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Although the insurance company is likely to charge the physician
a much higher premium after this claim, it is still permissible for the
family to sue in court. Since they are not damaging him directly but
very indirectly (grama), and the physician too harmed by negligence
very indirectly, they are not obligated to lose the money that is coming
to them. The extra premium money that the physician pays will be
atonement for his omission and he will be forgiven.
1 AnsweR to Question 2
Now we will deal with the question of whether or not one should
withhold the information about the doctor’s failure or omission in
order to avoid the prohibition of lashon hara.
It is permissible, and even commendable, to publicize the fact that
a physician regularly makes incorrect diagnoses and does not treat
the patients properly. This is not considered lashon hara, since it is for
the benefit of the public. Proof for this thesis is from maseches Niddah
(61a) where it says: “Since he should have been careful, but was not, it
is as if he had killed them.” See there.
We also learn in the Chafetz Chaim (Hilchos Lashon Hara #10:1-2),
that if one sees a man do harm to someone else, such as if he steals
from him or exploits him or causes him damage, whether or not the
victim knows of this… and he clearly knows that he did not return
that which he stole and did not pay him for his damages… he can tell
people in order to help the victims and to denigrate the act in the eyes
of others, but he should be careful that none of the seven following
conditions be lacking. The conditions are:
1. He saw the matter first-hand.
2. He should be careful not to immediately draw conclusions in
his mind, but should carefully ponder the essence of the matter,
if it is halachically seen as stealing or damage.
3. He should first rebuke the sinner in a soft tone. And if he does
not listen to him, then he can tell the public of this man’s sin.
4. He should not exaggerate the wrongdoing.
236 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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emption for dayanim from payment for damages that occurred as a #
result of an erroneous judgment on their part (unless they caused the
damage “with their hands” - i.e., directly)
A similar decree was enacted by the Sages for physicians who err
and are exempt from payment. As cited in Tosefta (Gittin 3:13, with
the explanation of the Minchas Bikkurim): An experienced physician
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
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
beis din in order to save her life, and he harms the mother while doing
so, if he did so unintentionally, he is exempt from paying for the dam-
ages. If he did it intentionally, he must pay.
We also learned in the Tosefta (Bava Kamma 6:6): “An expert
physician who is licensed to heal, and caused damage, is exempt in
a human court, but will be judged by a Heavenly Court.” This is the
halachah (Shulchan Aruch, Yoreh Deah #336:1). 20818_efi-ab - 20818_efi-ab | 8 - B | 18-08-20 | 13:29:02 | SR:-- | Magenta
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a physician who erred and caused damage unintentionally. We still
have to define what is intentional (meizid) and what is unintentional
(shogeg).
The Tashbetz (Part 3 #82, cited by Birkei Yosef, Yoreh Deah #334),
writes: “If the physician did more than he was supposed to do, this
is intentional and he is obligated to pay.” The Responsa Shevet Halevi
(Part 4 #151) explains these words as follows: If a physician treated
the limb or organ that required treatment properly, but the result was
not good, he is exempt from paying because of the good of the world.
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
even if it was done in error, regarding payment he is considered as if
he acted intentionally.
One can also explain the words of the Tashbetz according to the
Misgeres Hashulchan (Yoreh Deah #336, end of #1), who writes that
the Sages’ exemption applied only to mistakes that physicians are
likely to make. If, however, it is a clear assessment according to other
Informing a patient about a mistake 2 233