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Doctors On Trial: A Comparison of American and Jewish Legal Approaches to Medical Malpractice

Published online by Cambridge University Press:  24 February 2021

Joshua Fruchter
Joshua Fruchter*
Affiliation:
Yeshiva UniversityNew York University School of Law
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Abstract

The recent and continual call for tort reform has many scholars proposing alternatives to current U.S. medical malpractice law. Most commentators limit their discussions to variations of the two Anglo Saxon theories of liability — negligence and strict liability. Little has been written examining the legal treatment of medical malpractice in other cultures. This article compares and contrasts Jewish and American medical malpractice law, examining both the contemporary and ancient sources of the law.

Type
Articles
Information
American Journal of Law & Medicine , Volume 19 , Issue 4 , 1993 , pp. 453 - 495
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1993

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Footnotes

The author currently works as a bankruptcy associate at the firm of Kaye, Scholer, Fierman, Hays & Handler in New York.

References

1 See, e.g., Aimee Lee Ball, The Baby Bust, New York, Jan. 25, 1993, at 28-35; Steven E. Pegalis & Harvey F. Wachsman, American Law of Medical Malpractice (1980 & Supp. 1991) (summarizing important issues in the ongoing medical malpractice debate).

2 of every dollar awarded, only 30% to 40% is received by injured patients in compensation for injuries; 66 cents out of every dollar recovered by plaintiffs is consumed by attorneys’ and expert witness fees, and court costs. Sieradzki, David L., Throwing Out the Baby With the Bathwater: Reform in the System for Compensating Obstetric Accidents, 7 Yale L. & Pol'y Rev. 538, 556 (1989)Google Scholar.

3 Id. (average time from date of infant's injury to compensation is three years).

4 Id. at 555 (only one out of ten parents whose infants suffer injuries due to physician negligence bring a claim).

5 See, e.g.. Ball, supra note 1, at 30.

6 See, e.g., Sieradzki, supra note 2, at 538 n.2 (obstetricians’ malpractice insurance premiums have increased 171%from 1982 to 1986 compared with a 14% increase in the Consumer Price Index).

7 See, e.g., Sieradzki, supra note 2, at 554-55 (awards to injured newborns are erratic, unpredictable and inconsistent since lay juries, lacking expertise in deciding malpractice claims, often issue verdicts based on emotion rather than legal rules).

8 The word halachic means Jewish legal, and is the adjective of the Hebrew word halacha which term is synonymous with Jewish law. Translated as the path, the halacha encompasses all aspects of Jewish law from the commercial to the ritual.

9 At this juncture, a brief primer on the structure and sources of Jewish law is appropriate. First, Jewish law is divided into two major components: the Written Law and the Oral Law. Isaac Herzog, 1 Main Institutions of Jewish Law 2 (2d. ed. 1980). The Written Law comprises the Bible which Jewish law believes reflects the Divine will as communicated to Moses. Id. The primary component of the Oral, or Rabbinic, Law is the Babylonian Talmud — a 64 volume work compiled between 200 and 500 C.E., which records the debates and discussions of early authorities on countless legal and ethical issues. Id. at 1; see also Rabbi Adin Steinsaltz, The Talmud - A Reference Guide 1-9 (Israel Berman trans. & ed. 1989). Divided into “tractates,” the vast legal material contained in the Talmud elucidates and expands on the Bible's verses whose brevity often demands interpretation. Id. at 1. Originally, the Talmudic material was passed down orally from scholar to scholar in each generation (hence the appellation “Oral Law“) until persecution and dispersion compelled a written version.

Second, a word on the sources of Jewish law. In every legal system there exist two sources of law — legal and historical. John W. Salmond, Salmond on Jurisprudence 133 (12th ed. 1957). A legal source of law is any process that is recognized by a given legal system as an authoritative wellspring of rules binding on the followers of such legal system. Id. at 109. Thus, in American law, judicial precedent and legislation, as respectively recorded in the case reports and statutes, are legal sources of law because they are accepted within the American legal system as authoritative sources of the rules of conduct that bind American citizens and govern everyday affairs within America's borders. Conversely, historical sources of the law are sources that contribute to the development of the law by persuasion, but which are not accepted as authoritative. Id. at 110. Historical sources of law can only become authoritative through the gateway of recognized legal sources of law that incorporate their content and reasoning. Id. Thus, for example, expert opinion, as expressed by prominent professors in law review articles, is an historical source of Ameri can law that may become a legal source if adopted by judges in their decisions, or legislatures in their enactments. See, e.g., In re L.D. Patella Constr. Corp., 114 B.R. 53, 57 (Bankr. D.N J . 1990) (adopting Professor Vern Countryman's definition of the bankruptcy term “executory contract” as first proposed in a Minnesota Law Review article). Salmond also identifies a third source of law — the literary sources — but these are merely the authoritative writings, such as case reporters and statute books, that record the rules and laws produced by accepted legal sources. Salmond, supra, at 138 n. (c).

In Jewish law, unlike American law, expert opinion is a legal source of law. Herzog supra, at 16, 19-20; Menahem Elon, 1 Ha'mishpat Ha'ivri 218-22 (1978). Whether recorded in the literary form of (i) theoretical commentary on the Talmud or other authoritative text, (ii) responsa (decisions rendered by a competent authority in response to a specific inquiry), (iii) novellae (works containing original and creative insights by a rabbinic scholar), or (iv) codificatory literature (works assembling the accepted rules of law in structured form according to preconceived categories), the views of prominent rabbinic scholars may be relied upon as authoritative sources of law. Elon, supra, at 218. However, not every rabbi is qualified to establish new, binding legal rules. Only the most exceptional rabbinic leaders of a generation — the gedolim — who have mastered, often by heart, the entire corpus of Jewish law ranging from the Talmud to the codes can be relied on to resolve the most pressing halachic issues of the day, and thus create new law. The rabbis whose opinions are cited in this article were and are all, without fail, exceptional scholars in halacha, and often secular fields, such as medicine, as well.

Additionally, while judicial precedent is a distinguishing feature of American law, Salmond, supra, at 162, the same is not entirely true with respect to Jewish law. Generally speaking, a competent authority is not bound by the decisions or opinions of another authority. Herzog, supra, at 13. Nevertheless, a definite trend developed whereby the legal decisions of earlier generations acquired a sacredness that precluded their being overruled. Id. at 16. Thus, for example, at the close of the Talmudic period at about 500 C.E. all unchallenged opinions or decisions recorded in the Talmud became binding on future authorities. Id. at 17. In other specific situations Jewish law may proscribe a judge or court from forming an independent opinion on a particular point, see, e.g., infra note 236 and accompanying text. A complete exposition of such judicial rules, however, is beyond the scope of this paper.

10 See, e.g., Fletcher v. Rylands, L.R. 1 Ex. 265 (1866) (Blackburn, J.) (choosing strict liability over negligence as the rule of law in a mining disaster case); Brown v. Collins, 53 N.H. 442 (1873) (applying negligence and repudiating strict liability in a “runaway horse” accident). For abridged versions of Fletcher and Brown see, Richard A. Epstein, Cases and Materials on Torts 88-90, 97-99 (5th ed. 1990).

11 Gregory, Charles O., Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359, 362-65 (1951)Google Scholar; see also Wigmore, John H., Responsibility for Tortious Acts: Its History, 7 Harv. L. Rev. 315, 316 (1894)Google Scholar (stating that early common law recognized strict liability in tort for harm caused to a person); contra Schwartz, Gary, Tort Law and the Economy in Nineteenth Century America: A Reinterpretation, 90 Yale L.J. 1717, 1719-20, 1722-23 (1981)Google Scholar (arguing that both English and American precedent are inconclusive on a strict liability principle prior to the industrial era).

12 Oliver Wendell Holmes, The Common Law, at 82 (1881); see also Losee v. Buchanan, 51 N.Y. 476, 486 (1873) (repudiating strict liability); Brown v. Collins, 53 N.H. 442, 446 (1873) (same).

13 Holmes, supra note 12, at 82; see also Fletcher v. Rylands, L.R. 1 Ex. 265 (1866).

14 Holmes, supra note 12, at 84.

15 Gregory, supra note 11, at 362.

16 60 Mass. (6 Cush.) 292 (1850); see also Gregory, supra note 11, at 365. For an abridged version of the text of Brown v. Kendall, see Epstein, supra note 10, at 81-84.

