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internist who made a mistake unintentionally is exempt even in a
Heavenly Court by Rabbinic decree “for the good of the world.” And
Chazal can decree that he be exempt even in the Heavenly Court, as
explained in the Introduction of the Tiferes Tzvi to maseches Bava
Kamma, (since he did no damage with his hands, but indirectly). If
so, we return to the question of whether or not a genetics expert is
included in this decree.
3. Grama d’grama - Very indirect causation
The author of Terumas Hadeshen (cited in Ketzos Hachoshen
#386:3) writes: “If one put fire into the hands of a deaf-mute, shoteh
or a minor and it burned bills or documents, he is exempt from pay-
ment because it is grama d’grama. So, too an informer who tells one
gentile that another gentile did business with the Jews, and when that
gentile was caught he slanders the Jews, is not held responsible for
the gentile’s slander. This causation is too indirect to implicate him,
as explained in Responsa Maharam of Rottenberg (Prague edition,
#844, See also Shach #386:3 and Ketzos Hachoshen, ibid.)
So, too, in our case it is grama d’grama. The physician gave in-
correct advice and as a result the parents gave birth to a baby with
Hunter syndrome. The acts of the parents are also considered to be
an indirect cause, especially since it was not certain that an unhealthy
child would be born.
4. The absence of success
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-
tient. Rather, it resulted in the birth of a blemished baby. Think about
it: If one consults with a botanist who incorrectly advises him to plant
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
difference because of the bad advice he gave? This is comparable to
someone who causes his friend loss by preventing his friend from
making a profit. As explained in the Yerushalmi (Bava Metzia, Ch. 5
44 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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could have sired a healthy child by marrying a healthy woman. If so, #
perhaps we should rule that the physician who gave erroneous genetic
advice caused the loss of a life.
In this case, there was only incorrect advice given, and no harm-
ful act was actually done. Nevertheless, there is room to condemn
the physician, because of the law of garmi (indirect damages), as
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-
eychanger erred in his evaluation of the coin, if the man already paid
the moneychanger and said: “I am relying on you,” the moneychanger
is obligated to repay the one who brought him the coin. The psak in
the Shulchan Aruch (Choshen Mishpat #306:6), is that if someone who
appears reliable gives a mistaken evaluation, he is obligated to repay
the money.
And even if the physician’s mistake was unintentional and not due
to any negligence, one can still rule that he is obligated to pay for
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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 2081
72a): A person is forever responsible, whether his deeds were unin-
tentional or on purpose, whether by accident or by intent.
This applies to active damages. Regarding indirect damages (garmi)
such as a mistake in judgment, there is a difference of opinion among
the poskim. The view of the Shulchan Aruch (Choshen Mishpat #386:1)
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
unintentional and the fine is a Rabbinic decree, we do not fine for
indirect unintentional damages (garmi). See also Aruch Hashulchan
(ibid., 8-10).
In spite of all this, one can exempt him also from liability in a hu-
man court, for a number of reasons:
1. The Sages’ decree
The principle that a person is always held responsible even for
unintentional acts does not apply to a physician who is licensed by
a beis din to practice medicine and damages a patient. This is the
Erroneous genetic advice 2 41