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the world.” If he damaged the mother unintentionally during the
dismemberment of the fetus, he is exempt “because of the good of
the world” (so that physicians will be available, and not refrain from
treating patients because of their possible liability for negative conse-
quences). Even in such a case, where damage is common, our Sages
exempt him (Minchas Bikkurim #9:8). If however, he erred because he AN ANESTHESIOLOGIST
did not study enough and it is something he should have known, he is 38 OPENED THE ANESTHESIA
viewed as having acted intentionally. VALVE INSTEAD OF THE
So, too, it says in the Tosefta (Bava Kamma 6:6): “An expert phy- OXYGEN VALVE
sician, licensed by a beis din, who damaged a patient, if he did so
unintentionally, he is exempt from being tried in a human court but
his case is given over to Heaven.” This is the halachic ruling in the
Shulchan Aruch (Yoreh Deah #336:1) as well, where is states as follows: 1 Question
“And if he healed with the permission of a beis din and erred and
damaged a patient, he is exempt from being tried in a human court An anesthesiologist abroad mistakenly opened the anesthetic gas
but his case is given over to Heaven.” In Sefer Tov Ayin by the Chida valve instead of the oxygen valve in the course of a simple procedure
(#9:8), the author writes that if the physician did not investigate the done on a child. The physician noticed his error only after ten min-
cause of the illness and gave medication that damaged the patient, utes, and the child died. His father wanted to commit suicide with
everyone agrees that he has to pay for the damages. a gun he possessed, and only with great difficulty was he dissuaded
In our case, where the physician did not follow up on the medi- from doing so.
cations he gave the patient, if he knew that the patient suffered from As is usual in hospitals abroad, a commission of inquiry has been
malfunction of the kidneys and the liver and nevertheless did not appointed to investigate the cause of death. The investigators have
follow up, it is possible that his act is considered “close to intentional.” concluded that the child’s death was an allergic reaction to the an-
But, if he did not know that the patient had a malfunction of his esthetic agent. Soon the Department of Health will begin its own
kidneys and liver, his act is considered unintentional. If he only gave investigation. The anesthesiologist wants to know if he is required to
small quantities of the medicine (Digoxin), his act may be considered confess the truth. His conscience gives him no peace, and the knowl-
unintentional, close to an anuss, because it did not occur to him that edge that a healthy child is dead because of his actions haunts him.
a small dose would cause poisoning. Each case should be examined He assumes that if he confesses, he will be jailed or have his license
individually. If he did not know that one must follow up after pre- revoked, and that will be his kapparah. The anesthesiologist blames
scribing medication, his act is viewed as intentional. his supervisor, who forced him to work that day from seven in the
However, even if we view the physician as having acted intentional- morning until eleven at night, when the accident occurred.
ly, he is still exempt from paying for damages since he did not actually (I would like to point out that in an international medical jour-
kill the patient with his own hands but he only prescribed medication, nal it was related that a woman gave birth to twins during the thir-
which the patient took by himself. Therefore, we consider the physi- ty-second week of her pregnancy. One baby was jaundiced and had
cian to have only indirectly caused the damage, and halachah states difficulty in breathing and received antibiotics through the umbilical
144 1 Medical-HalacHic Responsa of Rav ZilbeRstein Anesthesia instead of oxygen 2 133