17 Gregory, supra note 11, at 366.

18 Gregory, supra note 11, at 368; Morton J. Horwitz, the Transformation of American Law 1780-1860 (1977); contra Schwartz, supra note 11, at 1720. For language in case law supporting Professor Gregory's view, see Losee v. Buchanan, 51 N.Y. 476, 484-85 (1873).

19 Gregory, supra note 11, at 368.

20 Holmes, supra note 12, at 90-95.

21 Holmes, supra note 12, at 92-93. This author agrees that it appears unjust to hold a defendant liable for unintended and unforeseeable consequences. However, it is undeniable that the defendant is the one who chose to act, and thus, it is difficult to see why it is any more fair or just to make the passive victim bear the loss of his misfortune where the defendant's fault cannot be proved. Since the moral dilemma of where to fix the loss reaches an impasse, this author believes that if anything overtly motivated the shift toward negligence it was more likely the practical expedient of subsidizing industry.

22 Holmes, supra note 12, at 95.

23 See Mishnah, Tractate, Baba Kamma 2:6. The Mishnah is an ancient, tersely written, legal text which predates the Talmud, and upon which the Talmud comments extensively. Baba Kamma is the name of a tractate in the Talmud dealing with tort law. Hereinafter, all references to the Talmud will be preceded by the appellation “Tractate.“

24 Holmes, supra note 12, at 82.

25 The Tosafot were a group of 12th and 13th century French and German scholars who wrote a highly analytical commentary printed in the outer margins of the Talmud.

26 Ramban was the acronym of Rabbi Moses ben Nachman, also known as Nahmanides (1194- 1270, Spain).

27 See, e.g.. Tractate, Baba Kamma 27b (s.v. u'Shmuel amar); Tractate, Baba Metzia 82b (s.v. v'savar).

28 Id. For a more extensive discussion of mental states in Jewish tort law, see infra notes 133- 35. Also note that o'ness is pronounced “O” as in Joe, “ness” as in Elliot.

29 The term o'ness gamur is probably synonymous with the American legal concept of “unavoidable accident.” See W. Page Keeton et al., Prosser & Keeton on Torts (5th ed. 1984). The term “unavoidable accident,” which includes the phrase acts of G-d, describes unforeseen and unexpected mishaps occurring without fault or carelessness by either party to the event. See, e.g., Zayre of Georgia, Inc. v. Haynes, 213 S.E.2d 163, 165 (Ga. App. 1975); Hyatt Cheek Builders- Eng'rs v. Board of Regents of Univ. of Tex. Sys., 607 S.W.2d 258, 266 (Tex. App. 1980); Anderton v. Montgomery, 607 P.2d 834, 838 (Utah 1980).

30 Literally, the term o‘ness k‘ein aveidah means “accident akin to loss” and the term o‘ness k‘ein gneivah translates as “accident akin to theft.” The terms derive from the laws of shomrim (baileebailor law), where the liability of a bailee for theft or loss is discussed. Mishnah, Tractate, Baba Metzia 7:8. Since the loss of an object involves no third parties or other external forces beyond the bailee's control, it is an event more likely attributed to some fault or carelessness of the bailee. Tractate, Baba Metzia 94b. Theft, on the other hand, involving interference by a third party, is an event more strongly attributable to external factors beyond the bailee's control. Id. Thus o'ness k'ein gneivah refers to accidents where the tortfeasor's fault is low, and o'ness k'ein aveidah to accidents where the tortfeasor's culpability is higher though not reaching the level of negligence.

31 Tractate, Baba Kamma 99b.

32 The Talmud also rules that a paid slaughterer would be liable for damage caused under the same circumstances.

The Imrei Binah states that it appears likely that an unpaid professional would still be morally obligated to pay his customer. Imrei Binah, Dinei Dayanim, end of no.48.

33 Tractate, Baba Kamma 99b, Tractate, Tosafot (S.V. ayma mipnei) (citing TOSAFOT, Baba Kamma 27b (s.v. u'Shmuel amar)). As noted, Tosafot conclude that the liability discussed in Baba Kamma 99b is for damage under accidental circumstances. If damage, however, results primarily from a slaughterer's negligence then, according to all authorities, he or any other professional, would be liable to the customer whether paid or unpaid. Blau, Pitchei Choshen, Hilchot, ch. 13, at 319.

If, as discussed in the Talmud, the damage caused by the slaughterer is o‘ness k‘ein gneivah, the question arises as to why the paid slaughterer should be held liable. See supra note 32. The circumstances should be deemed no less accidental by the paid slaughterer than by the unpaid slaughterer. Rabbi Blau explains that, under the laws of shomrim (bailee-bailor law), liability is still imposed on the paid slaughterer for cases of o‘ness and o‘ness k‘ein gneivah because of his status as a paid bailee. A paid bailee is liable for damage to bailed goods arising from o‘ness k‘ein gneivah, and is only exempt for o'ness gamur (i.e., unavoidable accident) such as an act of G-d. However, the unpaid slaughterer retains his exemption under the laws of shomrim, since an unpaid bailee is exempt from gneivah, and only liable for negligent loss. R. Blau, Pitchei Choshen, Hilchot Sechirut, ch.13, at 320 [hereinafter Blau, Sechirut].

34 See Shittah M'Kubbetzet, Tractate, Baba Metzia 82b (s.v. v'ata b'shemo). The Shittah M'Kubbetzet is the name of a book collecting the legal opinions of numerous rabbinical authorities who lived during the medieval ages.

35 See supra note 31.

36 R. Bar Ilan, Chiyuv Nezikin B'rofeh S'hizik, 28 Torah Sh'beal Peh 71.

37 Blau, Sechirut, supra note 33, at 322.

38 Presumably, the paid professional is even less likely to err in his work. If so, why is he liable? Similarly, if it is true, as the Ramban argues, that the unpaid professional loses the shem mazik, then the question arises as to why the paid professional should not also lose the shem mazik!

Rabbi Blau suggests that, according to Ramban, the paid professional retains a shem mazik because,as a result of receiving a fee, he should have exercised greater care. True, the paid professional is unlikely to err, probably even less frequently than someone working gratis. Still, because he is getting paid, the compensated professional should not complain if, when damage occurs, the law presumes that he was not as careful as he should have been. Blau, Sechirut, supra note 33, at 322. Presumably, Rabbi Bar Ilan would agree.

39 See supra note 34 and accompanying text. Rabbi Mordechai Willig, a prominent rabbi at Yeshiva University in New York, presented his thesis at a lecture to rabbinical students. (Spring 1992) (Tape available from Yeshiva University).

40 In other words, what Rabbi Willig appears to be suggesting is that the unpaid professional is still technically considered a mazik, but that the plaintiff's assumption of the risk serves as a defense to foreclose liability.

As to the liability of the paid professional, Rabbi Willig would presumably reply that when a customer pays a fee he can no longer be said to assume the risk. The payment of a fee would pass the risk of loss onto the professional. With the assumption of risk defense gone, the paid professional's status as mazik restores liability.

41 In contrast, the normal tort plaintiff assumes no explicit risk. He did not ask the tortfeasor, a complete stranger, to get involved with his property. As such, according to Ramban, strict liability prevails in the normal tort context. Cf. Losee v. Buchanan, 51 N.Y. 476, 484-85 (1873) (as a member of civilized society each individual takes risks as to his property and person).

42 Rabbi Bar Ilan appears to agree with the conceptual understanding just proposed. See Ilan, supra note 36, at 73. Rabbi Bar Ilan traces Tosafot's idea of a fault-standard to a passage in Tractate, Baba Kamma 4a where the Talmud expresses the notion that “man must guard over his actions” (adam shemirat gufo alav). Rabbi Bar Ilan claims that Tosafot understood this concept as the fundamental rationale underlying tort law, namely, that man should be induced to arrange his affairs in a way that minimizes the risk of harm. If he behaves negligently, the law punishes him, a reminder to act responsibly in the future. However, since man cannot anticipate and “guard against” unforeseen, unknowable events, it is illogical, according to Tosafot, to hold him responsible for them.

43 A fourth possibility for recovery, albeit uncommon in American law, is contractual liability. See Pegalis & Wachsman, supra note 1, § 2:4, at 48.

