BAIS HAVAAD ON Professional Malpractice - Sefira Program Week #3

(PLEASE LEARN THIS FOR A REFUA SHELAMA FOR THE GEDOLIM Rav Elyashiv -Yosef Sholom ben Chaya Musha, Rav Shteinman - Aaron Yehuda Leib ben Gitel Feiga, Rav Weiss - Yitzchak Tuvia ben Rikal, Rav Belsky - NAME ADDDED Chaim Yisroel ben Chana Tzirtel, Rav Yosef - Yaakov Chai ben Margalit Harav Shlomo Leib Ben Miriam - HaRav Shlomo Brevda Harav Yeshaya Yaakov Ben Raizel - HaRav Yeshaya Yaakov Portugal Harav Meshulem Fish Ben Tziril - The Toshe Rebbe Harav Yitzchok Issac Ben Treina - HaRav Isaav Ausband Rav Yerachmiel Shlomo Hakohen ben Raizel. -Rav Yerachmiel Shlomo Rothenberg, rosh yeshiva of Yeshiva of Mountaindale Rav Shaul ben Pasha-Gavaad Zurich, Switzerland and rav of Beis Medrash Agudas Achim for a refuah shleima b’soch kol cholei am Yisrael.)

~ INTRODUCTION ~ Professional Malpractice In American law, rooted in traditional English common law, a professional under a duty to act who fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm, is guilty of the tort of malpractice, and the injured party may bring a claim for damages against the tortfeasor. There is at present a widespread feeling that litigation in general, and medical malpractice litigation in particular, have spiraled out of control. Proponents of tort reform claim that malpractice litigation is enormously wasteful, as it siphons away vast sums of money from productive enterprise; that it encourages a great deal of wasteful defensive medicine which serves no legitimate medical purpose and is performed solely to ward off litigation; that it is a significant factor in the steep rise of health insurance premiums; and that it discourages the entry of practitioners into the field of medicine. One radical proposal of this camp is the complete abolition of the tort framework for malpractice, and its replacement with a public fund for the compensation of victims. Decisions would be made by medical experts, not juries, which frequently award sums that the reformers deem inordinate. Defenders of the current system argue that the threat of dire penalties is a necessary deterrent against carelessness and negligence; that the winners of large awards are generally deserving, suffering victims of egregious mistreatment, not frivolous manipulators of the system; and that the drag on the health care economy due to malpractice costs is quite small relative to its overall size. However one may feel about this debate, it is clear that the Halachah has a very similar conceptual framework to that of the current system; the rubric of hezek is our equivalent of torts, and the sugyos that deal with what secular law calls malpractice are simply discussing special cases of hezek. As we shall see, several basic interrelated factors are relevant to the determination of liability in malpractice scenarios: Fault - is there evidence of the tortfeasor's negligence, or is there reason to presume such on his part? Compensation - has the tortfeasor been paid for his services, or was he working pro bono? Expertise - what level of expertise did the tortfeasor possess? Authorization - was the professional authorized to practice by either a Jewish or civil certifying body? There is actually considerable overlap between these criteria: a highly expert professional may be presumed to have not been at fault, and one who has been paid for his work will be held to a higher standard than one who has not. Our analysis will begin with several Talmudic discussions of the topic, concerning professionals in general, judges, and doctors; we will then proceed with the formulations of the classic poskim; and we will conclude with several contemporary treatments of medical malpractice scenarios.[1] [1] Note that our discussion focuses on the Halachah's internal treatment of malpractice, and we do not enter into the questions raised by the intersection of Halachah, secular law and custom, or by the prevailing system of malpractice insurance. See, e.g., R. Mendel Shafran's letter, printed in Umka De'Dina (Geneiva, etc.) pp. 66-67 and R. Yosef Fleischman's discussion on pp. 57-58 of that volume for discussion of these points. Clear Maare Mekomos with a running English explanation