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match, the questioner has to explain his reason for asking, so as not
to cause the other to speak lashon hara.
Now, we can return to our discussion regarding a surgeon who mis-
AN EXPERT SURGEON
32 MISHANDLED SURGERY: takenly removed the wrong kidney. Is the physician obligated to pay
the woman for damages and for removing the wrong kidney? I believe
SHOULD HE HIMSELF FIX
the physician is exempt from paying for the injury, since he did no
THE DAMAGE OR SHOULD
ANOTHER, LESS EXPERT damage but removed a cancerous kidney.
SURGEON, DO SO? It would seem that this story resembles the actions of Rabban
Gamliel, who rejoiced greatly when he freed his servant by blinding
his eye. In fact, it is even better - because Rabban Gamliel was not
commanded to blind Tavi (although blinding him was a favor to him
because it freed him), while the physician unknowingly did a mitzvah
by removing the diseased kidney and saving the woman’s life. As the
1 Question Shaarei Deah (#56) writes, even according to the view that mitzvos
require intent, this rule only applies to mitzvos between man and G-d,
A man suffering from an enlarged prostate was coming twice yearly but not to those between man and his fellow. As it says in maseches
to the hospital for tests. On one of his visits, the physician inserted Bava Metzia (82b) even a lender who lends only because he needs the
a cystoscope without adequate care, puncturing the urinary bladder security item has performed a mitzvah.
and injuring the large intestine. The physician immediately performed Thus if the woman sues the surgeon, he is exempt from paying her.
surgery. After fighting for his life for several weeks, the patient was On the other hand, perhaps it would be correct for the authorities to
finally out of danger. revoke the physician’s license or to punish him in another way for his
In order to correct the condition, the patient now needs additional negligence in removing the left kidney instead of the right. Although
surgery. The hospital administration nominated the same surgeon Hashem chose this physician as a good agent to save the woman’s life,
who made the initial mistake to perform the surgery now. While he is he is still responsible for the negligence. As it says in maseches Bava
viewed as a senior and experienced surgeon, the patient has lost faith Batra 21b, an expert [physician] can be fired without warning if he
in him and requests that the surgery be performed by a different phy- makes a mistake.
sician, who is less of an expert. The family asked me for my opinion. [The Maggid of Dubna asks about the grandsons of Haman who
Which is preferable? What should I advise the patient? studied Torah in Bnei Brak (Gittin 57b): What did Haman do to
merit such grandsons? He answers with a parable. A prince once
1 AnsweR nearly choked on a bone stuck in his throat. An evil, heartless man
walked by and hit him on the back of his neck with the intention of
We learned in maseches Bava Kamma (85a) that if one injures his killing him. To his surprise, the act saved the prince’s life by dislodg-
fellowman he cannot treat him himself but is obligated to hire a phy- ing the bone from his throat. The king sentenced the man to death for
sician to treat and heal him. Several halachos are taught here: hitting his son, but since he ultimately saved the prince’s life, the king
64 1 Medical-HalacHic Responsa of Rav ZilbeRstein Removed the Wrong Kidney 2 85 # 20818
