Medical Malpractice

Ask the Rov: Is a doctor halachically liable for malpractice or a mistaken prognosis?

By Rabbi Chaim Hillel Raskin – Rov of Anash in Petach Tikvah

The Torah grants permission for a doctor to heal, and it’s a mitzvah for an expert doctor to do so, as the posuk says, “v’rapo yerapei.”

Although the halacha is that “Adam muad leolam” and a person is always responsible for his actions even without intent to harm, for the sake of improving civilization (tikun haolam), an expert doctor is exempted, so he shouldn’t refrain from treating people.1

Thus, if a licensed doctor inadvertently causes harm that he could have avoided with additional precaution, he is exempt from liability in beis din law, but obligated in order to exonerate himself from heavenly judgment.2 However, if he did his utmost to give the best care, and the harm was beyond his control, he is exempt even in the heavenly court.3

If a doctor prescribes the wrong medicine, he would be responsible for negligence. If he estimated that a certain medicine would work and it ended up not working, he is exempt b’dinei adam.4

Harm resulting from alternative medicine, such as chiropractics or homeopathy, depends on whether that type of medicine is recognized and licensed by the local government or rabbonim in that location.5

Today, when there are legal laws governing medical malpractice, some poskim say that they override the halachic exemption of tikun haolam since the laws obligate everyone for the sake of keeping law and order (“If not for fear of the government…”) which is over and above dina demalchusa dina. Yet, others hold that halachic exemption remains.6

See Sources (open PDF)

From The Weekly Farbrengen by Merkaz Anash

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