"From Machon Puah"

Is One Allowed to Sue a Doctor?

Is One Allowed to Sue a Doctor?

Most people are grateful to the medical professionals who treat them. They feel that their doctors do all they can to provide the best and most appropriate treatment, even if they are not always successful.
However, there are cases in which one may feel that the doctor was in error and performed an unnecessary treatment, or made a wrong judgment. These are the cases that usually fill the media and make for fascinating reading, but they are the minority.
Couples who feel that a doctor made a mistake in treatment often ask us whether they should take him to court and sue him for malpractice. Is there any halachic objection to suing a medical professional?
This issue is a complex one, one that often gives rise to serious emotional reactions. Rabbi Shlomo Dichovsky, a former Dayan and now the administrator of the Israeli Beit Din, addressed this question at the recent Puah Conference held in Jerusalem.  This event, held annually, is the highlight of Puah’s educational activities and is attended by close to 2000 professionals and laymen.
Rabbi Dichovsky began by saying that the recent trend towards over-litigation against medical professionals has increased the cost of medical treatment. Because they are afraid of being brought to court, doctors may order excessive tests in order to be sure they’ve thought of every possible problem, tests that cost either the patient or the system lots of money. Doctors are also forced to take out expensive malpractice insurance policies, so that they are covered in case of a lawsuit; these added costs are passed on to the patient.
The Shulchan Aruch (Yoreh Deah 336:1) states, “...Someone should not practice medicine unless he [or she] is an expert and in that place no one is a greater expert than he, for if not, then he spills blood. And if he practices medicines without the permission of the Beit Din he has to pay damages even if he is expert. If he practices medicine with the permission of the Beit Din and made a mistake and caused damage he is exempt from civil law but is held responsible by the heavenly court. If he killed someone [while practicing medicine] and he realizes that he made a mistake he is sent to a city of refuge [i.e., if he killed someone unintentionally, he is guilty of manslaughter].”
According to the Shulchan Aruch, then, in order to be a practicing physician one needs both to be an expert and to have permission from the Beit Din.
How do we define these concepts in terms of modern-day medicine? Who is considered an ‘expert’? What is the contemporary equivalent of ‘permission of the Beit Din’?
We will discuss these questions in next week’s column.

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