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

232 1 Medical-HalacHic Responsa of Rav ZilbeRstein Informing a patient about a mistake 2 237