Introduction
The human and financial burden of physician
error is staggering. In the United States, an estimated 100,000 hospitalized patients
die yearly as a result of medical mistakes.1 In developed countries, medical malpractice ranks
as one of the top ten causes of disability and premature death.2 The cost to society in
terms of lost wages and medical expenditure resulting from physician error is
approximated to be between 17-29 billion dollars annually in the United States
alone.3
The gravity of physician error has, under standably, generated an elaborate and well developed body
of secular legal literature. Surprisingly, halachic
literature, until relatively recently,4 has dealt only
sparingly with this topic. Excepting a number of brief statements found in the
Tosefta5 and one
citation in the Babylonian Talmud,6 no primary Jewish sources directly addressed this
issue until Ramban’s Torat
ha-Adam.7 The paucity of available sources makes it
difficult to readily identify the appropriate legal framework within which this
topic should be analyzed. Is, for example, the physician who errs similar to a
bailee who is remiss in his duties or should he more properly be compared to a
tortfeasor who has damaged his friend’s property or injured his person? Perhaps
the physician more closely resembles an artisan who damages goods given him or
a judge who errs in judgment. Since the legal principles governing the errors of,
for example, bailees, tortfeasors, artisans and judges are fundamentally
different one from the other, it is of paramount importance to determine which
of these cases, if any, physician error most closely resembles.
Identifying the legal model upon which
physician error is based, is particularly challenging when addressing cases in
which the patient dies as a result of the error. In a narrowly defined set of
circumstances in which death results from negligence, halacha mandates
galut, exile to a designated city of refuge, for the
one who kills through an act of negligence. Furthermore, once relegated to the
city of refuge, he may not leave for fear of being killed by the goel ha-dam, the blood avenger of the deceased. Do the
laws of galut and goel ha-dam apply to the physician whose patient dies due
to error? If galut does
apply to the physician, what obligation devolves upon the physician in the
current historical epoch in which there are no cities of refuge and galut is inoperative?
In a recently published comprehensive review of
this topic,8 Rabbi
JD Bleich addresses these questions by citing authorities who analyze existing halachic
models of monetary damages and galut in order to
develop a framework in which to assess physician error. These authorities mine
the vast literature of hiyyuvei mammon
(monetary obligations) and hiyyuvei galut (the obligation for exile) in non-medical
settings and arrive at halachic conclusions based upon the specific
model they deem most closely resembles medical error.
According to this approach, physicians who harm
or kill a patient due to error are judged in accordance with the classic laws
of hiyyuvei mammon or hiyyuvei galut.
In this article,9 I attempt to demonstrate that the codifiers of
normative halacha, R. Yaakov ben Asher (Tur) and R. Joseph Caro (Shulchan
Aruch), based on the position taken by Ramban in his Torat
ha-Adam, do not view the case of physician error through the lens of
classic hiyyuvei mammon and hiyyuvei galut.
Rather, I suggest, that these authorities understand physician error to be a
unique halachic category with its own distinct rules and regulations. In
order to clarify the approach I am advancing, and to best understand its
practical ramifications, I will begin with a brief overview of the primary
sources addressing medical error.
Primary Sources
Sources regarding Galut
Medical error resulting in the patient’s death
is addressed in the Tosefta and the Talmud, each on
one occasion:
“An expert physician who received permission
from the courts to practice medicine (and kills his patient in the course of
medical treatment) is exiled.” (Tosefta Makkot, Hashmatot 2:4)
“Rabbi Ishmael taught: ’verapo
yerapeh - and He shall cause him to be thoroughly
healed’ (Shemot 21:19) from this verse (you
derive)that permission was granted the physician to heal.” (BT
Bava Kamma 85a)
Tosefta Makkot makes
an unqualified statement that a physician is exiled if his patient dies as a
result of medical error. Based on this source, some authorities10 arrive at the
conclusion that the physician has a classic hiyyuv
galut if his error is similar to the type of
error that, in non-medical settings, would obligate galut.11
It is unclear, however, whether Rabbi Ishmael’s
Talmudic statement is in agreement with the Tosefta Makkot. Indeed, when Rabbi Ishmael refers to the
permission granted to heal, to what permission does he refer? Is the physician
not obligated to heal based on the verse “do not stand idly by your brother’s
blood?” (Vayikra 19:16). Why would permission be required in order to
discharge an obligation?12
Perhaps then, Rabbi Ishmael’s biblically based “permission” is to be understood
to refer to an exemption from culpability rather than an allowance to heal.
