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Published online by Cambridge University Press: 12 February 2016
Medical jurisprudence and particularly malpractice by the physician have becomes the subject of increasing concern and scholarly interest. The approach of other civilizations to the physician's liability has been previously explored. This inquiry will seek a comprehensive understanding of the liability imposed upon the physician in Jewish law.
First, to provide the proper context, the general status and role of medicine and the physician in Jewish law will be briefly considered. Then, the situations in which a physician is obligated to treat or to refrain from treating patients will be explored. Assuming the physician has agreed to treat the patient, the various standards of conduct—due care, negligence, gross negligence, battery, unauthorized practice—and the liability that attaches in each will be outlined. Then, the special liability of a physician in cases of a patient's death will be analyzed. Thereafter, the effect of a patient's waiver of any claim for damages against the doctor will be considered. Finally, the overall approach adopted by Jewish law to the problem of physician's liability will be evaluated.
1 See e.g., Comment, , “Standard of Care for Medical Practitioners” (1971) 60 Ky. L.J. 209Google Scholar; Note, “Medical Malpractice Threat: A Study of Defensive Medicine” (1971) Duke L.J. 939Google Scholar; Dombroff, , “Medical Malpractice in Connecticut” (1973) 47 Conn. B.J. 40Google Scholar.
2 For the physician's liability in Roman law, see Hu, , Etude juridique sur la responsabilité du médecin dans le droit romain (1880) 33–80Google Scholar; for the liability for negligent operations in Babylonian law, see Code of Hammurabi 218–220; Driver, & Miles, , The Babylonian Laws, 417–418Google Scholar.
3 Previous works on the physician's liability in Jewish law include: Elon, , “Jewish Law and Modern Medicine” (1969) 4 Is. L.R. 467, 468Google Scholar; Jakobovits, I., Jewish Medical Ethics (New York, 3rd ed., 1967) 217–22Google Scholar. Jewish law has been an organic jurisprudence developing from the Bible through the Talmud to the Medieval Codes to the Responsa literature until this very day. See e.g., Kirsch, , “Conflict Resolution and the Legal Culture: A Study of the Rabbinical Court” (1971) 9 Osgoode Hall L.J. 335Google Scholar.
4 Psalms, CIII:15.
5 Midrash Temurah II; Midrash Samuel IV.
6 Only Nahmanides, , Torath Haadam, Shaar Hasakanah; Tur, Yoreh Deah 336Google Scholar; Levush, Yoreh Deah 336, 1; refer to the conflict of God striking and man healing. See also, Maimonides, , Commentary on the Mishnah, Pesachim IVGoogle Scholar, at end.
7 Exodus XXI, 19Google Scholar.
8 Babylonian Talmud, Baba Kamma 85a. The interpretation is based on the repetition of the word “heal”.
9 Tur, Yoreh Deah, 336. See also, Nahmanides, Torath Haadam, Shaar Hasakanah.
10 Aruch Hashulchan, Yoreh Deah, 336, 1. Shulchan Aruch, Yoreh Deah 336 is silent on the issue of why a verse was necessary to permit physicians to heal.
11 Yad Avraham on Shulchan Aruch, Yoreh Deah, 336, 1. Rashi on Babylonian Talmud, Baba Kamma 85a explains a verse was needed to permit the doctor to heal lest it be said that God smites and man heals.
12 Nahmanides, , Torath Haadam, Shaar Hasakanah; Tur, Yoreh Deah, 336Google Scholar; Shulchan Aruch, Yoreh Deah, 336, 1; Levush, Yoreh Deah, 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 1.
13 Deuteronomy XXII, 2Google Scholar.
14 Maimonides, , Commentary on the Mishnah, Nedarim IV, 4Google Scholar. See Temimah, Torah, Exodus, XXI: 19Google Scholar; Deuteronomy, XXII: 2Google Scholar.
15 Healing is still considered miraculous even when accomplished through a doctor: “Greater is the miracle that occurs when a sick person escapes from perilous disease than that which happened when Hanniah, Michael and Azariah escaped from the fiery furnace”. Babylonian Talmud, Nedarim 41a.