44 See, e.g., Clark v. Gibbons, 426 P.2d 525, 541-42 (Cal. 1967) (Traynor, J. concurring and dissenting). As will be shown, halacha exhibited the same concern. See infra notes 193-94 and accompanying text.

45 A medical malpractice suit is essentially a specialized negligence action. Pegalis & Wachsman, supra note 1, § 2:1, at 40.

A third theory of recovery available to injured patients is breach of contract. The difference between an action for negligence or medical malpractice and breach of contract is that a negligence action alleges a tort, and must therefore prove failure to fulfill a duty (e.g., to exercise ordinary care or proper medical skill), whereas a breach of contract theory alleges failure to fulfill an agreement. See, e.g., Colvin v. Smith, 92 N.Y.S.2d 794 (1949). In negligence actions, the source of the duty is the law; in contract the source is the parties’ agreement. The two types of actions are entirely independent of each other, and may be commenced separately. Id.

To prevail on a breach of contract claim, the patient must prove the existence of a promise and a breach of such promise by the physician. Traditionally, most courts have been wary, for a variety of reasons, of allowing the breach of contract theory to develop into a broad basis of physician liability. As one court summarized the prevailing sentiment:

It is not hard to see why the courts should be unenthusiastic or skeptical about the contract theory. Considering the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients, doctors can seldom, in good faith, promise specific results. Therefore, it is unlikely that physicians of even average integrity will in fact make such promises. Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event and testify in that sense to sympathetic juries.

Sullivan v. O'Connor, 296 N.E.2d 183, 186 (Mass. 1973); see also Scarzella v. Saxon, 436 A.2d 358, 362 (D.C. Ct. App. 1981) (finding from the totality of the circumstances that the physician had warranted the safety of an operation); Cerafici v. Goffen, 407 N.E.2d 633, 635 (Ill. Ct. App. 1980) (summarizing the arguments against recognizing a medical cause of action sounding in contract); Van Zee v. Witzke, 445 N.W.2d 34 (S.D. 1989) (physician's statement that patient's finger would not be worse off after operation was mere therapeutic reassurance and therefore no contractual liability).

46 Papa v. Brunswick Gen. Hosp., 517 N.Y.S.2d 762, 764 (1987).

47 Id.; see also Coursen v. New York Hosp., 499 N.Y.S.2d 52-54 (1986) (collecting cases where complaint alleged conduct whose negligent nature could be readily ascertained by jurors based on common knowledge, e.g., electric light bulb negligently left under sheets).

48 Papa, 517 N.Y.S.2d at 764; Coursen, 499 N.Y.S.2d at 54-55.

49 See, e.g., Larsen v. Yelle, 246 N.W.2d 841, 844 (Minn. 1976); Monahan v. Weichert, 442 N.Y.S.2d 295, 298 (1981); PEGALIS & Wachsman, supra note 1, § 2:1, at 42 (expert testimony ordinarily required as to the applicable standard of care).

The halacha imposes the same requirement. See Legal Responses of Tzitz Eliezer, Ramat Rachel, no. 23 (citing the Tashbetz and Misgerel Ha'shulchan that a physician's error must be discernible by other expert physician before liability is imposed) [hereinafter Ramat Rachel]; see also infra note 168.

50 Michael D. Mccafferty & Steven M. Meyer, Medical Malpractice: Bases of Liability § 2:1 (1985); Pegalis & Wachsman, supra note 1, § 2:1, at 39.

51 Scott v. Brooklyn Hosp., 480 N.Y.S.2d 270, 271-72 (1984). This paper will not discuss the causation element required to establish a negligence claim. For an excellent discussion of halachic causation principles see, Haut, Irwin, Causation in Jewish Tort Law, 3 Nat'l Jewish L. Rev. 1 (1988)Google Scholar; see also Ramban, Kuntres Dina D'garmi (Chavel ed. 1970), Tractate, Gittin 70b (Tosafot s.v. b'beita); Tracate, Baba Batra 22b (Tosafot s.v. zot o'meret). For American causation principles, see, the classic debate in Palsgraf v. Long Island Railroad, 248 N.Y. 339 (1928) between Judges Cardozo and Andrews. See also Keeton et al., supra note 29, §§ 42-45.

52 A physician is not even obliged to treat an injured party in an emergency situation. Pegalis & Wachsman, supra note 1, § 2:3, at 46.

53 119 N.E.2d 657 (Ohio Ct. App. 1951).

54 Rice, 119 N.E.2d at 659 (quoting 41 Am. Jur. 2D, Physicians & Surgeons 135). By contrast, Jewish law obligates physicians, as well as laymen, to intervene to save the life or limb, or even cure the ailment of another human being. In this sense, physicians are “public servants” whose services should be made available to all who need them. See infra notes 117-24 and accompanying text.

55 See, e.g., Lee v. City of New York, 560 N.Y.S.2d 700, 701 (1990).

56 Pegalis & Wachsman, supra note 1, § 2:1, at 40.

57 Findlay v. Board of Supervisors, 230 P.2d 526, 531 (Ariz. 1951).

58 See, e.g., Hickey v. Travelers Ins. Co., 558 N.Y.S.2d 554 (1990) (physician-patient relationship created by contract either express or implied); see also Pegalis & Wachsman, supra note 1, §2:1, at 40.

59 239S.E.2d 103 (Va. 1977).

60 Id. at 105.

61 See, e.g., Ervin v. American Guardian Life Assurance Co., 545 A.2d 354 (Pa. Super. Ct. 1988) (no physician-patient relationship where physician examined electrocardiogram of an insurance applicant as part of physical examination to determine insurability, and therefore no duty to discover patient's heart problem, or to inform patient of problem if, in fact, discovered); Craddock v. Gross, 504 A.2d 1300 (Pa. Super. Ct. 1986) (no physician-patient relationship where physician examining patient on behalf of workmen's compensation carrier offers no advice, diagnosis, treatment or prescriptions); Lee v. City of New York, 560 N.Y.S.2d 700, 702 (1990) (no physician-patient relationship found where third party employer asked physician to examine patient in order to ascertain fitness to serve as a firefighter); Murphy v. Blum, 554 N.Y.S.2d 640 (App. Div. 1990) (no physician-patient relationship where physician examined plaintiff-referee on behalf of the National Basketball Association).

62 See, e.g., Easter v. Lexington Memorial Hosp., Inc., 278 S.E.2d 253 (N.C. 1981); Willoughby v. Wilkins, 310 S.E.2d 90 (N.C. Ct. App. 1983).

63 See, e.g., Walters v. Rinker, 520 N.E.2d 468 (Ind. Ct. App. 1988) (pathologist's examination and diagnosis of a tumor removed from patient established a physician-patient relationship since services were rendered on behalf of patient though patient did not seek pathologist's assistance and pathologist did not physically examine the patient).

64 See, e.g., Bienz v. Central Suffolk Hosp., 557 N.Y.S.2d 139 (App. Div. 1990) (telephone call to a physician's office for the purpose of initiating treatment may create a physician-patient relationship).

65 One textbook on medical malpractice lists the following specific duties:

  1. 1.

    1. duty to inform patient of nature and extent of disease and extent and hazards of treatment,

  2. 2.

    2. duty to refer patient for ailments beyond knowledge and skill of physician,

  3. 3.

    3. duty to attend to patient diligently, and

  4. 4.

    4. duty to meet proper standard of care.

McCafferty & Meyer, supra note 50, at 13-14.

Another textbook contains the following, more detailed, list:

  1. 1.

    1. duty to employ best judgment,

  2. 2.

    2. duty to take proper medical history,

  3. 3.

    3. duty to conduct careful and proper physical examination,

  4. 4.

    4. duty to use laboratory and ancillary procedures,

  5. 5.

    5. duty to make proper diagnosis,

  6. 6.

    6. duty to refer to a specialist,

  7. 7.

    7. duty to obtain informed consent,

  8. 8.

    8. duty to keep abreast of medical knowledge,

  9. 9.

    9. duty not to abandon patient, and

  10. 10.

    10. duty owed to nonpatient third parties.

Pegalis & Wachsman, supra note 1, at 39.

66 Pegalis & Wachsman, supra note 1, § 2:1, at 41. One New York court, in a similar formulation, stated that these three “propositions represent the ‘three component duties’ that form the basic theory of medical malpractice.” Hirschberg v. State, 398 N.Y.S.2d 470, 472 (Ct. Cl. 1977).

