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1 AnsweR to Question 1
We would first need to determine the responsibilities of a physician
who erred in his medical diagnosis and treatment and caused damage.
We learned in maseches Sanhedrin (33a): A cow once had its uter-
us removed, and Rabbi Tarfon fed its meat to the dogs because he
thought it was tereifah. This case came before the Sages in Yavneh and
they declared the cow kosher, since Todus, the physician, informed
them that no cow or pig leaves Alexandria in Egypt unless its womb
is first removed, so that it is not able to give birth. (The Egyptians
did not want their animals to be bred in other places, so they ster-
ilized them. We see from here that these animals were able to live
even without wombs and are therefore not considered tereifah.) In
response, Rabbi Tarfon exclaimed: Your donkey is gone! - implying
that he is required to sell his donkey in order to return the value of
the cow to its owner. Rabbi Akiva said to him: You are exempt, for
any expert who rules for the public is exempt from paying.
Likewise, the Shulchan Aruch (Choshen Mishpat 25:1) rules that “a
dayan who ruled on a monetary case and erred, if he erred on well
known matters, such as laws cited in a mishnah… the case is reheard…
But if one cannot revisit the case, because, for example, the one who
took the money went off to a foreign land, or he is violent… the dayan
is exempt from paying. Even though he caused damage, he did not
intend to do so.”
The Sema explains (ibid., 6) that while usually a person is respon-
sible for his deeds, and even if he unintentionally causes damage he
is liable, a judge is different. If we would rule that he is liable for an
error, he will never give a halachic ruling again. Since he was autho-
rized to judge, he is not viewed as someone who intended to do harm.
All this applies if the judge declared an erroneous psak, and is thus
only the “indirect cause” of harm. But if the judge himself took the
money from one litigant and transferred it to the other litigant, whom
he considered the rightful owner, then he is liable for his direct action
(as explained there, in the Shach).
From this discussion, it is clear that our Sages made a special ex-
232 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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5. His intent should be a benefit for the sinner and not because he
hates him to begin with.
6. If he can tell bring about the toeles he seeks without slandering
him, he is obligated to do so.
7. By relating the deed, he should not cause the perpetrator more
damage than he deserves.
From the above, we learn that one can reveal negative information
about the physician only if the following conditions are met:
1. One must personally verify that the information is correct, and
not assume things based on what others have told him.
2. He is obligated to consult with physicians and other knowl-
edgeable people to decide whether it is right to publicize it. He
should not make this decision on his own.
3. He must first confront the physician and ask him about his
failure or omission. Perhaps talking to him will bring about the
necessary improvement without having to speak lashon hara, or
perhaps it will be clarified that the doctor was not at fault.
We learned in maseches Yevamos (121a) that Rav Shila
made an incorrect halachic ruling. Rav wanted to excom-
municate him immediately, but Shmuel wanted to first call
him in. They sent for him and he came and told them his
reasoning, and it became clear that he was not deserving
of excommunication. Rav said. “In the multitude of coun-
selors there is salvation” (Mishlei 11:14). (Rav attributed his
success to his consultation with his friend, Shmuel, which
prevented a grave error.). Shmuel responded, “No evil shall
befall the righteous…” (Tehillim 12:21). (Shmuel attributed
the successful outcome of the encounter to Rav’s merit.)
The righteous always attribute their success to their fellow,
and their failures to themselves, as explained in the Or
Chadash (Parshas Shemini).
Thus, one must always look into things and confront
Informing a patient about a mistake 2 237