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The Chovos Halevavos (Shaar Habitachon, Ch. 4) says that it is a who cites the Machaneh Efraim, Hilchos Nizkei Mamon #5) writes #
mitzvah for the physician to heal. As it is says, “And heal he shall heal.” that a person is obligated to pay for any damage he caused, even if
According to the Issur Veheter (#60:8), a physician who heals also it came about through an ones gamur. Nonetheless, he writes, we ex-
fulfills the mitzvah of “And they shall live by them,” which is a mitzvah empt the butcher since he was “involved [in the act of slaughtering]
to guard one’s health, and one similarly fulfills “You shall watch over with permission.”
your bodies and souls” (Devarim 4:15), and “Let your brother live with It follows, according to the Ramban, that an expert physician
you” (Vayikra 25:36) and also “And you shall restore it to him [i.e. who healed with the permission of a beis din and erred and caused
his lost health],” just like one must restore a lost object to its rightful damage is exempt from payment because he too “was involved with
owner (Devarim 22:2). permission.” However, since the rule of “involved with permission”
It seems to me that these mitzvos apply to a physician who heals only exempts from payment for damages, but not from exile, if he
and eases pain and suffering. But when a surgeon does plastic surgery inadvertently caused a death, he is still required to go into exile.
for beautification, or a dentist whitens teeth, he does not fulfill any of According to Tosfos, however, the butcher is exempt from payment
the above mitzvos. He is simply like one who fixes utensils. since it was an ones gamur. In this case, we can explain the application
Our Sages assert (Bava Kamma 85b) that it is possible that if one to a physician who erred as follows: If he unintentionally killed, then
injures another, he is responsible to pay the medical costs of healing the basic halachah would dictate that he be treated like any uninten-
the wound without paying for the damages. For example, if he pro- tional killer [as this act cannot be considered an ones gamur, or an
vided his friend with potent medication to heal a bruise, and while unavoidable murder committed through coercion]. If he uninten- 20818_efi-ab - 20818_efi-ab | 1 - B | 18-08-20 | 13:29:01 | SR:-- | Magenta #20818_efi-ab - 20818_efi-ab | 1 - B | 18-08-20 | 13:29:01 | SR:-- | Yellow 20818_efi-ab - 20818_efi-ab | 1 - B | 18-08
healing the bruise, the medication caused a pale tzaraas-like lesion on tionally caused damage, his exemption from payment is a Rabbinic 20818_efi-ab - 20818_efi-ab | 1 - B | 18-08-20 | 13:29:01 | SR:-- | Cyan
the skin, the Torah dictates “Heal he shall heal.” In other words, he is decree for the good of the world (mipnei tikkun olam). If we were to
required to pay him the cost of healing the lesion. From this, we can obligate physicians to pay for all damages caused inadvertently, they
conclude that even a cosmetic medication to repair the blemished skin would likely refrain from practicing medicine altogether. Therefore,
is considered “healing” by the Torah. However, this would only apply Chazal exempted them from payment, even though theoretically they
if the victim is ashamed to be seen with the lesion. Tosfos writes (Shab- are obligated to pay, just as if the patient dies they are exiled. As it
bos 50b, s.v. bishvil): “And if his only suffering is that he is ashamed says in the Tosefta (Gittin, Ch. 3 #13): An expert physician who healed
to walk among people on the street, it is permitted because there is with permission from a beis din and caused damage unintentionally,
no greater suffering that this.” But cosmetic treatment for beautifica- is exempt… “for the good of the world.” Tashbatz concurs (Part 3 #82).
tion or straightening teeth that were not significantly blemished or There is a contradiction here between the Ramban and this Tosefta.
crooked is not considered a mitzvah and thus the Sages’ decree that The Ramban rules that if one is involved in an act with the permis-
a physician is exempt from paying damages does not apply. The law sion of beis din and caused damage unintentionally, he is exempt from
regarding surgery done to fix an external blemish for the purpose of payment, while the Tosefta says that a physician who damaged is theo-
shidduchim requires further study. retically responsible, but exempt only “for the good of the world.” The
The Tzitz Eliezer (Vol. 11 #41) cites the words of the Shaarei Tzedek, Or Same’ach (Ch. 5:6 of Hilchos Rotze’ach) addresses this issue and
who writes: The physician is given Divine license by the Torah to heal concludes with the words “the matter requires further study.”
illnesses or to relieve unnatural pain and suffering. If someone wants Rabbi Yisrael of Kotna (Yeshuos Yisrael, Choshen Mishpat #25, Ein
to change his natural state, this is not in the province of medicine. Mishpat 3) can provide us with an answer to this contradiction: Only

12 1 Medical-HalacHic Responsa of Rav ZilbeRstein Compensation for physicians’ errors 2 9