67 Pegalis & Wachsman, supra note 1, § 2:4, at 48. Unless, of course, the physician is found to have promised a specific result, in which case the claim will sound in contract. Id.

68 Ayers v. Parry, 192 F.2d 181, 184 (3d Cir. 1951); Spike v. Sellett, 430 N.E.2d 597, 600 (Ill. App. Ct. 1981) (proof of a bad result or a mishap is no evidence of negligence); Scott v. Brooklyn Hosp., 480 N.Y.S.2d 270, 273 (Sup. Ct. 1984).

69 Pegalis & Wachsman, supra note 1, § 2:1, at 41 & 2:9, at 70. See, e.g., Topel v. Long Island Jewish Medical Ctr., 431 N.E.2d 293, 298 (N.Y. 1981) (Fuchsberg, J., dissenting) (physician immune from liability for pure errors of judgment or for mere lack of success); Pike v. Honsinger, 155 N.Y. 201, 209-10 (1898) (physician not liable for mere error of judgment if he did what he thought best after a careful examination); Wilson v. State, 491 N.Y.S.2d 818, 820 (App. Div. 1985) (no liability for damages resulting from honest errors of professional judgment).

There appears to be a subtle distinction between errors of judgment and bad results, neither of which can serve as grounds for liability. In “bad result” cases the patient suffers harm, but, after consideration of the evidence, no error or miscalculation is discernible. The only explanation for injury is some unforeseeable, accidental circumstance such as an unknowable peculiarity of the patient's physiology. Essentially, then, a “bad result” is analogous to the notion of “unavoidable accident” discussed earlier. See supra note 29. In any case, because the physician's performance did not contribute in any way to the bad result, no liability exists. In halacha, the analogous concept would be o'ness gamur. See supra note 29 and accompanying text.

Conversely, in “error of judgment” cases, hindsight demonstrates not that a treatment or procedure was negligently administered, but that in retrospect a different approach would have probably avoided injury to the patient. Yet, despite what hindsight reveals to be a mistake of judgment, the errant physician is not liable since at the time of treatment the physician's actions did not deviate from accepted standards of medical care. In halacha, the equivalent term would likely be o‘ness k‘ein geneivah or o‘ness k‘ein aveidah, since the existence of error suggests some minimal amount of fault on the physician's part. See supra note 30 and accompanying text.

70 See, e.g., Spadaccini v. Dolan, 407 N.Y.S.2d 840, 846 (App. Div. 1978) (error of judgment charge appropriate where “doctor is confronted with several alternatives and, in determining appropriate treatment, exercises his judgment by following one course of action in lieu of another“); Roach v. Hockey, 634 P.2d 249, 252 (Or. Ct. App. 1981) (physician “not liable for an error of judgment where there is a reasonable doubt or a difference of opinion as to the nature of the patient's condition or the proper course of treatment and the physician acts with reasonable care and skill in exercising that judgment“).

It is for the jury to decide whether two or more acceptable methods exist for a particular procedure or whether two or more acceptable schools of thought exist for a particular course of treatment. Pecalis & Wachsman, supra note 1, § 2:1, at 42.

71 See, e.g., Jones v. Karraker, 440 N.E.2d 420, 425 (Ill. App. Ct. 1982).

72 See, e.g., Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir. 1980) (analogous case dealing with legal malpractice).

73 Clark v. Gibbons, 426 P.2d 525, 542 (Cal. 1967) (Traynor, J., concurring and dissenting).

74 Id. at 541.

75 525 N.Y.S.2d 93 (App. Div. 1988).

76 Id. at 95. Cf. Helling v. Carey, 519 P.2d 981 (Wash. 1974) (holding that defendant's decision not to perform a diagnostic test violated reasonable standard of care even though failure to perform the test did not violate the standards of the defendant's specialty).

77 See Plutshack v. University of Minn. Hosp., 316 N.W.2d 1 (Minn. 1982) (attending and treating physicians not responsible for bad outcome where no indication that physicians’ acts and omissions were inappropriate in light of professional medical standards).

78 In such cases, the plaintiff may find it useful to invoke the evidentiary device known as res ipsa loquitur. Translated from Latin as “the thing speaks for itself,” res ipsa loquitur is a rule of circumstantial evidence that permits the jury to infer negligence on the part of the defendant where the injury is of such character that it would not normally occur in the absence of negligence. See, e.g., Abbott v. New Rochelle Hosp. Medical Ctr., 529 N.Y.S.2d 352, 353-54 (App. Div. 1988). The rule is based on the common sense notion that certain accidents do not normally occur in the absence of negligence, and that therefore a jury ought to be permitted to infer negligence from the mere occurrence of the accident. Montgomery v. Opelousas Gen. Hosp., 540 So. 2d 312, 319 (La. 1989); Dermatossian v. New York City Transit Auth., 501 N.Y.S.2d 784, 788 (1986). But see Clark v. Gibbons, 426 P.2d 525, 541 (Cal. 1967) (Traynor, J” dissenting) (cautioning that an inference of negligence does not arise just because a medical accident rarely occurs absent additional proof that when the rare event transpires it is more likely than not caused by negligence).

The necessary elements for invoking res ipsa loquitur are more or less similar in most jurisdictions, to wit:

  1. 1)

    1) the [injury] must be of a kind that would not occur absent someone's negligence,

  2. 2)

    2) the [injury] must be caused by an agency or instrumentality within the defendant's exclusive control,

  3. 3)

    3) the plaintiff must not have voluntarily contributed to the [injury].

See, e.g., Abbott v. New Rochelle Hosp. Medical Ctr., 529 N.Y.S.2d 352, 353 (1988); Mccafferty & Meyer, supra note 50, at 39.

79 333 N.Y.S.2d 480 (App. Div. 1972).

80 Id. at 483.

81 Id.

82 Id. at 485.

83 Id. at 484 (citing cases with contrary holdings).

84 Bardessono v. Michels, 478 P.2d 480 (Cal. 1971).

85 Id. at 486.

86 Schrempf v. State, 496 N.Y.S.2d 973, 978 (1985).

87 446 N.Y.S.2d 932 (1981).

88 Id. at 936 (Fuchsberg, J., dissenting).

89 Id. at 934; see also O'Shea v. United States, 623 F. Supp. 380, 385-86 (S.D.N.Y. 1985).

90 Topel, 446 N.Y.S.2d at 934.

91 See Centeno v. City of New York, 369 N.Y.S.2d 710, 711 (App. Div. 1975), aff’d, 389 N.Y.S.2d 837 (1976).

92 Topel, 446 N.Y.S.2d at 939.

93 Id. at 937.

94 Id. at 936-37.

95 For a detailed discussion of the crisis threatening obstetrical care in New York see infra part III.C.3.

96 See, e.g., Epstein, Richard A., Market and Regulatory Approaches to Medical Malpractice: The Virginia Obstetrical No-Fault Statute, 74 Va. L. Rev. 1451 (1988)Google Scholar (advocating a market approach to medical malpractice law).

97 The March of Dimes Birth Defects Foundation estimates that a no-fault system would provide funding for approximately six times as many children as receive compensation under the current tort system. March of Dimes Memorandum in Support of New York Senate Bill 471 To Enact a No-Fault Scheme of Compensation for Neurologically Impaired Infants.

98 See, e.g., Sieradzki, supra note 2 (evaluating several approaches for dealing with medical malpractice and choosing “no-fault” as the best option).

99 Fla . Stat. Ann. §§ 766.301-.316 (West 1992).

100 Id. §766.301.

101 W. § 766.315.

102 W. § 766.314.

103 Another state with a similar plan, Virginia, also collects annual fees from obstetricians and hospitals. See Va. Code Ann. §§ 38.2-5020 (Michie 1987). See generally Virginia Birth-Related Neurological Injury Compensation Act, Va. Code Ann. §§ 38.2-5000 to 5021 (Michie 1987). For an article evaluating the Virginia statute see, Note, Innovative No-Fault Tort Reform for an Endangered Specialty, 74 Va. L. Rev. 1487 (1988).

104 Participating physicians are licensed physicians “who practice obstetrics or perform obstetrical services either full time or part time,” and who have paid the assessment. Fla. Stat. Ann. § 766.302(7).

Virginia's statute allows obstetricians to elect out of that state's program. Those obstetricians who participate are immune from suit for the injuries listed in the statute. If an obstetrician opts out then he may be liable in tort for damages, as determined at a jury trial. Patients’ rights are governed by the choice of the physician or hospital providing their care. Va. Code Ann. § 38.2-5002.

