay in making the correct diagnosis (which was a
serious inflammation of the intestines and the liver) and as a result
of the surgery, the child developed a high fever and a syndrome of
hemolysis of the blood. The hemolysis led to kidney failure, to the
point where the kidneys were totally destroyed. The child was moved
to intensive-care in another hospital. If he lives, he will certainly need
dialysis for the rest of his life.
What is the halachah regarding the physician who unintentional-
ly caused the problem, if the patient dies? Does the Torah require
that he be punished in the same way as someone who kills his friend
unintentionally or by accident, who is exiled to one of the Cities of
Do they require exile? 2 117 # 20818