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view of the Shulchan Aruch (Yoreh Deah #336:1), who says that if he 2 who heals with potions and laxatives, and who made a mistake in his
practiced medicine with a license from a beis din and erroneously
caused damage, he is exempt in a human court but held responsible
in the Heavenly Court. The reason for the exemption is a takanas
Chachamim (decree of the Rabbis), who were concerned that if we
were to obligate physicians to pay for unintentional mistakes that
they commit, they would stop practicing medicine. This is the way
it is explained in the Tosefta (Gittin 3:13). If an expert physician who
was licensed to heal by a beis din caused damage due to a mistake, if it
was unintentional, he is exempt, while if it was done on purpose he is
obligated to pay for the damages “for the good of the world.”
One can argue whether or not we should exempt the physician in
our case. The argument would be that our Sages’ exemption “for the
good of the world” applies to doctors involved in the mitzvah of heal-
ing illnesses. This does not apply to a genetics advisor. Although his
advice is valuable, as our Sages said (Yevamos 64b): “A person should
not marry a woman from a family of epileptics or lepers,” nevertheless
the genetics advisor is not halachically considered a physician but
a “moneychanger.” Thus, one has to think hard whether or not the
above decree applies to him or her. Even if we decide that a genetics
advisor is included in the decrees, the exemption would be only in a
human court but not in the Heavenly Court.
2. Grama
The Tashbetz writes (Part 3 #82): It says in the Tosefta in Makkos:
“An expert physician who healed with a license from a beis din and
killed someone unintentionally or by accident is exiled to one of the
cities of refuge.” This applies to an expert physician who heals with
surgery, but not to a physician who heals with potions and laxatives. If
he unintentionally harmed a patient who then died, and his intention
was to heal and not to harm, he is exempt even in a Heavenly Court
because he is responsible only for what his eyes see.”
These words require explanation. Responsa Minchas Yitzchak (Part
3 #104) explains this: The surgeon who caused the death of a patient
with his hands unintentionally must be exiled, while the physician
42 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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prescription, is exempt from exile since he is only the indirect cause
of the death. In view of this, one who errs in giving genetic advice is
exempt from payment because he too is only the indirect cause of the
birth of a blemished child. He is even exempt in the Heavenly Court,
as explained in the Tashbetz.
It is possible that the Tashbetz’s view is based on the principle es-
tablished by the Meiri (Bava Kamma 56a, s.v. vechayim harbei) who
writes that the person who “indirectly” caused damage - about whom
Chazal ruled that he is exempt in a human court but held accountable
in a Heavenly Court - is similar to someone who puts fire into the
hands of a deaf-mute, a shoteh, or a minor, or someone who puts poi-
son in front of someone else’s animal. This man is guilty in the eyes of
Heaven; his intent was to harm and damage even though he did not
do so with his hands.
However, there are also those who are exempt in the Heavenly
Court as well, those whose intent was not to do damage at all. Hashem
knows the secrets of man’s heart. Rashi writes (Gittin 53a): “He is held
accountable in the Heavenly Court.” Hashem will bring punishments
upon the wicked whose intention was to cause harm to a Yisrael. This
implies that if someone unintentionally caused damage, he is exempt
even from the Heavenly Court.
But we still need to ask: As we have cited, if one shows a dinar
coin to a moneychanger and the latter erred in the evaluation of
the coin and did damage unintentionally, the moneychanger is still
obligated to pay! How can we reconcile this with the implication of
the Rashi above? The Ramban answers (Kuntres Dina Degarmi), as
cited by the Shach (Choshen Mishpat #386:1) that since he should have
inspected the dinar coin more thoroughly, he was negligent and is
halachically considered a sinner and a mazik. Perhaps the same applies
to a physician. If he did not study the matter thoroughly enough, he
was negligent and is considered a sinner. However, if he erred in his
judgment and there was no greater physician available with whom he
could consult, he is exempt even in the eyes of the Heavenly Court.
We can go further in explaining the words of the Tashbetz. An
Erroneous genetic advice 2 43