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by accident can border on ungratefulness, and the Torah com- halachah dictates that if one sells a blemished item without informing # 20818
mands us to be grateful. the buyer, he violates the sin of “do not deceive,” she thought that per-
haps she is considered prone to errors, and that she also must reveal
Regarding the topic of compensation for damages from a surgeon her blemish, especially since it can become a matter of life and death.
whose intentions were good, we were asked the following question: We sent her question to the Gaon, Rabbi Nissim Karelitz shlit”a,
who answered that if the nurse is certain that she will not repeat her
error, she is not obligated to reveal it. The case will not recur. How-
Claim for disability caused by heart surgery ever, she has to repent and ask the patient whom she nearly killed for
performed while using another patient’s forgiveness. She should also compensate him with money, and then
catheterization disc Hashem will forgive her.
1 Question We could support this assertion with the following scenario. Imag-
ine if a woman gave her young son an almond and he choked on it and
A patient needed open heart surgery. An expert surgeon, director of died. Would the husband be permitted to divorce her because of the
the department of cardiac surgery, operated on him. A serious mistake claim that she is liable to kill his other children?!
occurred. There were two patients with the same name in the hospital
at the time, and only their ID numbers could differentiate between
them. The physician operated on the first patient according to the
catheterization disc of the second patient. As a result, he disabled the 1 SuMMaRy and Conclusions
patient for the rest of his life.
The patient considered bringing charges against the physician, 1. When a patient is dangerously ill, his opinion bears no weight.
(with permission from a beis din). On the one hand, he would be Even if he refuses to receive treatment, we do not listen to him.
compensated with a large sum of money that would provide him with
a livelihood in comfort. On the other hand, the patient felt he might 2. If the patient is not in a situation of pikuach nefesh, one should
cause great harm to the physician, who wanted to help him and gra- notify him of possible dangers of the treatment - possible
ciously agreed to operate on him for free. The Torah demands that a damage that can occur or danger to life that can result from the
person recognize the good done to him and express gratitude for it. treatment.
Although the claim would be against the government and not 3. If the physician did not inform the patient about the dangers,
against the physician personally, there is no doubt that the physician’s and the patient is damaged or endangered, the physician is obli-
good name would be tainted, and that his insurance premiums would gated to pay for the damage, unless the concern is minor:
be raised in the succeeding years. If there is a concern of danger to life, he is exempt if the
What should the patient do in this case?
concern was one in a thousand or less.
1 AnsweR If there is only concern for damage, the physician is
exempt if the concern was one of a hundred or less.
Although the surgeon’s intentions were good, his actions were wrong.
The Shulchan Aruch (Choshen Mishpat #49:7) explains that if there
100 1 Medical-HalacHic Responsa of Rav ZilbeRstein Failing to inform a patient of possible risks 2 113