105 Fla. Stat. Ann. § 766.314(5)(a) (West Supp. 1993). The statute exempts certain physicians from its assessments. Id. § 766.314(4)(c).

106 See id. § 766.314(5)(c).

107 Id. § 766.305.

108 Id. §766.313.

109 Id. §§ 766.307 & 766.309(l)(a). Section 766.302 defines the birth-related neurological injuries entitled to compensation.

110 Id. § 766.308(1).

111 Id. § 766.31. It is significant that the Florida statute does provide for a non-economic damage award for pain and suffering.

112 One writer suggests other options for deterring inferior medical care. One method is to finance compensation funds by assessing “experience-rated” premiums. Essentially, “experience- rated” premiums are charges, levied on physicians, that vary according to the volume of compensable events occuring under the physician's care. Sieradzki, supra note 2, at 552, 559.

113 Fla. Stat. Ann. § 766.303 (emphasis added).

114 Tractate, Sanhedrin 37a; see also Maimonides, Mishneh Torah, Hilchot Sanhedrin 12:3. Mainmonides was one of the greatest Jewish legal scholars of all time, who also, incidentally, served as a physician to political heads of state. His magnum opus was the Mishneh Torah, a codificatory work whose exhaustive scope has never been rivaled.

115 Leviticus 18:5.

116 Tractate, Sanhedrin 74a. For example, the Sabbath laws do not apply in life threatening situations. Orach Chaim 328:3, 329:1-4.

117 Leviticus 19:16; see Tractate, Sanhedrin 73a where the Talmud concludes that the fundamental obligation to save another's life derives from the verse “and thou shall return it to him,” Deuteronomy 22:2, while the verse of “do not stand idly by” teaches that one must expend every effort, to the extent of hiring others, in order to save another's life. Maimonides, however, only cites the verse of “do not stand idly by” in his codification of the laws on rescue. Mishneh Torah, Book of Nezikin, Hilchot Rotzeach U'shemirat Ha'nefesh 1:14.

118 Deuteronomy 22:2.

119 Commentary on the Mishnah, Tractate, Nedarim 4:4. Maimonides states:

It is a Torah obligation upon the physician to heal the sick … and this is learned from the verse ‘and thou shalt restore it to him’ [which teaches that the physician] must heal [the sick patient], similar as to when one sees another in danger and can save him, [he must do so] whether with his body, property or knowledge.

120 See Tractate, Berakhot 60a where the Talmud states, “[d]eclared the study house of Yishmael - ‘Thou shall cause him to be healed’ (Exodus, 21:19)- from here that the physician has permission to heal.“

121 Torah Temimah, Exodus 21:19, no. 145.

122 Kitvei Ramban, Torat Ha'adam II, (Chavel ed.) at 4 3 [hereinafter Torat Ha'adam].

123 Ramat Rachel, supra note 49, ch. 21, at 26.

124 The verse “Love thy neighbor” is generally interpreted as teaching one to avoid doing onto one's neighbor as one would not want done onto oneself, and conversely doing onto others as one would want done onto oneself. See R. Epstein, Torah Temimah on Leviticus 19:18, n.128; Tractate, Rashi, Sanhedrin 84b (s.v. “v'ahavta“).

125 Joseph ben Ephraim Caro, 1488-1575, Israel. R. Caro's most famous work is the code known as the Shulchan Aruch, encompassing the four areas of Orach Chaim (daily ritual), Choshen Mishpat (civil law), Yorah Deah (additional religious laws), and Even Ha'Ezer (marriage and divorce laws). It is the most widely accepted code of Jewish law in use today.

126 Shulchan Aruch, Yorah Deah 336:1.

127 Torat Ha'adam, supra note 122, at 42.

128 The Tosefta (pl. Toseftot) is a legal text composed by the same scholars who wrote the Mishnah text. See supra note 23.

129 Tosefta, Baba Kamma 6:6.

130 Tosefta Gittin, 3:13.

131 This is patently clear according to Ramban who as shown, supra notes 34-35 and accompanying text, subscribes to a theory of strict liability. By exempting physicians from liability in certain instances the Toseftot have abandoned strict liability in the medical context. According to Tosafot, who assert a fault standard, it is less clear that physicians have been granted favored status in tort law. See supra notes 27-33 and accompanying text. Still, if physicians have been singled out for specific treatment, they must be enjoying some curtailment of liability.

132 Additional discussion on the topics herein may be obtained on audiocassette containing a recording of a lecture by Rabbi Mordechai Willig on professional malpractice. See supra note 39 (tape available at Yeshiva University).

133 In his discussion of the Biblical law establishing that a “horeg b'shogeg” (an unintentional killer) is exiled to one of six cities of refuge, Maimonides actually identifies three levels of “unintentional” culpability. Mishneh Torah, Hilchot Rotzeach 6:1-4 [hereinafter Hilchot Rotzeach]; see abo Numbers 35:10-34; Deuteronomy 19:1-13 (outlining the judicial process relating to unintentional killers). First, there is one who kills inadvertently, but with a sufficient measure of culpability to warrant exile. Hilchot Rotzeach, supra, at 6:2. This is the mens rea to which the term horeg b'shogeg applies as discussed in the Bible. The second type of unintentional killer is one who kills under circumstances that are highly unusual, uncommon and unforeseeable. Id. at 6:3. Maimonides labels such a killer karov l'o'ness, or approximating accidental, and exempts him from exile because there is no culpability at all. The final killer is one who kills negligently (peshiah). Maimonides calls such a killer karov l'zadon or “approximating wilfulness”, and exempts such a killer from exile because his culpability is sufficiently high that exile alone will not atone for his crime. See also The Legal Responses of Rabbi Akiva Eiger, vol. 1, no. 3 (holding that one who kills karov l'meizid (approximating intentional) or karov l'peshiah (approximating negligence) is exempt from exile since exile will not suffice. The reader should also note that the institution of exile is no longer in force. See, e.g., Legal Responses of Rabbi Yitzchak Weiss - Minchat Yitzchak, no. 104, ¶ 6 v'hinay.

In this article, for purposes of simplicity, Maimonides three levels have been reduced to two, with the first two species — “inadvertently” and “unforeseeably” — subsumed under a single category labeled “accidental.“

134 As explained earlier, supra notes 29-30 and accompanying text, Tosafot subdivided the term o'ness into o'ness gamur (unaviodable accident), o'ness k'ein geneivah and o'ness k'ein aveidah. Tosafot's concept o'ness k'ein aveidah, with its connotation of increased culpability, may be analogous either to Maimonides's notion of “inadvertence,” see supra note 133, or “carelessness,” see infra note 135. In any event complete accuracy in these matters is impossible dealing as we are with shades of human awareness. In this article the use of the term o'ness or “accidental” in halachic contexts should be understood as coextensive with such American legal categories as “bad results” and “errors of judgment.“

135 In halacha, the term peshiah is usually translated as negligence. However, based on the hypotheticals discussed by Maimonides and Rabbi Akiva Eiger, supra note 133 & infra note 185, it appears that peshiah is more akin to recklessness. See Hilchot Rotzeach, supra note 133, at 6:6 (describing an example of peshiah as where an individual, demolishing a wall overlooking a public thoroughfare, dislodges a rock and kills a passerby); the Legal Responses of Rabbi Akiva EICER, vol. 1, no.3 (imposing penalties on a father who, judging from the events described, recklessly killed his son and servant). However, in his discussion of unintentional killers, Maimonides also refers to a mens rea, legally equivalent to peshiah, which he describes as “he should have been careful but was not.” This level of “unintentional” — “carelessness” as opposed to “recklessness” — which Maimonides says, like recklessness, is too blameworthy for exile to suffice, may be equivalent to the American version of ordinary negligence. However, again for purposes of simplicity, the term peshiah or “negligence,” as used in the halachic discussions in this article, will encompass the mental states of “ordinary negligence,” and “gross negligence” or “recklessness,” unless otherwise noted.

