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That is why Shevet Halevi rules in the case of the dentist who 1
mistakenly drilled a healthy tooth that the dentist is obligated to pay
for damages he caused. Although we might correctly assume that
his hand slipped and that he had no control over the mistake, the
halachah does not change.
It seems to me that the Shevet Halevi obligates the dentist to pay 27
based on his own preceding assertion that a physician who errs is COMPENSATION FOR
PHYSICIANS’ ERRORS
exempt only “for the good of the world.” But according to the view
of the Ramban that if one is “involved with permission” and inadver-
tently causes damage, he is exempt by law rather than by Rabbinic
decree, then perhaps he is halachically exempt in this case as well, as
it makes no difference whether the damage affected the organ that
was being treated or another. Just as an expert butcher is exempt for 1 Question
defective slaughtering that occurs due to pressure of the knife outside During surgery, a surgeon’s hand slipped and he unintentionally cut
the tracheal rings in the neck of the animal (see Shulchan Aruch, Yoreh another organ or limb and caused damage to the patient, or else he
Deah #20), so too a physician who caused damage outside the organ mistakenly performed the entire surgery incorrectly. Is he obligated
he was working on is exempt as well. Thus the opinion of the Shevet to pay for the damages? It says in maseches Bava Kamma 26a and in
Halevi is based on the view of the Tosfos that he is exempt “for the Sanhedrin 72a, “A man is forever responsible [for his deeds] whether
good of the world,” and is not in accordance with the Ramban’s view. [they were done] unintentionally or on purpose, by force or with de-
Were it not for the opinion of the Shevet Halevi we could have sire..” Does this principle apply here?
explained the words of the Tashbetz and the the Tosefta, “and if he did
more than he was supposed to do” as referring to the words of the 1
Misgeres Hashulchan (Yoreh Deah #336, end of 1) who writes that a AnsweR
physician is exempt from paying only for medical errors that are likely The principle that a person is always responsible for the outcome of
to occur. If other physicians agree that he erred in something elemen- his deeds does not apply to a physician who is licensed by a beis din to
tary or obvious, he is obligated to pay. It says the same in the book Tov heal patients [i.e. licensed to practice medicine] and causes damage.
Ayin by the Chida (#9:8): If the physician himself admits that he did The Shulchan Aruch says (Yoreh Deah #336:1) that a person should not
not study the illness adequately and therefore gave medications that practice medicine unless he is an expert and there is no greater expert
damaged the patient, he is obligated to pay. available; otherwise, he is shedding blood. Of course, if he treats a
The Tzitz Eliezer (Part 5, Ramat Rachel) writes that there is a clear patient without a license, he is obligated to pay damages, even if he
source in Tana Devei Eliyahu Rabbah, Ch. 23, for firing a person in- is an expert. However, if he is an expert licensed by a beis din and
volved in holy work for treating his job lightly. So, too, if a physician inadvertently caused damage, he is exempt from human judgment,
is not practicing medicine with the seriousness due to life and death though he will certainly bear responsibility for his deed before the
matters, he should be fired as well. The Tana Devei Eliyahu writes: If Heavenly Court. If he killed the patient and later discovered that he
two people fight and one hits his friend with a stone or with his fist… had made an error, he is exiled to one of the Cities of Refuge.

14 1 Medical-HalacHic Responsa of Rav ZilbeRstein Compensation for physicians’ errors 2 7