The Recent Transformation of Medical Liability in Jewish Law

Abstract

Until the Twentieth Century Jewish law sources provided that licensed doctors who erred would be liable only in a heavenly court. Modern authorities, including leading Ultra-Orthodox rabbis, Israeli court judges, and scholars who seek to have Israeli law incorporate aspects of Jewish law, have used a variety of techniques to bring Jewish law into line with Western norms by redefining the standard of care and the measure of damages and by imposing liability for omissions and for failure to obtain informed consent. There are substantial costs to these efforts.Older texts that retain their sanctity do not easily yield to radical reinterpretation, and one is likely to lose sight that Jewish law has its own goals for it sees compensation as a means to atonement, not as an end in itself or as a means of corrective justice or deterrence. The Article considers several other means of bridging the gap between the classical sources and modern needs and finds them unsatisfactory. Drawing on an analogous problem in American Admiralty law, the Article concludes that given the changes in the theory and practice of medicine, radical reinterpretation is, despite its costs, appropriate both for those who want to be governed directly by Jewish law and those wanting Jewish law to be a source of Israeli law. The earlier codes of Jewish law addressed the needs of their time when doctors had great reason to fear that they would harm their patients. Medicine was largely based on a priori theory, not science. Today's doctors have less reason to fear and have a better understanding of the risks.