I will, indeed, attempt to prove that both Tur
and Shulchan Aruch understand that
according to Rabbi Ishmael there exists a biblical exemption from galut based on the verse “verapo
yerapeh.” Prior to providing proof for this
contention, I will turn briefly to three sources in the Tosefta
which touch upon financial obligations arising from medical error.
Sources regarding monetary obligations
“An expert physician who received permission
from the courts to practice medicine, if he harms his patient, is exempt from
payment according to the laws of man and his judgment is given to (the court
of) heaven.” (Tosefta, Bava Kamma 6:6)
“An expert physician, who received permission from
the courts to practice medicine, if he harms his patient, is exempt (from
payment)” (Tosefta, Bava Kamma 9:3)
“An expert physician who received permission
from the courts to practice medicine, if he harms his patient through
negligence is exempt (from payment)... this is so due to a societal need.” (Tosefta, Gittin 3:13)
Tosefta Gittin
(3:13), refers to an exemption the physician enjoys from payment. It provides a
rationale for this immunity by stating that it is “due to a societal need.”13 According to this
source, the rabbis enacted a rabbinic decree providing for financial immunity
to the physician due to society’s need to attract and retain qualified
physicians. If physicians would have to pay for injuries every time they erred,
few individuals would enter the field of medicine. Accordingly, this source
implies that from a biblical standpoint a fundamental hiyyuv
mammon exists
between the physician and the patient from which the rabbis exempted the
physician.
The two sources in Tosefta
Bava Kamma, similarly refer to an exemption the physician
enjoys from paying in the court of law. Neither of these sources, however,
provides a rationale behind the physician’s exemption and in neither is mention
made of a rabbinic decree. I will attempt to demonstrate that the two Tosefta in Bava
Kamma are, in
fact, in disagreement with Tosefta Gittin. These sources
view the physician’s dispensation as biblical, and not rabbinic in origin.
Indeed, I will establish that Tur and Shulchan
Aruch understand
that Rabbi Ishmael’s biblical dispensation from galut,
derived from verapo yerapeh,
applies to monetary payment as well.
It is this proposed biblical exemption from galut and monetary payments that, I suggest, confers
upon the laws of medical error a unique character, distinct from classic hiyyuvei
mammon and hiyyuvei galut. In
order to prove this thesis we start with an analysis of the codified laws in Tur and Shulchan Aruch regarding a physician’s obligation of galut.
Galut
Tur (Yoreh De’ah 336), in
discussing the laws of medical malpractice writes, “If the physician (in the
course of medical administration) causes the death of his patient, and becomes
aware of his error, he is exiled - goleh -
on this account.” R. Joseph Caro (Shulchan Aruch, Yoreh De’ah 336:1) rules
similarly.
Tur’s
codification of galut is most perplexing.
Indeed, in Tur’s introduction to Yoreh
De’ah he defines the purpose of that book as
“providing knowledge to adjudicate laws that apply in these times.” Of course,
the laws of galut had lapsed long before Tur
wrote his work. In fact, Tur (Hoshen
Mishpat 425)
expressly states that galut is one of
the areas of Jewish law that can no longer be practically implemented.
Accordingly, Tur does not cite the obligation of galut anywhere else in his work. Why then is galut codified exclusively regarding physician error?
A number of possible answers have been advanced
to explain Tur’s curious mention of galut. Some
authorities have suggested that Tur is emphasizing the gravity of medical error.
Others see Tur’s inclusion of galut as an indication of a present day obligation
for repentance and expiation for galut that would have been mandated had cities of
refuge been operative.14 15 These approaches
leave unanswered, however, why galut is mentioned solely in the context of medical
malpractice. Surely, the gravity and the need of repentance for inadvertent
homicide are no less applicable to a wide array of other, non-medical,
settings. Why codify galut only
here?
It appears, therefore, that Tur’s unique
ruling regarding galut, in the context of physician error, does not
refer to its conventional definition. In fact, Tur (Yoreh De’ah
335) in his introduction to Hilchot Rofim states
that his laws governing physicians are “a compilation derived from the great
master, Ramban” and Bet
Yosef explicitly
attributes Tur’s ruling regarding galut to Torat
ha-Adam (Inyan ha-Sakanah).