136 This query is relevant mainly if one accepts the position of Ramban, mentioned earlier, supra notes 34-35 and accompanying text, that general Jewish tort law adopted a system of strict liability. According to the Tosafot, who asserted a tort scheme based on fault, supra notes 27-33 and accompanying text, it seems more logical to assume that, with respect to medical malpractice, the halacha adopted a no-fault system and immunized negligent physicians as well. Exempting only physicians who injured their patients accidentally would seem to represent no retreat at all according to Tosafot who held that, as a general rule, all tortfeasors who cause harm accidentally are legally exempt. Unfortunately, unlike Ramban who explicitly addressed the issue of medical malpractice the Tosafot never spelled out their position on this topic.

137 See discussion infra notes 162-63 and accompanying text.

138 Tosefta Makkot - Hashmatot U'nuschaot Kitvei Yad 2:5.

139 As noted earlier, the Biblically prescribed punishment for an unintentional killing is exile.

140 Torat Ha'adam, supra note 122, at 41. One could reconcile the Tosefta in Gittin and the Tosefta in Makkot by arguing that the Tosefta in Makkot is not the law. In the Talmud, Tractate, Makkot 8a, a mishnah cites the opinion of Abba Shaul who holds that any individual who kills while performing a mitzvah (a righteous deed) is not exiled. Though Abba Shaul does not discuss the case of a doctor, most authorities indicate that treating and healing the ill is a mitzvah (e.g., Maimonides, Commentary on the Mishnah, Nedarim 4:4; R. Caro, Yorah Deah 336:1) and thus Abba Shaul's ruling presumably extends to physicians. However, Ramban appears to accept . the validity of the Tosefta in Makkot, and therefore the need still remains to reconcile the punishment of exile with the general exemption. See Rabbi Norman Lamm, Is it a Mitzvah to Administer Medical Therapy?, 8 J. Halacha & Contemp. Soc'y, at 5 (Fall 1984).

141 The Talmud expresses the fear that individuals may refuse to serve as judges if an erroneous decision may subject them to liability. Tractate, Sanhedrin 6b. In response, the Scriptures state, “He is with you in giving judgment,” 2 Chronicles 19:6, to which the Talmud adds, “the judge is [therefore] only [accountable] for what he sees with his own eyes.” Rashi explains that as long as a judge decides a case conscientiously and with the desire to ascertain the truth he will not be punished for unintentional errors. Tractate, Sanhedrin 6b (Rashi s.v. “elah“).

The Talmud's language, “the judge is only accountable for what he sees with his own eyes,” suggests that the exemption established absolves the judge from ignorance of facts not readily observable or knowable. For example, one of the litigants might withhold information from the court with the consequence that the judge misinterprets what occurred. In short, the exemption appears to refer solely to mistakes of fact. The liability of a judge for mistakes of law is extensively discussed at Tractate, Sanhedrin 33a and commentaries thereon; the Shulchan Aruch, Hoshen Mishpat (“H.M.“), no. 25; R. Yeshaya Blau, Pitchei Hoshen, Hilchot Nezikin, ch. 4., no. 30 [hereinafter Hilchot Nezikin].

142 Note that Ramban's first hypothetical resembles the “bad outcome” type cases discussed earlier under American law.

143 Torat Ha'adam, supra note 122, at 41-42. Ramban's second hypothetical, that of mistake, resembles the “error of judgment” cases already discussed.

144 The Ramban's scheme of physician liability is adopted by both the Tur , Yorah Deah, 336:1; R. CARO, Shulchan Aruch, Yorah Deah 336:1; see also Responsa, Legal Responses of Tzitz Eliezer, vol. 4, no. 13.

145 See supra notes 138-42 and accompanying text.

146 See supra note 133 and accompanying text.

147 Torat Ha'adam, supra note 122, at 42.

148 Id. at 41-42.

149 See supra note 135.

150 Supra notes 67-75 and accompanying text.

151 See Blau, Hilchot Nezikin, supra note 141, ch. 12, 8:16 (theorizing that Ramban perceived the exemption as a means to avoid penalizing physicians for mere lack of success). Rabbi Blau also cites the commentator Derishah who opines that a bad result indicates, not some failure of the physician, but that G-d did not wish the patient to be healed. Derishah's opinion reflects the notion, present to varying degrees in many authoritative halachic commentaries, of a deity actively involved in the healing process. See, e.g., Tractate, Baba Kamma 60a, Tosafot (S.V. sh'nitnah). Such beliefs, in turn, effect rabbinic opinions regarding medical liability. Jewish law would therefore tend to demand more compelling and convincing proof of actual negligence by a physician before holding such physician liable. This is so because in the absence of such compelling evidence one might acceptably ascribe an injury or death to Divine will.

152 Rabbi Willig in a lecture to rabbinical students at Yeshiva University notes an irony in Ramban's theory. Since a physician who commits an error of judgment will still be morally liable, the effect of the exemption is lost since payment will probably be made in any case, at least by conscientious physicians. See Elon, Ha'mishpat Ha'ivri, vol. 1, at 174-75 (citing halachic sources that hold that whenever Jewish law prescribes a moral penalty a court must actively encourage and attempt to persuade the defendant, in a non-coercive fashion, to fulfill his moral obligation to compensate the victim). While Rabbi Willig's observation is correct, a benefit still exists, under Ramban's formulation, in cases where no error can be ascertained and injury is simply due to an inexplicably bad outcome. Under strict liability the physician would still be liable in such a case; with the exemption he is completely exonerated.

153 Spain, 1290-1375.

154 Tractate, Chiddushei Ha'ran, Sanhedrin, ch. 10, at 155 (s.v. Rav).

155 Supra note 141 (discussing liability of judges for mistakes of fact).

156 The term shogeg implies some level of culpability, albeit small. The very fact that a shogeg murderer must theoretically go into exile indicates that some degree of fault, however minimal, exists. Ran apparently felt that it was more accurate to label an erring physician as an anoos, which term more fairly takes into account the uncertainties of medical science and the complexity of the human body as mitigating factors. What emerges is that according to Ran the halacha accords physicians a fundamentally different status than other tortfeasors; a status that more accurately reflects the innocence of the physician in situations where injury results from unknowable and unforeseeable causes.

157 Ramat Rachel, supra note 49, no. 23, at 30. Rabbi Waldenberg also states that it is possible that the Ramban's stricter position imposing moral liability for recognized errors of judgment may have only applied in Ramban's generation when there were no strict licensing requirements, and many physicians lacked skill and experience. However, today, because of strict governmental supervision of licensing, all physicians may be considered experts, and under such conditions, Ramban may have agreed with Ran that a physician who makes an error of judgment would be totally exempt. Id.

158 Tractate, Sanhedrin 84b.

159 Legal Responses of Tzitz Eliezer, vol. 4, no. 13, at 67.

160 Supra notes 67-75 and accompanying text.

161 Rabbi Solomon ben Abraham Adret, 1235-1310, Spain.

162 Tractate, Babba Kamma 99b.

163 As noted earlier, if the customer can prove negligence, then recovery is available whether the craftsman is paid or unpaid. See supra note 33.

164 The logic of these rules is that if a particular trade requires great skill then, even in the absence of negligence, damage to a client's property is still presumed to result primarily from the less skilled craftsman's error even where such craftsman is a professional. Only damage arising during work performed by a master can still reasonably be attributed to accident. of course, it should be recalled that if a customer can prove actual negligence then he may recover even from the master.

The term “master” craftsman originates in the Talmud where mention is made of Nicho and Issur, the most expert moneychangers of their time. Tractate, Baba Kamma 99b. Absent unforeseeable accidental circumstances they, and others of their caliber, could easily ascertain the authenticity of a coin.

There is a dispute among the early authorities as to whether a master craftsman in any field (equivalent to Nicho and Issur in money changing) enjoys absolute immunity, whether paid or unpaid, see Tractate, Rashba, Baba Kamma 99b (q.v. “amar Rav Pappa“), or whether a master only enjoys exemption when unpaid, see, e.g., Maimonides, Hilchot Sechirut 10:5; Shulchan Aruch, Choshen Mishpat 306:6).

165 See supra note 164.

166 1361-1444, Spain and Algiers.

167 Responsa Tashbetz, vol. 3, no. 82.

168 The use of competent physicians to review the defending physician's actions, implies that the Tashbetz did not consider a court qualified to judge the offending physician's competence. As in American law, expert testimony was required. See supra note 49 and accompanying text.

169 Responsa Tashbetz, supra note 167 (s.v. “ha'oleh.“).

170 The Tashbetz thus adopts a slightly stricter position than Ramban who exempted the physician entirely in the absence of any error. Additionally, if a patient died as a result of the physician's error, Ramban held that exile was sufficient.

