Page 239 - 20818_park-B_efi

20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Black
#
20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Magenta
20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Cyan
#20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Yellow
Although the insurance company is likely to charge the physician emption for dayanim from payment for damages that occurred as a #
a much higher premium after this claim, it is still permissible for the result of an erroneous judgment on their part (unless they caused the
family to sue in court. Since they are not damaging him directly but damage “with their hands” - i.e., directly)
very indirectly (grama), and the physician too harmed by negligence A similar decree was enacted by the Sages for physicians who err
very indirectly, they are not obligated to lose the money that is coming and are exempt from payment. As cited in Tosefta (Gittin 3:13, with
to them. The extra premium money that the physician pays will be the explanation of the Minchas Bikkurim): An experienced physician
atonement for his omission and he will be forgiven. who is licensed to heal and erred unintentionally is exempt… because
of the good of the world, so that there should be physicians in the
1 AnsweR to Question 2 world. If he did so intentionally, he is obligated to pay. Thus, if one
dismembers a fetus in the mother’s womb with the permission of a
Now we will deal with the question of whether or not one should beis din in order to save her life, and he harms the mother while doing
withhold the information about the doctor’s failure or omission in so, if he did so unintentionally, he is exempt from paying for the dam-
order to avoid the prohibition of lashon hara. ages. If he did it intentionally, he must pay.
It is permissible, and even commendable, to publicize the fact that We also learned in the Tosefta (Bava Kamma 6:6): “An expert
a physician regularly makes incorrect diagnoses and does not treat physician who is licensed to heal, and caused damage, is exempt in
the patients properly. This is not considered lashon hara, since it is for a human court, but will be judged by a Heavenly Court.” This is the
the benefit of the public. Proof for this thesis is from maseches Niddah halachah (Shulchan Aruch, Yoreh Deah #336:1). 20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Magenta
(61a) where it says: “Since he should have been careful, but was not, it From the above we learn that the Sages persisted in exempting #20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Yellow 20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Black 20818_efi-ab - 20818_efi-ab | 8 - B | 18
is as if he had killed them.” See there. a physician who erred and caused damage unintentionally. We still
We also learn in the Chafetz Chaim (Hilchos Lashon Hara #10:1-2), have to define what is intentional (meizid) and what is unintentional
that if one sees a man do harm to someone else, such as if he steals (shogeg).
from him or exploits him or causes him damage, whether or not the The Tashbetz (Part 3 #82, cited by Birkei Yosef, Yoreh Deah #334),
victim knows of this… and he clearly knows that he did not return writes: “If the physician did more than he was supposed to do, this
that which he stole and did not pay him for his damages… he can tell is intentional and he is obligated to pay.” The Responsa Shevet Halevi
people in order to help the victims and to denigrate the act in the eyes (Part 4 #151) explains these words as follows: If a physician treated
of others, but he should be careful that none of the seven following the limb or organ that required treatment properly, but the result was
conditions be lacking. The conditions are: not good, he is exempt from paying because of the good of the world.
1. He saw the matter first-hand. But if he did more than necessary, such as if he made an incision in
a place that did not need cutting, and this resulted in damage, then
2. He should be careful not to immediately draw conclusions in
his mind, but should carefully ponder the essence of the matter, even if it was done in error, regarding payment he is considered as if
if it is halachically seen as stealing or damage. he acted intentionally.
One can also explain the words of the Tashbetz according to the
3. He should first rebuke the sinner in a soft tone. And if he does Misgeres Hashulchan (Yoreh Deah #336, end of #1), who writes that
not listen to him, then he can tell the public of this man’s sin. the Sages’ exemption applied only to mistakes that physicians are
4. He should not exaggerate the wrongdoing. likely to make. If, however, it is a clear assessment according to other

236 1 Medical-HalacHic Responsa of Rav ZilbeRstein Informing a patient about a mistake 2 233