In that work, Ramban
explains that the verse “verapo yerapeh - and He shall cause him to be thoroughly
healed” (Shemot 21:19) exempts the
physician from actual galut. Indeed, Ramban states that despite the seemingly unqualified
declaration of Tosefta (Makkot,
Hashmatot 2:4) that a physician who kills in the
context of his work is condemned to galut,
that statement is not to be understood at face value. Instead, galut is the physician’s “obligation to heaven to exile
himself for the death of his patient” and is incumbent only if “the physician
is aware of having erred”. Tur apparently views Ramban’s
obligation to heaven as distinct from true galut. The physician who errs is exempt from true galut.15,16 Tur’s
normative codification of galut
15 Ramban’s
Biblical immunity from galut should not be understood
to mean that the physician enjoys immunity for any type of injury he might
inflict on a patient. Certain types of mistakes may result from a degree of
negligence so egregious that they cannot be classified as falling under the
halachic category of error. Under such circumstances, the physician would
indeed be culpable in the court of man yet there would be no obligation of galut since halachic exile is limited to cases which are
classified as arising from error.
16 According to Ramban, the physician is
exempt from literal exile on the basis of a unique biblical verse. An analysis
of the general laws of galut, however, would indicate
that the physician should be exempt from galut
without the need for a profession specific dispensation. Indeed, mishna BT Makkot 8a states that a
court messenger, who, in the process of administering lashes, inadvertently
kills his ward, is exempt from galut. This exemption
is explained by the mishna as arising from the fact
that galut is limited to cases in which death results
from an activity that is discretionary in nature. Since the court messenger is
performing an obligatory mitzvah in delivering lashes, he is exempt from galut (Ramban in Hidushei ha-Ramban, Makkot 8a offers a number of explanations to explain the
exemption of the court messenger,one of which is
based on the messenger’s performing a mitzvah). If this is so, we would expect
the physician, who in delivering medical care is performing a mitzvah, to be
similarly exempt from galut. Why then does Ramban require the unique verse ’verapo
yerapeh’ to exempt the physician from galut?
Yad Avraham (Yoreh De’ah
336), who understands Tur to refer to actual galut,
proposes a distinction between the court messenger and the physician. Unlike
the court messenger, who in administering lashes is performing a mitzvah, the
physician is not considered to have performed the mitzvah of healing if the
patient dies. This distinction is, however,difficult
to understand. Surely, the messenger,upon killing his
charge, has not performed the mitzvah of delivering lashes. Rather, his
intention of performing a mitzvah is presumably what affords him dispensation
from galut. A physician, then, should be similarly
exempt from galut if his intention was to heal his
patient.
I believe that Ramban’s citation of a
unique verse to exempt the physician from galut may
be understood in light of BT Bava Kamma 32b. In that source, the Talmud rules
that a court messenger who, upon the direction of the bailiff, administers more
lashes than the number assessed by the court, and thereby kills his charge, is,
in fact, exiled. Yet, this ruling appears to be inconsistent with Makkot 8a which exempts the court messenger from galut in the case where the ward dies as a result of the
lashing administered by the court messenger in accordance with the instructions
of the court. Perhaps, the two Talmudic rulings can be reconciled by noting
that the error, which resulted in death, is fundamentally different in the two
Talmudic sources. Makkot 8a refers to an instance in
which the court erred in its assessment of how many lashes the recipient could
safely sustain. Bava Kamma 32b, on the other hand, describes an error in the
implementation of the lashes. Apparently, errors in assessment are exempt from galut when undertaken with the intention of performing a
mitzvah whereas errors in implementation are not.
If this distinction is correct, the need to cite a unique verse in
exempting the physician from galut becomes clear. In
cases in which the physician causes the death of a patient due to an error in
assessment, he is immune from galut due to the
general dispensation afforded to anyone who kills while attempting to refers to a timelessly applicable obligation to
heaven rather than a commandment to flee to a city of refuge. Galut, in this
context, is a moral imperative for introspection and self
improvement.16 17
Tur’s understanding
of Ramban, explains the latter’s unusual caveat that galut is obligatory only if the physician is
“aware of having erred.” Were galut to refer
to its’ conventional definition, awareness of error would prevent the practical
implementation of galut but would have no
bearing on the fundamental obligation of exile. Since in the case under discussion,
however, galut is a requirement to perform self examination and reflection, cognizance of error is, understandably,a prerequisite.Absent
awareness, no self reflection can take place.