171 Ramat Rachel, supra note 49, vol. 4, ch. 13, at 67.

172 Rabbi Blau ascertains a second basis for the Tashbetz's distinction based on an analysis of causation principles. Blau, Hilchot Nezikin, supra note 141, ch. 12, 8:18, at 342-43.

173 Menahem ben Solomon Meiri (France, 1249-1316). See Blau, Hilchot Nezikin, supra note 141, ch. 12, 8:16.

174 See supra notes 27-33 and accompanying text.

175 1637-1683, Poland.

176 The “total” exemption theory also appears to be the understanding of Rabbi Yechiel Epstein who states that an erring physician who possesses reshut beit din will be exempt in human courts but liable “under heaven” where injury resulted from the physician's negligence (“hitrashulto“) and failure to exercise due care. Aruch Ha'shulchan, Yorah Deah 336:2.

177 Tractate, Babba Kamma 6:6.

178 See supra note 130 and accompanying text.

179 Lecture to rabbinical students at Yeshiva University, supra note 39 (tape available at Yeshiva University).

180 Tractate Baba Kamma 2b. The other two paradigmatic “ox” torts are Tooth (ox that injures while eating or otherwise deriving pleasure) and Foot (ox that injures while walking). Id. For an American “bull” story, see Sutton v. Sutton, 243 S.E.2d 10 (Ga. App. 1948) (establishing how many times a bull must charge to be deemed crazy or wild).

181 See supra notes 95-111 and accompanying text.

182 of course, a physician who intentionally injures his or her patient would face civil and probably criminal liability. See supra note 130 and accompanying text. Cf. Blau, Hilchot Nezikin, supra note 141, ch.12, 8:16; Florida Plan, supra note 99.

183 Under traditional “no-fault” statutes a negligent practitioner still has to contribute his aliquot share to the fund. However, it has been argued that an abstract, annual payment, rather than one based on a verdict of negligence in a malpractice suit does little to deter negligence. As such, all the states that have enacted “no-fault” legislation also arrange for a system of peer review and sanctions for negligent physicians. Other commentators have suggested assessing premiums based on the number of valid complaints lodged against a particular physician. See supra note 112.

184 See Levine, Rabbi Aaron, Veiled Misconduct and Government in the Torah Society, 5 Nat'ljewish L. Rev. 115 (1990-91)Google Scholar (discussing the extent of the government's ability to compel citizens to fulfill their moral obligations); see also Elon, supra note 152 (citing authorities that require courts to actively encourage tortfeasors, in a non-coercive manner, to fulfill their moral obligations).

185 In a responsum, Rabbi Akiva Eiger crafted a novel program of repentance for an individual who killed negligently. R. Akiva Eiger, Legal Responses of Rabbi Akiva Eiger, vol. 1, no. 3. A similar program of philanthropy and/or community service, of an intensity commensurate with the physician's level of culpability in a particular case, might be suitable in modern times as a sanction designed to deter negligent medical care.

The case posed to Rabbi Eiger involved an unfortunate accident where a man's son and servant were sleeping on a wagon at night. Unaware of the sleeping pair, the man apparently whipped up the harnessed horses whereupon the wagon overturned, crushing the son and servant. The man turned to Rabbi Eiger to fashion a program of repentance for having caused the death of two individuals. Rabbi Eiger first notes that the laws of exile do not apply in our days, but then suggests that the questioner's status is not that of shogeg, but rather karov l'meizid (approximating intentional) or karov l'peshiah (approximating negligence) for which exile is not sufficient. The man should have realized that running horses at night was a reckless act that might cause injury to property or life. To repent for such recklessness, Rabbi Eiger first suggests that, in order to compensate for the lost offspring of the victims, the man should calculate how much he would have spent on his son's wedding and other expenses, and from that sum set aside a special fund to financially support poor youths studying in Hebrew school. Should these students marry and have children the eldest son should be named after the man's dead son. With respect to the servant, the man should pay for the tuition of poor students who should in turn learn a passage in Talmud each day in memory of the deceased. On the anniversary of the victims’ deaths the man should visit their graves to ask for forgiveness, and pay for a special learning session. Finally, Rabbi Eiger proposed a special program of fasting.

186 The Talmud actually refers to the malpractice of bloodletters who were considered medical professionals at the time of the Talmud. See Tanna Devei Eliyahu, ch. 23 (an early halachic work suggesting that inferior physicians be removed from their positions).

187 After all is said and done, the possibility of getting sued has a significant deterrent effect on negligent medical conduct which is lost under a no-fault system. As one article on American medical liability stated:

Damage awards in malpractice suits play the dual role of compensating victims and deterring providers from negligent performance. Compelling a negligent provider to pay a large damage award sends a signal to other providers to take steps to minimize future carelessness. Providers must weigh the cost of avoiding injury to patients with the cost of paying for it. Thus, individual physicians may choose to invest in further training, abandon procedures in which they lack expertise, or devote more time to examinations.

Schwartz, William B. & Komesar, Neil K., Doctors, Damages, and Deterrence, 298 New Eng. J. Med. 1282-89 (1978)CrossRefGoogle Scholar.

188 See supra notes 162-64 and accompanying text.

189 The practical differences between whether a law is Biblical or rabbinic are plentiful. For example, in cases of doubt concerning a violation of a Biblical law one must act stringently, whereas cases of doubt are resolved leniently for a rabbinic law. See Herzog, supra note 9, at 2- 11.

190 See supra note 130 and accompanying text.

191 See the series of Mishnah texts in Tractate, Gittin, ch. 4, nos. 2-9.

192 Tosefta Gittin, 3:13, no. 13.

193 See Mishnah, Tractate, Baba Kamma 26a. The Minchat Bikkurim appears to hold that the Tosefta, like Ramban, accepts a general rule of strict liability.

194 See also Tashbetz (Simeon ben Zemah Duran, 1361-1444, Spain and Algiers) who agrees with the view that it was the rabbis who suspended the principle of adam muad l’olam in order to eliminate the disincentive for physicians. Legal Responses of Tashbetz, vol. 3, no. 82.

195 Torat Ha'adam, supra note 122, at 41. The Ran also appears to hold that the exemption is Biblical when he states,

A skilled physician who commits an error during treatment is not a ‘shogeg’ but an ‘anoos‘(accidental tortfeasor)… . As it states [in the Torah and Talmud],V'rapoh y'rapeh - from here the physician received permission to treat and heal'… he is [therefore] only concerned with what his eyes see as [similarly] stated by the judge.

Tractate, Chiddushei Ha'ran, Sanhedrin 84b.

196 See Tractate, Baba Kamma 85a; Tractate, Berakhot 60a (opinion of the Talmudic scholar Abbaye).

197 Torat Ha'adam, supra note 122, at 41.

198 See supra notes 79-82 and accompanying text.

199 Ayers v. Parry, 192 F.2d 181, 186 (3d Cir. 1951); see also Clark v. Gibbons, 426 P.2d 525, 541 n.l (Cal. 1967) (Traynor, J., concurring and dissenting) (to permit an “inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used“).

200 See generally Ball, supra note 1, at 28-35.

201 Id. at 28.

202 Id.

203 Id. at 30.

204 Id. at 35.

205 Statistics show that one-third of all New York obstetricians have been sued four or more times. Overall, the number of obstetrical lawsuits in New York has increased by 400%. In 1990, there were fifteen awards in excess of $1 million; the next year the number doubled. Id. at 30. Many obstetricians also cite soaring malpractice costs as an incentive to abandon a delivery practice (obstetrician's premiums in Nassau County can top $100,000 a year), but in economic terms the fees earned by an obstetrician from delivering babies will almost always cover the proportionate increase in insurance premiums. Id. In the final analysis, it appears that the emotional trauma of a protracted lawsuit; the feelings of pain, guilt, betrayal, embarrassment, and anger that accompany litigation; and the distrust which frequently sours the physician-patient relationship, are the primary factors driving the growing exodus.

206 The Apgar scale is a test designed to rate a newborn's health. The scale runs from one to ten.

207 Id. at 30. It is important to note that, if such perceptions are indeed accurate, then the American legal system has failed to abide by its own rule that liability shall not be imposed for bad outcomes and errors of judgment.