16 Turai Zahav on Shulchan Aruch, Yoreh Deah, 336, 1; also in accord is Aruch Hashulchan, Yoreh Deah, 336, 1.
17 See e.g., Ezra, Ibn on Exodus XI: 19Google Scholar who derived support from the verse “Even in sickness he did not seek God, rather medicines”. II Chronicles XVI: 12Google Scholar; and from the verse, “For He maketh sore, and bindeth up; He woundeth, and His hands make whole”. Job V: 18Google Scholar. See also Upelethi, Kerethi, Yoreh Deah, 188Google Scholar, 5 who claims that the reference in the Mishnah infra n. 27, “To hell with the best of physicians”, refers to doctors who cured internal diseases, since the chance of displaying improper care and allotting insufficient time is greater than in cases of external injury.
18 See Yoseph, Birkei, Yoreh Deah 336Google Scholar, 2. But see, Nachmanides, , Leviticus XXVI: 11Google Scholar for the minority opinion of one, that although the physician is allowed to practise medicine, ideally the sick should not seek his aid but should rely on God.
19 Babylonian Talmud, Sanhedrin 17b.
20 Aruch Hashulchan, Yoreh Deah, 336, 1.
21 See e.g., Rashi, on Pesachim 56aGoogle Scholar and Rashi, on Berachoth 10bGoogle Scholar explaining that a book of medicine was hidden by Hezkiah precisely because the people were ignoring the religious implications and significance of illness.
22 Tur, Yoreh Deah, 336; Shulchan Aruch, Yoreh Deah, 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 1 adds that it is praiseworthy for all those who are anxious to help in saving lives by practising medicine.
23 Tur, Yoreh Deah 336; Shulchan Aruch, Yoreh Deah 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 2.
24 Tur, Yoreh Deah 336.
25 Id.
26 See supra n. 23.
27 Only the Tur, Yoreh Deah 336 inserts the reference to hell: “If he didn't engage in it at all, it is spilling blood and he will certainly go to hell”. The Beth Joseph on Tur, Yoreh Deah, 336 explains the variants to the text both of which he says are correct. One, if someone practices medicine where there is someone more knowledgeable. Two, if someone does not engage in healing where there is no one more knowledgeable. A reference to physicians being destined for hell is found as early as the Mishnah, Kiddushin IV, 4Google Scholar: To hell with the best of physicians. See also Soferim 41a.
28 See e.g., Babylonian Talmud, Yoma 84b and Maimonides, Commentary on the Mishnah ad. loc., “The law is like the sages for only medicinal cures can supersede religious obligations and R. Matthia's cure was a spiritual remedy”.
29 Zohar, i, 111b; Shulchan Aruch, Yoreh Deah, 116, 5; Cf. Babylonian Talmud, Taanith 18b.
30 Tur, Yoreh Deah, 336; Levush, Yoreh Deah, 336, 1.
31 Aruch Hashulchan, Yoreh Deah, 336, 2.
32 Id.
33 Babylonian Talmud, Baba Kamma 52a.
34 In assessing damages five items of recovery were considered: 1) depreciation, 2) pain, 3) medical treatment, 4) loss of time, 5) humiliation or degradation. See generally, Albeck, , “Damages” Encyclopaedia Judaica (1971) vol. 5, p. 1233Google Scholar, and “Torts” Encyclopaedia Judaica (1971) vol. 15, p. 1273Google Scholar; Comment, , “Talmudic and American Tort Liability—A Comparative Analysis” (1968) 10 Ariz. L. R. 473, 479–82Google Scholar.
35 Maimonides, , Yad, Hovel u-Mazik I, 4Google Scholar.
36 Tosefta, Gittin III, 13Google Scholar: Tosefta, Baba Kamma IX, 3Google Scholar; Tur, Yoreh Deah, 336; Shulchan Aruch, Yoreh Deah 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 2.
