Malpractice and doctors

Does Jewish law allow for suing medical personnel?

Rabbi Dr. Raymond Apple

Judaism doctors (illustration)
doctors (illustration)

Q. Does Jewish law allow a malpractice action against a doctor?

A. Judaism has a high opinion of doctors but recognises the danger a negligent doctor can cause.

Hence Ben Sira says, "Honour the physician… for the Lord has created him" (Ecclesiasticus 38:1), but the Mishnah sadly adds, "The best of doctors is destined for Gehinnom" (Kidd. 4:14).

This mishnaic statement is too sweeping to be taken literally, since halachah insists that a sick person must call in the doctor and about 50% of the rabbinic scholars of the Middle Ages were physicians.

What the Mishnah is attacking is doctors who practise their art in a negligent or mercenary way or both.

The authoritative responsa work, "Tzitz Eliezer", by Rabbi Eliezer Yehudah Waldenberg, points out that the modern doctor is not working independently but requires to be authorised and registered by the state, and whilst registered he is assumed to be competent and to work according to accepted professional standards.

However, if there is evidence of individual error such as administering the wrong medication or giving an injection in the wrong place, a doctor is endangering his patients, risks losing his licence to practise, and is liable for damages (Tzitz Eliezer 4:13, summarised in "Jewish Medical Law" by A Steinberg, translated by DB Simons, 1980, part 10, chapter 5).

Words before the Shema prayer

Q. Why do we say the three words, E-l Melech Ne’eman, before the Shema?

A. There is a view that they add to the words of the Shema to add up to 248, equivalent to the parts of the body (Midrash Tanchuma).

The idea is that the whole of our person attests to the existence and oneness of the Almighty (the Psalmist says, Kol atz’motai tomarna – "All my bones declare, 'Lord, who is like You?'": Psalm 35:10).

This arithmetical calculation explains why the three words are left out in congregational worship, when the officiant adds three words at the end – HaShem Elokechem Emet, also adding up to 248.

The three words E-l Melech Ne’eman can also be taken as symbols of the three tenses – past, present and future.

Before the world’s creation, HaShem was E-l, the powerful One, but He was all alone. When the world was brought into being, He became Melech, the King: now He had a kingdom. As Ne’eman, the faithful One, He will lead and preserve His world and bring about the final redemption.