It should be noted that according to Ramban, the verse “and He shall cause him to be thoroughly
healed” serves a dual purpose. On the one hand it provides a dispensation from
classic hiyyuvei galut,
and at the same time it generates a residual obligation of repentance.
Monetary damages
In addition to dealing with cases in which the
patient dies due to physician error, Tur (Yoreh
De’ah, 336) addresses circumstances in which the
physician harms but does not kill his patient. Tur writes,
“If (the physician) practices medicine with a license but errs and causes harm,
he is not liable according to the laws of man but he is liable according to the
laws of heaven.”
The traditional understanding of Tur, as
posited by the authorities cited in R. Bleich’s article, assumes that the
monetary dispensation enjoyed by the physician is rabbinic in origin. Tur’s ruling
is presumed to be based on Tosefta Gittin (3:13) which states that due to a societal need
to attract physicians, the rabbis enacted a degree of financial immunity to the
physician. According to this reading of Tur, an underlying Biblical monetary obligation
exists between the physician and the patient and while the courts will not
enforce payment of damages, the physician is none-the-less expected to
discharge a classic hiyyuv mammon which is
present according to the laws of heaven.
Tur writes,
however, that his rulings on these matters are based on Ramban’s
Torat ha-Adam. In
that work Ramban in discussing the physician’s
financial obligations first quotes Tosefta Bava Kamma (6;6),
“An expert physician who received permission from the courts to practice
medicine, if he harms his patient, he is exempt from the laws of man and his
judgment is given to (the court of) heaven.” Ramban
continues by saying “the expert, licensed, physician who harms or kills his
patient is exempt from paying according to the laws of man but is not exempt
from the law of heaven until he pays or
exiles himself since he has become aware of his error.”
Ramban’s formulation, “until he pays or exiles himself”
equates the laws governing the physician’s financial obligations and his
obligation of galut. Ramban implies that
the source of the physician’s immunity from payment “according to laws of man”
is identical to the immunity from exile. Although he does not state so
explicitly, Ramban, in parallel to his position
regarding galut, apparently substantiates his position
regarding monetary immunity by reference to the verse “and He shall cause him
to be thoroughly healed.” According to Ramban, this
verse effectively removes the physician from financial liability for tortious
battery.18 So long
as the practitioner is expert and licensed, he is defined as a “physician” and
thereby granted a biblically based immunity from financial liability.
Of note, Ramban makes
no reference to the Tosefta (Gittin 3:13) or to a rabbinic decree in establishing
the physician’s immunity from payment. Instead Ramban
quotes Tosefta (Bava
Kamma 6:6)
which itself makes no mention of a rabbinic decree and is apparently understood
by Ramban to argue with Tosefta
(Gittin 3:13)
and to view the monetary dispensation as biblical in nature. It is upon Tosefta Bava
Kamma that Ramban, and in his wake Tur and Shulchan
Aruch, base
their legal positions.
According to Ramban,
whom Tur identifies as his source, just as the
“obligation to heaven” for a physician to exile himself does not refer to a
classic hiyyuv galut, so
too, the monetary “obligation to heaven” does not refer to a classic, hiyyuv mamon. Like galut,
payment is symbolic and is a means of achieving self
improvement. Unlike tort litigation, which emphasizes the entitlements
of the damaged party, payment by the physician, in the face of error, is a
matter between the physician and God.
It is presumably for this reason that Tur and Shulchan Aruch codify the laws of medical malpractice, which
superficially resemble cases of torts, in Yoreh De’ah, rather
than in Hoshen Mishpat. Whereas Hoshen
Mishpat addresses
mammona, the financial responsibilities of bailees,
tortfeasors and artisans, Yoreh De’ah deals
with matters of issura, laws defining man’s responsibilities to God. Yoreh De’ah is the
appropriate location to place the laws of medical error if, as I suggest, the
physician’s obligation in such circumstances, is issura,
between the physician and God.