37 Tosefta, Baba Kamma IX, 3Google Scholar.
38 Tosefta, Gittin III, 13Google Scholar.
39 Minhat Bikurim on Tosefta, Gittin III, 13Google Scholar.
40 Aruch Hashulchan, Yoreh Deah, 336, 1 explains that the Torah gave permission to the physician to heal lest he say, “The science of medicine is mere guess work; therefore maybe a mistake will be made”.
41 Literally, “exempt according to the law of man and his case is remitted to Heaven”. Tosefta, Baba Kamma VI, 6Google Scholar. Literally, “exempt according to the law of man but guilty according to the law of Heaven”. Tur, Yoreh Deah, 336; Shulchan Aruch, Yoreh Deah 336, 1; Aruch Hashulchan, Yoreh Deah 336, 2.
42 If a physician wanted to acquit himself according to the law of God, he had to pay the patient for the damages. Nahmanides, , Torath Haadam, Shaar Hasakanah; Beth Joseph on Tur, Yoreh Deah 336Google Scholar.
43 The divine means for retribution were detailed by the Talmudic sages: “He who would have been sentenced to stoning, either falls down from the roof or a wild beast treads him down. He who would have been sentenced to burning, either falls into a fire or a serpent bites him. He who would have been sentenced to decapitation, is either delivered to the government or robbers come upon him. He who would have been sentenced to strangulation, is either drowned in the river or dies from suffocation”. (Babylonian Talmud, Ketuboth 30b.)
44 Tosefta, Baba Kamma IX, 3Google Scholar.
45 Duran, S., Responsa Tashbetz III, 82 (1361–1444)Google Scholar.
46 Id.
47 Id.
48 Siphtai Kohen on Shulchan Aruch, Yoreh Deah 336. See generally, Maimonides, , Yad, Hovel u-Mazik V, 1Google Scholar; Shulchan Aruch, Hoshen Mishpat 420, 1.
49 Tosafoth on Babylonian Talmud, Ketuboth 32a.
50 Fines for assaults which were insulting, yet caused no substantial injury were set subject to a court's increase or decrease in light of the circumstances. Mishnah, Baba Kamma VIII, 6Google Scholar; Maimonides, , Yad, Hovel u-Mazik III, 8–11Google Scholar; Shulchan Aruch, Hoshen Mishpat 420, 41–43.
51 Babylonian Talmud, Ketuboth 32b; Maimonides, , Yad, Hovel u-Mazik V, 3Google Scholar; Shulchan Aruch, Hoshen Mishpat 420, 2.
52 Tosefta, Baba Kamma IX, 3Google Scholar; Tosefta, Gittin III, 13Google Scholar; Tosefta, Makkoth II, 5Google Scholar. The Tosefta refers only to a “doctor-surgeon” while the medieval codes apply the standard to all doctors. The statement in the Tosefta, Makkoth supra, regarding permission being granted to one cutting out a foetus may mean that there was a system of “licensing” particular specialists, or that the permission was sought by doctors on a case by case basis.
53 The need for this quality control may have been caused at first by the lack of any other institutional checks on the medical profession. Apparently, Roger II, King of the Two Sicilies, issued the first legal enactment regulating medical practice in Europe in 1140: “Whosoever will henceforth practice medicine let him present himself to our officials and judges to be examined by them; but if he presume of his own temerity, let him be imprisoned and all his goods be sold by auction. The object of this is to prevent the subjects of our kingdom incurring peril through the ignorance of physicians”. Withington, E., Medical History from the Earliest Times (London, 1894) 233Google Scholar. However, even with the advent of medical diplomas and government licensing of physicians, the regulation by the Beth Din may have been necessary for the Jews who were effectively excluded from medical schools and official licensing, Friedenwald, H., The Jews and Medicine (Baltimore, 1944) 254–55, 264–65Google Scholar. See generally, Roth, , “The Qualification of Jewish Physicians in the Middle Ages” (1953) 28 Speculum 834CrossRefGoogle Scholar.
