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ments the surgeon was given and those he returned to the nurses, one by the laws of Heaven, because he can only act according
makes a thorough search for the missing instrument/swab/needle. If to what his eyes see.
there is still a discrepancy, one performs an x-ray of the abdomen in
the operating room. The Tashbetz seems to be differentiating between an unintentional act
1. How is it possible for an instrument to be forgotten in the ab- caused by negligence during treatment and an error in the diagnosis
domen? of the illness. The “expert physician” may have accidentally cut into a
It is possible that the physician used the instrument to stop healthy organ or into a blood vessel due to his own lack of attention.
bleeding in the lower back, an area where visibility is poor since it is If the patient dies as a result, he has to go into exile. He is essentially
covered by the intestines. Without searching specifically in that area, like the woodchopper whose ax handle flew off and killed someone,
the instrument cannot be seen. who has to be exiled. However, if a physician is treating patients using
It is possible that the surgeon was trying to stop bleeding and left laxatives, potions or medications, and he errs in the diagnosis and
the instrument for a few moments. He then continued the surgery the patient dies, he is exempt from exile. After all, he can only treat
and forgot about the instrument. according to what he sees and according to what logic dictates. Thus,
The instrument fell out of the surgeon’s or nurse’s hands and into if in spite of sufficient examination and study of the illness he erred
the abdomen (not likely), and the surgeon did not notice it before and made the wrong diagnosis, and therefore treated it wrongly, he is
closing up the abdomen. exempt even by the laws of Heaven.
The surgeon put the instrument in the abdomen and forgot about
it during surgery. Then he left the closure of the abdomen up to his Sometimes, a young inexperienced physician is on duty. Although
assistants, who had no idea that there was an instrument inside to be he had the proper knowledge and had diagnosed the illness properly,
removed. he made a mistake due to lack of experience and not due to negli-
In any event, if a proper count of instruments would have been gence. It seems that in such a case, as well, he is exempt from exile
made, the instrument would not have remained inside. because it is not considered an unintentional act (shogeg) but an act
2. Who is responsible for this oversight? that he could not prevent (oness). This would apply if he did not have
The nurse, who erred in the instrument count. the opportunity at the time to consult with a senior physician, as we
The head surgeon is responsible, at least for the fact that he did not will explain below.
carefully examine the surgical area. According to this, there is a simple difference between the physi-
The administration of the hospital is responsible for hiring the cian and the ambulance driver who appear in our question. The phy-
physician and nurses. sician’s error was due to faulty reasoning. In such a case, if there was
This is part of Dr. Dvir’s letter. no negligence on his part, but he studied the case carefully and did not
We received another letter from an expert pediatrician: have the opportunity to consult with a senior physician, he is exempt
To the honorable Rav… shlit”a from exile because he is considered an anuss. On the other hand, the
The patients’ lack of appreciation towards the physician, as ex- ambulance driver killed a pedestrian due to his own carelessness, and
pressed in legal suits for damages caused by medical negligence, raises his act is considered unintentional (shogeg). It is no different from the
questions regarding errors made by the physician during the course of classic case of the woodchopper whose ax handle flew off and killed
his continued employment. someone, and he has to be exiled. He is like the surgeon whose knife

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