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

124 1 Medical-HalacHic Responsa of Rav ZilbeRstein Dangerous medication causes death 2 153

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