Date of Award

2000

Document Type

Open Access Thesis

Degree Name

Medical Doctor (MD)

Abstract

Medical malpractice is largely a product of the modem era. Consequently, one might suppose that ancient sources have little to add to any meaningful discussion of the topic. Yet, numerous models and precedents directly or indirectly applicable to malpractice surface in the vast body of traditional Jewish literature of the last two millennia. These sources can lend profound insight for the physician - and others - grappling with issues of moral and legal responsibilities related to care of patients and malpractice. This thesis will first catalogue the various types of immunities, and qualifications for those immunities, granted by Jewish law to the physician. These immunities allow the physician to practice while safeguarding the public's best interests. Permission to heal and obligation to heal are immunities that primarily relate to man's responsibility to G-d. Immunity from the Biblical prohibition of wounding another human being represents a dual privilege, as the prohibition of wounding issued from G-d, but wounding directly affects one's fellow human being. Finally, immunity from payment of damages relates to man's responsibility to his fellow man. The thesis will then address several issues in malpractice, such as the burden of proof, types of physician error, and the status of bad outcomes. These issues will be analyzed from the perspective of classical models in Jewish law, which relate both directly and indirectly to malpractice. The contemporary Jewish legal authority must often extrapolate concepts from other areas of the law in order to render decisions relating to uniquely modem issues such as medical malpractice. The goal of this thesis is to foster within the reader an appreciation of the value of traditional Jewish literature in analyzing problems in medical malpractice today.

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