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Obligation to recompense someone for therapy
expenses and suffering
We have established that parents have no halachic right to sue on
behalf of their sick child because of erroneous genetic advice. There is
also no claim against the child’s mother, because if it were not for the
physician’s error, she would not have had a child at all. However, the
father may have the right to sue the physician for the suffering and
fear, the hardships and the exorbitant medical expenses he incurred
as a result of the physician’s mistaken advice (because the father is
healthy and could have married a healthy woman).
Sometimes, erroneous genetic advice may cause a death. In ma-
seches Yevamos 64b it says: A man should not marry a woman from
a family of epileptics or a family of lepers, meaning that if there were
three cases in the family, one should not marry into the family, as fu-
ture children may also be affected. The Shulchan Aruch (Even Haezer
#2:7) rules the same.
(From the words of Aruch Hashulchan (ibid., 2:4) we learn that the
words of Chazal are not just good advice but also a prohibition. The
Pischei Teshuvah (ibid., 8) brings the poskim’s rulings about a woman
who has two sisters who are either epileptics or lepers. Is one allowed
to marry her? The Aruch Hashulchan rules as follows: if a woman has
two sisters who are epileptics or lepers, it is prohibited to marry her
because of the presumption that any children born to them will be
epileptics or lepers.)
The Yam Shel Shlomo (Yevamos, Ch. 6:38, cited in Pischei Teshuvah,
ibid.) asks: Why is it that regarding death following circumcision a
presumption is established after only two consecutive events, while
regarding genetically transmitted epilepsy or leprosy, we wait for
three occurences in the family to prohibit one from marrying into the
family? (See Shulchan Aruch, Yoreh Deah #263:2.) Should we not rule
stringently when it is a question of danger to life?
We learn from this question that if a man marries a woman from
a family of epileptics or lepers, he is viewed as killing his child, for he
40 1 Medical-HalacHic Responsa of Rav ZilbeRstein
#
#3) and in the Rosh (Bava Kamma, Ch. 2:6) he is not held responsible.
His friend can legitimately harbor bad feelings towards him, but he
cannot demand payment.
In our case as well, the misleading advice resulted in the birth of se-
verely blemished babies instead of healthy and complete ones. There
is no damage here, but rather a “loss of profit” so to speak, and for this
we cannot obligate payment by Torah law. This is especially so since
the damage was not certain to occur. The parents could have given
birth to healthy babies who are only carriers of the Hunter gene but
do not have the disease themselves.
The Chasan Sofer (#137) was asked about a man whose wife and
his wife’s sister both died of whooping cough. After her death, his
wife appeared to him in a dream a number of times and asked him to
marry her single sister, threatening him with severe punishments if he
did not marry her. The Chasan Sofer ruled that the man is permitted
to marry her, according to the Rashba (Yevamos 64b s.v. midesamah),
which states that an illness is only established as affecting an entire
family after three occurrences. This differs from the case of a baby
boy whose two brothers bled to death after circumcision. In the
case of the baby boy, two occurrences in the family are enough to
determine that circumcision would be a danger to the life of the baby,
which is not so in this case. The difference is that in the case of a
healthy woman whose sisters died of illness, we are not concerned
that a certain act will put her life or the life of her child in danger, but
rather that she may bring a sick child into the world. There is always
the possibility that she will have a healthy child as well. Thus, it takes
three occurrences to set a halachic reality in this case. (Cited in Otzar
Haposkim, Even Haezer #2:43)
5. Mistake of an Expert
If an expert physician gave advice free of charge, and then he made
a mistake, since, for example, he did not make the effort to find out
that there is a new blood test that can reveal with certainty if the
woman is carrying a disease, the physician is exempt from paying for
his error. As explained in Shulchan Aruch (Choshen Mishpat #306:6):
Erroneous genetic advice 2 45