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internist who made a mistake unintentionally is exempt even in a could have sired a healthy child by marrying a healthy woman. If so, #
Heavenly Court by Rabbinic decree “for the good of the world.” And perhaps we should rule that the physician who gave erroneous genetic
Chazal can decree that he be exempt even in the Heavenly Court, as advice caused the loss of a life.
explained in the Introduction of the Tiferes Tzvi to maseches Bava In this case, there was only incorrect advice given, and no harm-
Kamma, (since he did no damage with his hands, but indirectly). If ful act was actually done. Nevertheless, there is room to condemn
so, we return to the question of whether or not a genetics expert is the physician, because of the law of garmi (indirect damages), as
included in this decree. cited in maseches Bava Kamma (99b). If one shows a dinar coin to a
moneychanger and it turns out to be counterfeit, meaning the mon-
3. Grama d’grama - Very indirect causation eychanger erred in his evaluation of the coin, if the man already paid
the moneychanger and said: “I am relying on you,” the moneychanger
The author of Terumas Hadeshen (cited in Ketzos Hachoshen is obligated to repay the one who brought him the coin. The psak in
#386:3) writes: “If one put fire into the hands of a deaf-mute, shoteh the Shulchan Aruch (Choshen Mishpat #306:6), is that if someone who
or a minor and it burned bills or documents, he is exempt from pay- appears reliable gives a mistaken evaluation, he is obligated to repay
ment because it is grama d’grama. So, too an informer who tells one the money.
gentile that another gentile did business with the Jews, and when that And even if the physician’s mistake was unintentional and not due
gentile was caught he slanders the Jews, is not held responsible for to any negligence, one can still rule that he is obligated to pay for
the gentile’s slander. This causation is too indirect to implicate him, damages because a person who causes damage is obligated to pay, 20818_efi-ab - 20818_efi-ab | 2 - B | 18-08-20 | 13:29:01 | SR:-- | Magenta
as explained in Responsa Maharam of Rottenberg (Prague edition, whether it was unintentional or on purpose. As it says (Sanhedrin #20818_efi-ab - 20818_efi-ab | 2 - B | 18-08-20 | 13:29:01 | SR:-- | Yellow 20818_efi-ab - 20818_efi-ab | 2 - B | 18-08-20 | 13:29:01 | SR:-- | Black 20818_efi-ab - 20818_efi-ab | 2 - B | 18-08-2
#844, See also Shach #386:3 and Ketzos Hachoshen, ibid.) 72a): A person is forever responsible, whether his deeds were unin-
So, too, in our case it is grama d’grama. The physician gave in- tentional or on purpose, whether by accident or by intent.
correct advice and as a result the parents gave birth to a baby with This applies to active damages. Regarding indirect damages (garmi)
Hunter syndrome. The acts of the parents are also considered to be such as a mistake in judgment, there is a difference of opinion among
an indirect cause, especially since it was not certain that an unhealthy the poskim. The view of the Shulchan Aruch (Choshen Mishpat #386:1)
child would be born. is that one is obligated to pay even if the damage was unintentional,
and the view of Shach (ibid., #386:3) is that since the damage was
4. The absence of success unintentional and the fine is a Rabbinic decree, we do not fine for
indirect unintentional damages (garmi). See also Aruch Hashulchan
The mistaken genetic advice did not actually cause damage, such as
the loss or weakening of a limb, and the bringing of pain upon a pa- (ibid., 8-10).
tient. Rather, it resulted in the birth of a blemished baby. Think about In spite of all this, one can exempt him also from liability in a hu-
it: If one consults with a botanist who incorrectly advises him to plant man court, for a number of reasons:
a specific type of tree, and as a result, he profited only one thousand
dinars instead of five thousand, is the botanist obligated to pay the 1. The Sages’ decree
difference because of the bad advice he gave? This is comparable to The principle that a person is always held responsible even for
someone who causes his friend loss by preventing his friend from unintentional acts does not apply to a physician who is licensed by
making a profit. As explained in the Yerushalmi (Bava Metzia, Ch. 5 a beis din to practice medicine and damages a patient. This is the

44 1 Medical-HalacHic Responsa of Rav ZilbeRstein Erroneous genetic advice 2 41