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vein. The pediatrician decided to wash the catheter that was in the
umbilical vein with saline solution, but instead of saline solution he
mistakenly injected potassium chloride. As a result, the baby’s heart
destabilized and he died. An investigation revealed that the physician
erred because of his haste in removing the drug for injection from the
medicine cabinet. He did not pay attention to the letter K as a sign for
potassium, which was written on the box. The physician was severely
punished by the court.)
The physician wants to know if he should confess to his supervi-
sors.
1 AnsweR
At first glance, it would seem that the physician should confess his
error in order to find atonement. His actions are considered “close to
intentional,” because he knew that a patient’s life was in his hands and
by switching the faucets it is as if he killed with his own hands.
I sent this question to my revered father-in-law, Rav Yosef Shalom
Elyashiv zt”l, who said that the physician should remain silent, for
several reasons:
1. There is reason to suspect that the father of the child (or an-
other relative) may kill him. The father wanted to hurt himself
out of grief and sorrow, and he may take out his anger on the
physician. The Torah is concerned about such a possibility, as it
says (Bamidbar 35:25): “And the congregation shall save the [un-
intentional] murderer from the avenger of blood.” The Rambam
(Hilchos Rotzeach 5:8) writes that the unintentional murderer is
given two Torah scholars [who watch over him] lest the avenger
of blood kill him on his way to a city of refuge. Thus there is
legitimate room for concern that the father will kill him.
2. According to Torah law, one cannot punish this physician with
prison because Rashi implies (in Pesachim 91a, s.v. beis haasurim)
that one may be imprisoned for three things:
a. If a man is obligated to divorce his wife but refuses to do
134 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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had entered his domain and caught his mistake. Here, a serious moral 5
ethical problem arose for me. Is it part of my job as director of an
independent medical laboratory to approach the treating physician
with the results of the blood tests, even though Dr. Reuven asked me
not to tell him? There is a possibility of real pikuach nefesh for many
future patients of Dr. Shimon.
Is Dr. Reuven, who is under the authority of the treating physician,
Dr. Shimon, and dependent on him for his livelihood, required to
speak out about Dr. Shimon’s mistake, due to the possible danger to
life of future patients?
1 AnsweR
In order to answer these questions, we have to clarify three topics:
1. To what degree is Dr. Shimon responsible for what occurred
here? Was he completely criminal in his actions, close to crimi-
nial, or can we consider his act unintentional?
2. Do we obligate a physician who was criminially negligent to pay
for the damages he caused?
3. Is it proper in this case to revoke the physician’s license, or can
we make do with a warning that if this type of mistake occurs
again, he will be fined?
Regarding the level of the criminality of the physician, and whether
or not he is obligated to pay for the damages:
We learned in the Tosefta (Gittin 3:13): “An expert physician who
healed with a license from a beis din and caused damage, if it was
unintentional, he is exempt, ’for the good of the world.’ (Although
a person is forever held accountable, nevertheless our Sages exempt
him so that physicians will be available to heal the sick (Minchas
Bikkurim).) If it was done on purpose, he is obligated to pay. If one
dismembers a fetus in its mother’s womb with the permission of a
beis din (because the fetus is endangering the mother’s life) and he
unintentionally did damage, he is exempt “because of the good of
Dangerous medication causes death 2 143