Page 36 - 20818_park-B_efi
P. 36
who undoubtedly desired to come clean before the Heavenly Court
as well. Thus we are once again left with a difficult question: If a judge
is exempt, why is a physician held accountable for his errors by the
Heavenly Court?
The Imrei Binah answers: It must be that the physician is held
A PHYSICIAN WHO GAVE accountable specifically in a case where the physician himself did the
ERRONEOUS GENETIC damage directly and he is comparable to a judge who actively caused
30 ADVICE damage, who would also be held accountable by the Heavenly Court.
(The Imrei Binah clarifies that this view is in opposition to the Rama
and the Tur, who rule that the judge is exempt even if he caused dam-
age actively.)
Therefore, continues the Imrei Binah, the physician’s accountability
applies only if he was paid, in which case he is like an expert ritual
1 Question slaughterer who made an animal into a tereifah and is obligated to
pay for his mistake. Likewise, as seems to be the view of the Ketzos
A couple came to consult with a physician before their marriage and Hachoshen, a judge who is paid is obligated to pay for his errors as
to confirm that they were not carriers of a genetic disease. Based on well. Thus the reason a physician who healed and erred is exempt is
the physician’s reassurance, they got married. Their baby was born only “for the good of the world.”
with a serious defect stemming from a genetically transmitted disease.
In context of what the Imrei Binah said several paragraphs above,
According to halachah, can the parents sue the physician for incor- we can understand that he is referring here only to a judge who gets
rectly diagnosing them as compatible? paid for every case individually, but if he receives a fixed monthly sal-
There was another case of a woman who went for a genetic consul- ary, he would be exempt because this is not viewed as receiving a fee.
tation before marriage to determine whether or not she was a carrier In my humble opinion, one can answer the question of the Imrei
of Hunter syndrome, from which her brother suffered. The physician Binah on the apparent difference in halachah between a physician who
determined that she wasn’t a carrier, and as a result, the woman got erred and a judge who erred as follows: The argument for holding the
married and gave birth to a son. After some time, the boy was di- judge accountable, in both the Heavenly Court and the human court,
agnosed with Hunter syndrome. The boy is exceptionally sweet and would be over and above the law and it would be only a monetary
intelligent, a happy child who loves life despite his many restrictions obligation. Our Sages do not obligate him to go over and above the
and suffering. He is currently eleven years old, has difficulties with law, because if they did, as the Rif points out, who would want to be
basic functioning and his breathing is labored. a judge? This especially applies to a judge who deals with monetary
The mother began a lawsuit against her female physician on behalf issues where we apply the rule of “hefker beis din hefker,” and thus even
of her sick son. The secular courts concluded that indeed there are if the judge erred and caused monetary damage it is as if he damaged
cases where a person can claim that it would have been better had ownerless money or property.
he not been born, such as a child destined to a lifetime of serious re- Obviously the above does not apply to a physician who damaged
strictions. If his birth was the result of medical negligence, the child is the body of the patient directly. In his case, payment in the Heavenly
30 1 Medical-HalacHic Responsa of Rav ZilbeRstein Error in Refraction Measurements 2 55 # 20818
2
