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if the insurance would not compensate him, the doctor is not #
Treating a patient without his express consent obligated to pay, as explained in Shulchan Aruch (Yoreh Deah
#336). However, if the physician was negligent, and is viewed
1 Question as one who was close to acting intentionally, then he needs to
pay for the damage he caused, in addition to the insurance and
According to the secular law, it is forbidden for a physician to perform disability payments the patient receives. He is no different from
any treatment unless he obtains explicit consent from the patient. a driver who speeds and injures other people, who is obligated
Otherwise, it is considered an assault. Does this also apply to Torah to pay irrespective of the monies the injured parties will collect
law, or since the physician is given Divine license to heal, he has the from the insurance company. See Kovetz Shiurim (Kesubos #217)
right to do what he believes to be the proper treatment? and Har Tzvi (Bava Metzia 35b), who both rule that even when
A 37 year old woman, married for 7 years, became pregnant after the damaged party is insured, the person who caused the dam-
her seventh treatment of in-vitro fertilization. Although she has no age is obligated to pay. The same applies to a negligent physician
abnormality, nor does her husband, she did not become pregnant who is involved in life and death and injured a human being.
during the first five years of their marriage. While treatment to 2. How can one force the physician to examine and treat the pa-
stimulate egg production and the insemination of sperm into her tient, and at the same time hold him responsible for damages?
uterus did not help, with in-vitro fertilization she became pregnant
three times. One pregnancy she miscarried and a second was a tubal This claim is justified. We cannot obligate the physician to pay 20818_efi-ab - 20818_efi-ab | 4 - A | 18-08-20 | 13:29:01 | SR:-- | Magenta
pregnancy that had to be aborted. The third pregnancy yielded twins, for unintentional damages, if he was licensed by the beis din. We #20818_efi-ab - 20818_efi-ab | 4 - A | 18-08-20 | 13:29:01 | SR:-- | Yellow 20818_efi-ab - 20818_efi-ab | 4 - A | 18-08-20 | 13:29:01 | SR:-- | Black 20818_efi-ab - 20818_efi-ab | 4 - A | 18
can only obligate him to pay for damages resulting from an act
two boys, who were born by Caesarean section. During the course of considered “close to intentional” (karov lemeizid).
surgery, a three-centimeter mass was diagnosed surrounding the one
remaining Fallopian tube. 3. The claim that there are lawsuits against physicians that border
The surgeon was faced with two possibilities: To excise only the on lack of appreciation is correct.
mass and to leave the two ends of the tube, or to excise the entire tube.
The first option would require an additional surgery, in the future, 1 SuMMaRy and Conclusions
to rehabilitate the tube, and the slight chance of a naturally-occur-
ring pregnancy. On the other hand, excising the entire tube would 1. If a physician or nurse made a mistake counting the number
diminish the possibility of another ectopic pregnancy in the Fallopian of instruments and thus left an item in the patient’s abdomen
tube. If the woman would want to do so, she could continue with her – if the mistake occurred due to the pressure of the work, the
treatments of in-vitro fertilization. difficulty of the surgery and the like, one cannot fire them from
After consultation with a senior physician, the surgeon decided their jobs. “An error by a physician is the will of the Creator.”
that it is best to excise the tube in its entirety.
Is the physician guilty of injury, since he did not obtain the consent 2. If the mistake occurred because of negligence that is considered
of the woman he is treating? “close to intentional” (karov lemeizid) one should take steps
Before we answer this question, following is Dr. Y. Ben Shlomo’s against them, according to the beis din’s instructions.
response to it: 3. Sometimes a patient’s legal suit against physicians who erred

114 1 Medical-HalacHic Responsa of Rav ZilbeRstein Left instrument in abdomen 2 99