This reading of Ramban
explains his unusual caveat that monies are owed only if the physician is
“aware of having erred.” In classic cases of hiyyuv mamon, awareness
of error would have no bearing on the fundamental monetary obligation. Since in
the case under discussion, however, payment is a form of expiation and self examination, cognizance of error is understandably a
prerequisite. Absent awareness, no self reflection
can take place.
As in the case of galut, the
verse “and He shall cause him to be thoroughly healed” serves a dual purpose
regarding the
physician’s financial responsibilities. On the
one hand it provides a dispensation from a classic monetary obligation, and at
the same time it generates a residual obligation of repentance.
Practical Ramifications
The halachic
framework for analyzing medical error suggested
in this article is distinct from the one utilized by most contemporary scholars
who address this topic. When contrasting two halachic
models, it is common practice to sharpen the
conceptual distinctions between the two by testing a variety of practical
differences that arise when applying each model to real life scenarios.
Several important practical differences arise
between the position of those who understand physician error to be governed by
classic hiyyuvei galut and by a
classic hiyyuv mammon with a
rabbinic dispensation on the one hand and the approach I am proposing.
The first difference relates to the physician
whose patient dies due to a type of error which would, in a non-medical
setting, require galut. According to those who
view the physician as being obligated in actual galut,
were cities of refuge to be operative, the physician would, indeed, have to
flee the blood avenger and remain in exile. If, however, as I suggest, the
physician is exempt from literal galut,
medical error would never engender true galut
even if the laws of the city of refuge were to be reinstated.19
Additionally, according to my suggested reading
of the sources, in cases of monetary payment by the physician, the patient,
although a recipient of the funds, is not a claimant. Payments, which arise as
a result of a biblical obligation to heaven, are paid to the injured party
despite the fact that the monies are not, technically, owed him. According,
however, to those authorities who view physician error as generating an
underlying hiyyuv mammon, the patient
is, fundamentally, a claimant.
Halacha views
the rights of a claimant as distinct from one who is a recipient of funds but
does not enjoy the status of claimant. One such distinction relates to the laws
of tefisa; seizing monies without the
authorization of bet din. Tefisa is
applicable when payment is an obligation ben adam
le-havero (between the tortfeasor and the injured
party)and in cases in which the bet din can not
act on behalf of the injured party. In such circumstances the interested party
may take the law into his own hands. If, in the case of medical error, the
rabbis decreed that monies may not be obtained via court order yet a
fundamental biblical hiyyuv mammon
exists, the patient might enjoy the right of tefisa.
If, however, payment is not statutory but rather ben adam
le-Makom (between man and
God), the patient would have no recourse to
this option. 20
An additional distinction relates to whether
the estate of the physician would pay the patient if the physician died prior to
discharging his financial obligation. If a statutory monetary obligation to the
patient exists, the estate would likely be required to pay the patient. If,
however, as I suggest, payment is made solely as a means of expiation, this
obligation would presumably fall on the physician alone.21
Furthermore, if the physician’s payment is an
ethical imperative, factors other than restitution (e.g. recurrent error vs.
first time error) could potentially play a role in determining the amount paid.
A classic hiyyuv mammon, on the other
hand, would likely leave no room for such considerations.
Finally, the legal status of the physician who
has harmed his patient may depend on whether medical mistakes generate a true hiyyuv mammon. R. Menahem Meiri (BT Bava
Kamma 56a) rules that an individual, who is obligated to pay an injured
party according to the court of heaven, is disqualified as a witness until
payment is made. As Meiri explains “the unpaid monies are a form of theft in
the hands of the tortfeasor.” Meiri’s statement is made in the context of one
who damages the property of another via an indirect action. Certain types of
indirect actions, referred to in halacha
as grama, are not actionable in court but, rather,
generate a heavenly mandated obligation to compensate the injured party.
Meiri’s viewing non-payment, in the case of grama, as a form of theft implies that he
understands that a hiyyuv mammon exists
in the eyes of heaven. Were, however, a case to exist in which the heavenly
mandated payment is symbolic, it appears likely that Meiri would not categorize
the unpaid funds as theft. Thus, in cases of medical error, if the monetary
obligation represents a true hiyyuv
mammon, the
physician would be disqualified as a witness until payment is made.
Alternatively, if, as I suggest, no true hiyyuv
mammon exists
and payment is a symbolic means of achieving self awareness
and expiation, non-payment by the physician would presumably not categorize him
as a thief or disqualify his testimony.
