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physicians that he erred in an issue due to his own lack of study or 8 We can learn this from maseches Bava Kamma (99b) and the Ram- # 20818
carelessness, then he is liable to pay. So, too, writes the Sefer Tov Ayin bam (Hilchos Sechirus 10:5): If one shows a dinar to a moneychanger
(by the Chida, #9:8): If the physician admits he did not adequately and asks him to evaluate it so that he could decide if to accept it,
delve into the cause of the illness and therefore gave medications, and the moneychanger mistakenly evaluates it as good, then if the
which harmed the patient, everyone knows that he is liable. This may moneychanger is a “great expert,” he is exempt from paying for the
be the intent of Tashbetz’s words: that if the physician erred “more loss. His mistaken evaluation is viewed as an oness (as explained in
than he should have erred,” he must pay. Shulchan Aruch, Choshen Mishpat #306:6). The Shach (ibid., 11) writes
In our case, the physician did not adequately examine the patient that according to the Maharshal he is exempt even if he received pay-
and therefore failed to treat the retinal detachment. If the patient ment for his evaluation. However, if he is not a great expert, then even
would have lost his sight, although the physician is viewed as an if he saw it and evaluated it without taking payment, he is obligated to
intentional damager, it would be impossible to obligate him to pay pay, because of the law of garmi (indirect causation). His act is viewed
for the damages, since he did not actively blind him. There was only as negligence in this case: he should have studied more, and the coin
omission on the part of the physician in neglecting to provide the owner relied on him. This is the halachic benefit accorded to a “great
required treatment, but there is no active damage. Therefore he is ex- expert.”
empt in a human court but will have to answer in a Heavenly Court Moreover, if a physician is not a “great expert,” and he incorrect-
and be punished. About him, it is said: “Cursed is he who performs ly prescribed drops that the patient administered to himself, if the
Hashem’s work deceptively” (Yirmiyahu 48:10). Thus, since by Torah damage did not occur immediately, he is exempt. Harm that does not
law the physician is exempt from payment, it is prohibited to encour- occur at the time of the act is considered to be grama (which is even
age the family to sue the physician in a secular court. more indirect) and not garmi, as explained by the Rosh (Bava Kamma
Even if the negligent act is very severe, such as if he not only ne- 9:13) and in the Or Zarua (Bava Kamma #137). This is not comparable
glected to treat the problem, but also prescribed the wrong eyedrops, to showing a dinar coin to a moneychanger, where the damage occurs
and the patient himself administered the drops and became blind as at the time of the act (i.e., as soon as he tells him the coin is valid, he
a result, here too, the physician is exempt from payment. Even in a has harmed him, since by doing so he has immediately exonerated the
severe case like this, the physician is considered the indirect cause of person who gave him the coin.)
the damage. He is like someone who put poison in front of someone If the physician or the hospital are insured by an insurance compa-
else’s animal, and the animal ate it and died. This person is exempt in ny that pays even for harm done to patients very indirectly (grama),
a human court because it is viewed as indirect causation, as explained such as in our case, and then one should tell the family to sue the
in maseches Bava Kamma (44b). physician (with the prior permission of a beis din). The payment in
This ruling (that if a physician prescribed the wrong treatment and this case is not based on the obligation to pay for damages, but on a
the patient put the drops in his eyes and was immediately harmed, the business arrangement. The insurance company committed itself to
physician is exempt because it is viewed as indirect causation) applies paying compensation to the patient who was harmed by the failures
only if the physician is a “great expert.” If he has not yet reached that or omissions of the physician or the hospital. This is in exchange for
level, then even if he knows medicine, he is liable to pay according to the insurance premiums paid by the physician or the hospital. Just as
the law of very indirect causation (grama), since the patient had faith a person can insure himself and receive payment for loss due to an
in him and relied on him. illness for which no one is at fault, so too here.
234 1 Medical-HalacHic Responsa of Rav ZilbeRstein Informing a patient about a mistake 2 235
