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Treating a patient without his express consent
1 Question
According to the secular law, it is forbidden for a physician to perform
any treatment unless he obtains explicit consent from the patient.
Otherwise, it is considered an assault. Does this also apply to Torah
law, or since the physician is given Divine license to heal, he has the
right to do what he believes to be the proper treatment?
A 37 year old woman, married for 7 years, became pregnant after
her seventh treatment of in-vitro fertilization. Although she has no
abnormality, nor does her husband, she did not become pregnant
during the first five years of their marriage. While treatment to
stimulate egg production and the insemination of sperm into her
uterus did not help, with in-vitro fertilization she became pregnant
three times. One pregnancy she miscarried and a second was a tubal
pregnancy that had to be aborted. The third pregnancy yielded twins,
two boys, who were born by Caesarean section. During the course of
surgery, a three-centimeter mass was diagnosed surrounding the one
remaining Fallopian tube.
The surgeon was faced with two possibilities: To excise only the
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,
to rehabilitate the tube, and the slight chance of a naturally-occur-
ring pregnancy. On the other hand, excising the entire tube would
diminish the possibility of another ectopic pregnancy in the Fallopian
tube. If the woman would want to do so, she could continue with her
treatments of in-vitro fertilization.
After consultation with a senior physician, the surgeon decided
that it is best to excise the tube in its entirety.
Is the physician guilty of injury, since he did not obtain the consent
of the woman he is treating?
Before we answer this question, following is Dr. Y. Ben Shlomo’s
response to it:
114 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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if the insurance would not compensate him, the doctor is not #
obligated to pay, as explained in Shulchan Aruch (Yoreh Deah
#336). However, if the physician was negligent, and is viewed
as one who was close to acting intentionally, then he needs to
pay for the damage he caused, in addition to the insurance and
disability payments the patient receives. He is no different from
a driver who speeds and injures other people, who is obligated
to pay irrespective of the monies the injured parties will collect
from the insurance company. See Kovetz Shiurim (Kesubos #217)
and Har Tzvi (Bava Metzia 35b), who both rule that even when
the damaged party is insured, the person who caused the dam-
age is obligated to pay. The same applies to a negligent physician
who is involved in life and death and injured a human being.
2. How can one force the physician to examine and treat the pa-
tient, and at the same time hold him responsible for damages?
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
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 2081
can only obligate him to pay for damages resulting from an act
considered “close to intentional” (karov lemeizid).
3. The claim that there are lawsuits against physicians that border
on lack of appreciation is correct.
1 SuMMaRy and Conclusions
1. If a physician or nurse made a mistake counting the number
of instruments and thus left an item in the patient’s abdomen
– if the mistake occurred due to the pressure of the work, the
difficulty of the surgery and the like, one cannot fire them from
their jobs. “An error by a physician is the will of the Creator.”
2. If the mistake occurred because of negligence that is considered
“close to intentional” (karov lemeizid) one should take steps
against them, according to the beis din’s instructions.
3. Sometimes a patient’s legal suit against physicians who erred
Left instrument in abdomen 2 99