Conclusion
This article has attempted to demonstrate that
according to Ramban, Tur and Shulchan Aruch, a physician enjoys a biblically based
immunity from statutory galut and
monetary payment. His obligation in cases in which he injures or kills his patient,
as a result of error, is a matter between him and God.22
Ramban, in Torat
ha-Adam,
delineates the behavior to which the biblical exoneration from galut and payment applies. Ramban
states, “[the immunity from payment and galut] is
present so long as the physician takes the appropriate precautions called for
in life threatening situations and does not harm the patient through gross
negligence”. If the suggested readings in this article are correct, a physician
who exercises appropriate caution is exempt from statutory culpability
according to Torat ha-Adam, Tur and Shulchan Aruch. When, however, the physician learns that he
has nonetheless erred, he must discharge an ethical obligation to heaven,
having assumed agency for the One in whom all healing lies.
·
1 American Hospital Association, Hospital Statistics, Chicago 1999.
See also NEJM 324:370, 1991.
·
2 Centers for Disease Control and Prevention .Deaths: Final data for
1997. 47(19):27, 1999.
·
3 JAMA 267:2487, 1992
·
4 A partial list of citations includes: R. Mordechai Elon, Hiyuv Nezikin Be-Rofeh She-Hizik (Heb), Torah
She-be-al Peh (5736) pp 70-77, R. Yitzhak Zilberstein, Rofeh
she-ta-ah (Heb), Halacha Ve-refuah (5741) pp 287-294,
R. Yosef Baumel, Be-din Rofeh she-ta-ah (Heb), Emek
Halacha (5749) pp 135-138, R. Zalman Nehemia
Goldberg, Rashlanut Refuit
(Heb), Tehumin 19 (5756) pp 317-322, R. Abraham Abraham, Nishmat Avraham (Heb), Yoreh De’ah Sec.
2, pp 229-232, and Sec. 5, pp 88-92, R. Avraham Steinberg, Rashlanut Refuit (Heb),
Encyclopedia of Medical Halacha,vol 6,pp 255-270, R.
Mordechai Willig, Rofeh She-ta-ah (Heb), in Brakha Le-Avraham (ed. R. Yitzhak Steinberg (5768) pp.
257-266, and R. JD Bleich, Medical Malpractice and Jewish Law, Tradition 39(1),
2005 pp 72-117.
·
5 Bava Kamma 6:6, Bava Kamma 9:3, Gittin
3:13, Makkot (Hashmatot)
2:5
6 BT
Bava Kamma 85a. An additional source relating to physician error is cited by R.
Nissim (Hidushei ha-Ran, BT Sanhedrin 84b) in
relation to the ruling of the amora R. Pappa. R. Pappa did not allow his son to
remove from him a splinter due to the concern that as a result of error his son
would injure him and thereby violate, inadvertently, the capital prohibition of
wounding one’s parent.59
Ran addresses a number of general principles regarding medical
error based on R. Pappa’s position. In this article I analyze the
halacha as codified by Tur and Shulchan Aruch
who base their
rulings on the writings of Ramban in his Torat ha-Adam. Ramban
addresses R. Pappa’s concern but appears to understand that
removal of a splinter is not considered a medical ministration and
is therefore not governed by the principles of medical error. As such, this
source is not addressed in the body of the article.
7 Kol Kitvei ha-Ramban,
ed. R. Chavel. II, 42. In this article, the translations of all Hebrew sources
are my own.
“Medical Malpractice and Jewish Law”, Tradition 39(1), 2005 pp
72-117.
In a letter of correspondence printed in Tradition 40(1), 2007 pp
98-100 I proposed an approach to physician error at variance with that advanced
by R. Bleich. This article is an expansion of the ideas expressed in that
letter and addresses the criticisms leveled against my analysis in R. Bleich’s
published response to my letter in Tradition 40(1), 2007 pp 101-102
See, for example, Or Same’ah, Hilchot Rozeah 5:6, and Birkei Yosef, Yoreh De’ah 336:6
I do not attempt to define the type of error which would, in a
nonmedical setting, obligate galut. The
definition of error, as it applies to galut,
is complex and is beyond the scope of this brief article. It would appear,
however, that physician error would have to meet the same stringent criteria of
error generally required for galut, if
the physician is to be exiled.
