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The source of this law is the Tosefta (Bava Kamma, 6:6), where it The Shaarei Tzedek takes this further and writes that if a woman was
says: An expert physician who healed with a license from a beis din born infertile, the treatment of her infertility is not in the province of
and damaged a patient is exempt from a human court but will answer medicine and subject to the permissive rulings regarding medicine,
to a Heavenly Court. Furthermore, the Beis Yosef explains the Tosefta since it is essentially an attempt to change her nature rather than
as follows: An expert physician who healed with a license from a beis heal her. Many Acharonim reject this opinion. Certainly, if a woman
din and damaged the patient is exiled to a City of Refuge. Responsa has already given birth to boys and girls and then seeks treatment
Tashbetz, Part 3 #82, says that the Tosefta requires lashes if the phy- for secondary infertility, it is questionable whether treating her is an
sician damaged the patient by accident, but if he killed him, even enactment of the mitzvah “And heal, he shall heal.”
unintentionally, he is exiled to one of the Cities of Refuge. (Note:
in the Tosefta on Makkos published in the Talmud we have before
us, this halachah is not found; it appears in a manuscript, Makkos,
Zuckermandel edition, Ch. 2:5, p. 439.)
A dentist who drilled the wrong tooth
This requires clarification. When a physician whose patient dies is
exiled to a City of Refuge, he is essentially accorded the same treat- 1 Question
ment as anyone else who kills unintentionally. If so, why should the
physician who caused damage to a patient be exempt from payment? While treating a diseased tooth, a dentist mistakenly drilled a healthy
Is he not always responsible for his deeds, like anyone else? Perhaps tooth. Is he obligated to pay?
a physician’s mistake can be considered an ones gamur (a complete
accident), comparable to someone who gives an animal to an expert 1
butcher, who inadvertently makes it into a neveilah by improper AnsweR
slaughtering, in which case the butcher is exempt from paying (Bava In Responsa Shevet Halevi (Part 4 #151), the author cites the Tashbetz
Kamma 99b). The Tosfos explains (Bava Kamma 27b, s.v. uShmuel) (Part 3 #82), who writes that basic halachah obligates the dentist to
that although a person is always responsible, even for something he pay like anyone who causes damage, even if unintentionally. None-
did by accident, this does not apply to an ones gamur, such has having theless our Sages decreed that he is exempt in a human court but
the item stolen from him, for which one is exempt. Therefore if an ex- held accountable in the Heavenly Court. Tosefta says that if an expert
pert butcher damages an animal, the act is considered an ones gamur physician who heals with permission from the beis din inadvertently
and he is exempt from payment. Perhaps an expert physician who did causes damage, he is exempt, but if “he did more than he was sup-
damage to a patient can be placed in the same category? posed to do,” he is obligated to pay. In other words, if he did only
If so, we are still left with the question of why, if a patient dies, what the patient required, in an area in which he is competent [and
is the physician treated like one who unintentionally [but due to licensed] to work, and on that organ that needed his treatment, but
carelessness] killed another? Why is he not treated like one who was he was unsuccessful, then our Sages decreed that he is exempt from
unable to prevent the killing, and is thus exempt from exile? paying for the damage he caused, “for the good of the world.” But if he
Let us explain the difference between a physician who mistakenly “did more than he was supposed to do,” for example, he cut where he
damaged a patient and a physician who mistakenly killed a patient. should not have cut, or drilled in a place that was not necessary, then
In contrast to the Tosfos, the Ramban (Bava Metzia 82b, s.v. umatzasi, even though it was unintentional he is obligated to pay.
8 1 Medical-HalacHic Responsa of Rav ZilbeRstein Compensation for physicians’ errors 2 13