208 Id. at 32.

209 See supra notes 193-94 and accompanying text.

210 Id. at 32.

211 Id. at 31.

212 Id. at 32.

213 Id. at 34.

214 Id.

215 Id. at 30; see supra notes 95-111 for a detailed description of one such statute enacted in Florida, and a general discussion of “no-fault” legislation.

216 Ramat Rachel, supra note 49, ch.22, at 26.

217 Aruch Ha'shulchan, Yorah Deah 336:2.

218 See infra notes 233-39 and accompanying text for a discussion of the halachic greater expert limitation.

219 Rabbi Waldenberg cites several authorities who all indicate that medical knowledge and skill are the sole criteria necessary to practice medicine. See, e.g., Torat Ha'adam, supra note 122, at 43 (Ramban stating that it is a mitzvah to heal so long as the individual possesses the requisite medical knowledge and skill); Tur (Jacob ben Asher, 1270?-1340, Spain and Constantinople), Yorah Deah, no. 336; Rabbi Caro (Joseph ben Ephraim Caro, 1488-1575, Israel), Shulchan Aruch, Yorah Deah 336:1. None of these authorities condition the practice of medicine on reshut beit din or the receipt of a license.

220 Tractate, Sanhedrin 5a. The Resh Galuta, or Exilarch, was the title given to the Jewish official who represented and presided over Babylonian Jewry in the Talmudic era.

221 This explanation follows the position of Rashi who explains the phrase “kiblu aleihu” as delineating a case where the litigants agree to unconditionally and absolutely accept the judge's decision as final, regardless of its ultimate correctness. The litigants are thus deemed to have waived the right to make any claims against the judge. Tractate, Sanhedrin 6a (Rashi s.v. “e kibluch“).

222 Ramat Rachel, supra note 49, at 27. Interestingly, Rabbi Waldenberg cites the commentary Beit Hillel on Yorah Deah who holds that even if a particular physician does not possess explicit authorization from a court, but has nevertheless developed a reputation within a particu lar community as a competent and successful physician, then such a physician will also be exempt from liability. Ramat Rachel, supra note 49, at 27.

Rabbi Willig, in a lecture to rabbinical students (tape available at Yeshiva University), expressed doubts that, in today's litigious society, patients could ever be deemed to have waived their right to sue a physician, especially in the United States where medicine is a lucrative profession, patients hold physicians to a high standard, and insurance is widely available. of course, no-fault legislation would remove a patient's right to sue regardless of his or her personal wishes. Though, under Rabbi Waldenberg's explanation, recovery with respect to non-negligent torts is waived, if it is proved that a physician was negligent, the injured patient could recover since the exemption only covers bad results or errors of judgment. of course, if one defines the exemption to encompass even negligent error, then a patient could not recover even from a negligent physician. However, the community through beit din could revoke the physician's license, thus subjecting the physician to future suits.

223 Rabbi Waldenberg cites a responsa of Rabbi Saul Nathanson stating that the members of a Jewish court must possess medical knowledge. Ramat Rachel, supra note 49, ch.22 at 27. Rav Waldenberg points out that such a requirement is unnecessary if the court's sole function is not to determine the physician's competence, but rather to act as the community's representative in licensing qualified physicians. Id. According to Rav Epstein, however, who holds that a Jewish court establishes the physician's competence to practice, it would appear that the members of the Jewish court ought to possess at least some medical knowledge. However, a Jewish court might also rely on a medical degree from an accredited institution and a state license as evidence of competence, while reserving for itself the ministerial task of officially admitting the applicant into the medical ranks.

224 242 N.Y. 176 (1926).

225 Id. at 181.

226 Id. (emphasis added).

227 Id. at 186.

228 Id. at 188.

229 Id. at 188-89.

230 This question is only relevant if one accepts Tosafot's view of a fault standard. According to Ramban, who asserts a general system of strict liability, the lack of reshut beit din would restore the physician to a strict liability standard and the question of fault and “reasonable care” would become irrelevant.

231 It does appear, however, that Rabbi Waldenberg holds that, nowadays, the absence of a license (or a degree) is evidence of an individual's non-expert (in Hebrew, lo bakee) status. Ramat Rachel, supra note 49, at 30.

232 A physician who injured his patient and never received reshut beit din would be subject to the general rules of professional liability. According to Tosafot, who hold that the halacha adopts a “fault” standard a physician could avoid liability by exercising proper skill and care, i.e., not being negligent. However, according to Ramban, who holds that the halacha adopted a general scheme of strict liability a physician operating without reshut beit din could only avoid liability by not causing any injury.

Rabbi Herschel Schachter notes that with respect to physicians who work without reshut beit din liability may be imposed regardless of whether the physician was paid or unpaid as distinguished from other professionals where working gratis offers greater protection. Physicians thus face a stricter standard of liability than other professionals. Rabbi Schechter suggests that this stringency flows from the fact that, since healing is a mitzvah (righteous deed), physicians receive “spiritual” remuneration for their services over and above any financial compensation. See Herschel Schachter, Medical Malpractice, Jewish Law and Current Legal Problems 217-23 (Nahum Rakover ed. 1984); cf. Teshuvot Chakrei Lev, Mahadura Batra, Choshen Mishpat, no. 31 (disputing Rabbi Schachter's argument).

233 See, e.g., Tur, Yorah Deah 336:1; Shulchan Aruch, Yorah Deah, 336:1; Ramat Rachel, supra note 49, no. 22, para. 5 (s.v. “u'venogeah“).

234 Id.

235 Shulchan Aruch, Yorah Deah, no. 242. Rabbi Blau points out that the analogy to the judge with respect to the greater expert limitation may not be entirely accurate. Blau, Hilchot Nezikin, supra note 141, ch.12, 7:14, at 340. The laws outlined in Yorah Deah, ch. 242 partially flow from religious notions of kavod ha'rav, (respect for a rabbinic mentor) an issue that does not arise in the medical context. However, Rabbi Blau also cites the early authority, Semah, who appears to hold that the requirement to consult a superior rabbi stems from the fear of error. Id. Maimonides rationalizes the requirement as a means of counteracting arrogance, a trait that could lead a less proficient judge to issue erroneous decisions. These two fears, that of error and that of arrogance leading to error, would apply in the medical context.

236 The two major authorities on the subject — Maimonides, Hilchot Sanhedrin, 20:8, and the Shulchan Aruch, Yorah Deah 242 — both appear to suggest that, as a general rule, the greater expert limitation in the judicial context only applies where the case presents novel questions of law, and the lesser judge, in order to render a decision, must analogize to existing law. Blau, Hilchot Nezikin, supra note 141, ch. 12, 7:14, at 340 (s.v. “u'milashon). However, it would appear that where the case presents straightforward applications of law, there is no need to consult a more expert authority. However, the commentator Ketzot ha'Choshen reports an opinion which holds that one must consult with a superior rabbi on even straightforward questions of law. Id.

237 Blau, Hilchot Nezikin, supra note 141, ch. 12, 7:14, at 340.

238 Id.

239 Id.

240 Id.

241 Ramat Rachel, supra note 49, no. 22, at 27.

242 Id.

243 Id.

244 Id. at 27-28.

245 Id. at 28 (s.v. zehu).

246 See generally Pegalis & Wachsman, supra note 1, at 92-94 and Mccafferty & Meyer, supra note 50, at 22-25.

247 205 P.2d 3 (Cal. 1949).

248 Id. at 4-5.

249 Id. at 8.

250 Id. at 9; see also Lewis v. Soriano, 374 So. 2d 829 (Miss. 1979) (doctor liable in malpractice where doctor did not possess training or skill of an orthopedic surgeon but nevertheless undertook treatment of a complicated fracture and dislocation).

251 See, e.g., Villetto v. Weilbaecher, 377 So. 2d 132, 135 (La. Ct. App. 1979). Similarly, as noted supra notes 235-40 and accompanying text, both Rabbi Blau a n d Rabbi Waldenberg permit physicians to treat routine ailments whose cure is widely known. Only where a case is difficult and complex, and the skill required exceeds the attending physician's talents, does the duty to consult arise.

252 100 N.W.2d 124 (Minn. 1959).

253 Id. at 128-29. T h e court also remarked that a physician is not an “insurer,” a n d therefore not every treatment that “ turns out to be less than a complete success gives birth (no pun intended!) to a malpractice suit… .” Id.

254 Id. at 129.