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the ambulance driver more leniently than the physician who erred, as
we will now explain.
In Yad Avraham, (in his notes on the ruling of the Shulchan Aruch,
Yoreh Deah #336) there is a question raised regarding the law that a
physician who erred, causing the death of the patient, is obligated to
go into exile. He cites the question of the Maaseh Roke’ach, who asks:
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Why is the physician required to go into exile, while if an agent of a
beis din accidentally killed the person he is flogging, he is exempt from
exile? Moreover, why is the physician different from a father who hits
his son, or a teacher who hits his student, and they die? The father
or teacher are exempt from exile, because it is says (Devarim 19:5):
“As when a man goes with a fellowman to chop wood in the forest
and his hand slipped when he hit the tree and the axe blade flew off
its handle and hit his fellowman so that he died, he shall flee into one
of the cities of refuge and live there.” And Chazal explain these words
as follows: Abba Shaul said: Just as chopping wood is optional and
he has to go into exile if he accidentally killed his fellowman, so, too
for all optional acts that inadvertently result in death. Thus a father
who hits his son and a teacher who hits his student and the agent of a
beis din, all of whom unintentionally killed while doing a mitzvah, are
exempt from exile (maseches Makkos 8a). This is the halachic ruling
in the Rambam, Hilchos Rotzeach 5:6. According to this, a physician
who unintentionally killed a patient should be exempt from exile as
well, because the death occurred while he was engaged in the mitzvah
of healing.
But the Yad Avraham explains that one must differentiate between
the cases. The agent of a beis din who flogs a litigant who refused to
abide by the court’s decision is doing a mitzvah by carrying out the
judgment of the beis din. Thus, even though he inadvertently kills,
he does not have to go into exile, because the death did not nullify
the mitzvah of doing justice in the world. His goal was fulfillled even
though the litigant died. On the other hand, a physician who killed
a patient did not do a mitzvah; even though he put much effort into
healing the patient, if he was not successful, he did not fulfill the mitz-
124 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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therapy to alleviate her pain (since a cure is no longer possible). The
patient’s physician herself should have followed up and made sure
that the woman would go through with the biopsy she originally
requested.
My question is about suing for medical negligence. May Hashem
have mercy on the patient and perhaps she will be healed in an un-
natural way. Nonetheless, there was certainly medical negligence in
this case, and she deserves compensation from the medical insurance
company. I hesitate to reveal this openly to the family, because I work
in the system, but if I discreetly instruct them to sue for compen-
sation, I will also perhaps profit. A definite advantage from the suit
in court is increased awareness of negligence, and perhaps this will
prevent such an occurrence from recurring in the future and thereby
save lives. On the other hand, it will place the treating physician in an
uncomfortable position as she, too, will be sued for her passivity in
letting several months go by without appropriate therapy.
What am I to do?
1 AnsweR
It is proper to hint to the family that they should sue the medical
insurance company. Although Chazal decreed that a physician who
damages unintentionally is exempt from payment, so that he should
not be discouraged from saving a life in the future. [As explained in
the Tosefta (Bava Kamma 6:6) and as ruled in Shulchan Aruch (Yoreh
Deah #336)] this applies to suing them personally, but not if the in-
surance company pays. In this case, there is room for concern that
the degree of negligence will increase and one should sue them. The
reason we advise hinting to the family quietly that they should sue the
doctor is to minimize arguments.
1 SuMMaRy and Conclusion
One should hint to the family to sue for the negligence.
Dangerous medication causes death 2 153
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