Rashi, BT Bava Kamma 85a, s.v. nitna reshut,
explains that since human illness results from a Divine decree,permission
is,indeed, necessary to allow man to intervene in
God’s plan. Ramban, as will be seen, offers an
alternate explication of R. Ishmael’s statement which bears on the issue of
physician culpability in the event he errs in the course of his medical
ministrations.
The manner in which I have translated and structured this source is
in accordance with R. Bleich’s reading of the Tosefta
as explained in his above mentioned article and further clarified in footnote
52 of that same article.
See Encyclopedia of Jewish Medical Ethics (Heb, Second
Edition),
ed. R. Abraham Steinberg, vol 7 pg
274,footnotes 106-108 for references espousing this approach.See
also R. JD Bleich Tradition 40(1), Spring 2007 pg 101
perform a mitzvah. If, however, the physician errs in
implementation of a medical ministration, he, unlike the court messenger,
enjoys a unique, profession specific, dispensation from galut
based on the verse ’verapo yerapeh’.
The manner in which self improvement, in
this context, is to be accomplished is not specified. A form of symbolic galut exists in halachic literature and it is
unclear whether the obligatory repentance of the physician requires symbolic galut or suffices with other forms of expiation. In
any event, according to the approach I am advancing,the
physician would not be obligated to flee to a true city of refuge, even in
historical epochs in which such cities are operative.
As in the case of galut (see footnote
15), Ramban’s position should not be understood to
imply that the physician enjoys financial immunity irrespective of the type of
error he commits. Certain types of mistakes would be of such an egregious
nature that they would be classified as gross negligence. No dispensation would
be available to the physician in such a case. The exact parameters defining
which types of error are to be categorized as gross negligence is a matter of
substantial debate (see R. Bleich’s article, ibid, where a variety of opinions
are cited regarding this matter). Ramban is stating,
however, that so long as the medical mistake is assessed as arising from error,the physician has a biblically based dispensation
from payment.
Rambam (Hilchot Rozeah 8:4) states that in the days of the Messiah,
cities of refuge will again be operable.
For a survey of the halachic opinions regarding tefisa, see Encyclopedia Talmudit,Vol
7, section Dinei Shamayim pp 395-396.
Although a variety of opinions exist regarding the laws of tefisa,
according to most authorities, Ramban is of the
opinion that it does not apply in cases which are non-statutory in nature (see
for example Shakh, Hoshen
Mishpat 28:1, s.v. ve-hayyav).
To the best of my knowledge, the question as to whether adam morish hiyyuv bi-dinai shamayiman li-banav (an obligation to heaven is inherited by the
estate of the deceased) is dealt with minimally in halachic literature.
The one instance in which such a case is discussed relates to an individual who
obtains monies in violation of the laws of usury. In such a case, while the
individual himself must, according to the law of heaven, return the funds,those who inherit the funds do not assume this
responsibility (see for example Rashba Bava Metzia 61b s.v. R. Yohanan. I
am indebted to R. Yaakov Epstein for alerting me to this source). Of note,
however, the BT Bava Kamma 112a explains that a unique Biblical verse
exempts inheritors from returning monies in such a case. This would imply,
perhaps, that in cases other than usury, in which no biblical dispensation
exists for the inheritors, that they do, in fact, assume their father’s
monetary obligation to heaven. I suggest, however, that the inheritors would
assume such an obligation to heaven only when it resulted from a true hiyyuv mammon.
The position advanced in this article is consistent with the
conclusion of R. Judah Ayash,Responsa Shevet Yehuda, Yoreh De’ah 336 (cited by R. Bleich in footnote 13 of his
article). R. Ayash, who, utilizes a line of reasoning different from that
suggested herein, concludes that both galut and
payment are non-statutory according to Ramban and
Shulchan Aruch. Additionally, R. Yitzhak Yaakov
Weiss, Responsa Minhat Yitzhak III, 104 states that Tur and Shulchan Aruch refer to a galut be-dinei shamayim. Prior to
submitting this article for publication, I was pleased to come across the
writings of, the contemporary scholar, R Yaakov Epstein who in his Responsa
Hevel Nahalato, Vol. 5, sec 33 writes that Ramban understands the Biblical verse “verapo
yerapeh” to provide the physician with statutory
immunity from both galut and payment.This
article is predicated on a similar reading of Ramban.