54 Tur, Yoreh Deah, 336.
55 Aruch Hashulchan, Yoreh Deah, 336, 2.
56 Tur, Yoreh Deah, 336; Shulchan Aruch, Yoreh Deah, 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 2. Tzaphnath Paneah, Baba Kamma 85a argues that permission from Beth Din was not necessary in life saving situations.
57 Tur, Yoreh Deah, 336; Shulchan Aruch, Yoreh Deah 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 2.
58 See infra nn. 70–74 and accompanying text.
59 Tosefta, Makkoth II, 5Google Scholar. Moses assigned six cities to which “may flee anyone who killed someone unintentionally”, Numbers, XXXV; 13Google Scholar; Deuteronomy, XIX: 9Google Scholar. These cities of refuge together with another 42 Levitical cities, Makkoth 13a, provided an asylum in which the manslayer would be immune from prosecution by the blood avenger, Numbers, XXXV: 12Google Scholar.
60 Tur, Yoreh Deah 336.
61 Aruch Hashulchan, Yoreh Deah 336, 2.
62 Although some scholars maintain that the cities of refuge were re-established during the reigns of John Hyrcanus and Alexander Jannaeus, there is no record of their persistence after the days of Pompey. Baron, S., A Social and Religious History of the Jews (2d. ed., 1952) vol. 1, p. 276Google Scholar.
63 Maimonides, , Yad, Isurai Biah XIII, 5Google Scholar.
64 Id.
65 Tur, Yoreh Deah, 336; Shulchan Aruch, Yoreh Deah, 336, 1; Aruch Hashulchan, Yoreh Deah, 336, 2.
66 If the physician's negligence did not reasonably cause the patient's death, then there would be no exile imposed “because is it worse than a father hitting his child and a teacher hitting his student, who [father and teacher] are exempt from exile?” Aruch Hashulchan, Yoreh Deah, 336, 2.
67 Solomon Luria quoted by Bach on Tur, Yoreh Deah, 336.
68 Perisha on Tur, Yoreh Deah, 336.
69 See supra n. 45 and accompanying text.
70 See supra n. 37 and accompanying text.
71 Yad Avraham on Shulchan Aruch, Yoreh Deah 336, 1.
72 See supra n. 62.
73 Indeed this balance is conveyed by the Tur, Yoreh Deah, 336: “It is derived that the physician was given permission to heal so that he should not say, why do I need this trouble, maybe I will err with the result that I am an unintentional killer”. See also the Siphtai Kohen on Shulchan Aruch, Yoreh Deah 336, when he writes as his only commentary to the law that accidental deaths necessitate exile: “Nevertheless a person does not have to restrain himself from practicing medicine because of the possibility of error, rather it is an obligation to practice medicine”.
74 Jewish law has established that a person cannot convey or transfer title to something not yet in existence, “davar shelo ba la'olam” e.g., I hereby sell you what I will inherit from my father. Tosefta, Nedarim VI, 7Google Scholar. However, if the person employs language of obligation, e.g., I obligate myself to so and so for such and such, the obligation would be enforceable. Tur, Hoshen Mishpat 60; Shulchan Aruch, Hoshen Mishpat, 60, 6, since the obligation rests on the person who is in existence, S'ma, Hoshen Mishpat, 60, 6, 18. Therefore, waivers of liability would not be unenforceable on the theory that the damages are not yet in existence since consents and waivers are couched in terms of obligations upon the person who is in existence. See Elon, , “Contract” Encyclopaedia Judaica (1971) vol. 5, p. 923, 926Google Scholar; Elon, , “Law of Obligations” Encyclopaedia Judaica (1971) vol. 12, p. 1310Google Scholar.
75 Babylonian Talmud, Baba Kamma 93a.
76 Mishnah, Baba Kamma VIII, 7Google Scholar.
77 The potential damages for which waiver will be ineffective are not limited to injury to principal limbs, but any bodily harm. This is evident from the Mishnah's contrast of principal limbs to tearing garments and breaking vessels for which waiver of liability could exempt the offender. Moreover, the discussions in the Gemara, supra n. 75, indicate the distinction is between any bodily damage and damage to chattels.