American Journal of Law & Medicine

Doctors on trial: a comparison of American and Jewish legal approaches to medical malpractice.


Today, medical malpractice continues to generate more controversy, calamity and crusades for reform than almost any other area of law.(1) In fact, none of the major players appear satisfied with the current system. Even when triumphant, patients (or their representatives) receive only a small percentage of the award,(2) and inevitably feel drained by the emotional and psychological stress that accompanies lengthy court battles.(3) A majority of medical malpractice victims are never even compensated.(4) Many physicians still feel under siege from aggressive plaintiffs' attorneys,(5) soaring malpractice premiums,(6) and overly sympathetic juries.(7) Clearly, it is in the best interest of the judicial system, and society as a whole, to ascertain the most effective and efficient scheme for compensating the victims of medical torts, protecting competent physicians from frivolous suits, and deterring inferior medical care.

This paper will compare and contrast the halachic (Jewish legal)(8) and American legal approaches to medical malpractice. By way of introduction, Part II of this paper will briefly discuss the principles that govern general tort law in both legal systems. This discussion will give the reader a base from which to understand and compare the substantive and procedural changes effected with respect to medical malpractice litigation. Part III will examine the alternative tort schemes adopted by both systems for adjudicating medical malpractice cases. The discussion will show that two basic schemes -- no-fault and fault -- are commonly advocated and that the halacha and American law partake of each type. In the same section, the paper will also compare the two systems on various issues pertaining to medical malpractice such as: the distinction between suits challenging a defendant-physician's technique and those challenging the defendant-physician's judgment; the potential disincentive to practice medicine created by excessive liability and the means used to avoid such disincentive; the legal effect of a license or absence thereof on a physician's potential liability; and the requirement to consult with experts in complex cases.(9)



Anglo-Saxon courts have long recognized two theories of tort liability -- negligence and strict liability.(10) Many legal scholars argue that for several hundred years of English history, as well as the first six or so decades of the American nation, the theory of strict liability dominated.(11) As summarized by Justice Holmes, strict liability theorists held that "man acts at his peril."(12) More specifically, "the whole and sufficient ground for such liability" is that the defendant has caused injury to the plaintiff, intent and fault are irrelevant.(13) The rationale given for this rule was that where the defendant has chosen to act and the plaintiff has done nothing, then "as between the two, the party whose voluntary conduct has caused the damage should suffer, rather than the one who has had no share in producing it."(14) In early case law such notions were epitomized by the lawsuit labeled "trespass" where the plaintiff had only to prove that the defendant directly caused the plaintiff's injuries in order to recover.(15)

In American law, the shift toward a fault-based system, where the defendant's negligent conduct, if any, becomes material to liability, began with the case of Brown v. Kendall.(16) There, Judge Lemuel Shaw held that a plaintiff had to prove the defendant's fault in order to prevail in trespass.(17) Following Brown, negligence gradually supplanted strict liability as the dominant tort theory in American law. Most scholars speculate that a judicial desire to protect America's nascent industries from the costs of excessive liability motivated the shift.(18) Because in a negligence suit the plaintiff must investigate the circumstances of the accident in order to establish the defendant's fault, the plaintiffs ability to prevail becomes more difficult. Such difficulties, therefore, tended to make investment in industry and services less financially hazardous to entrepreneurs and other business people.(19)

Justice Holmes added that, aside from being more conducive to economic initiative, negligence was a more ethical legal theory than strict liability.(20) It is unjust, suggested Holmes, to hold an actor liable for harm resulting from an unforeseeable and unintended chain of events.(21) Liability implies culpability, yet true culpability only exists when dangers foreseen are left unaccounted for or ignored. By making the ability of the defendant to foresee and avoid harm a condition of liability, negligence emphasizes an individual's opportunity to exercise choice with respect to his actions. It thus introduces a moral element into the law.(22)


In halacha, the general rule governing the tort liability of individuals for their acts is adam muad l'olam.(23) Literally translated, the phrase adam muad l'olam means that "man is always forewarned." In other words, man is strictly liable for all harm caused by his actions, or as Justice Holmes stated, "man acts at his peril."(24) Nevertheless, a controversy exists between the Tosafot(25) and Ramban(26) as to whether adam muad l'olam is meant to be applied literally in practice.

Tosafot assert that the concept of adam muad l'olam does not indicate a standard of strict liability.(27) Instead, Tosafot posit a halachic tort system based on fault where liability attaches for all acts of negligence (peshiah) or acts committed under circumstances approximating negligence (o'ness k'ein aveidah).(28) However, man is exempt for damage caused by pure accident (o'ness gamur)(29) or resulting from circumstances approximating accident (o'ness k'ein gneivah).(30)

Tosafot adduce numerous proofs for their position. Among other sources, Tosafot interpret a Talmudic passage in Tractate, Baba Kamma(31) that exempts an unpaid slaughterer who damages a customer's property.(32) Tosafot reason that the only logical basis upon which to exempt the unpaid slaughterer, the rule of adam muad l'olam notwithstanding, must be that the circumstances under which the slaughterer caused damage were o'ness k'ein gneivah, and that such instances of o'ness, therefore, with their low level, if any, of culpability, do not generate liability.(33)

Ramban disagrees with Tosafot, and holds that the concept of adam muad l'olam establishes a tort system of strict liability.(34) How does Ramban contend with all the proofs marshalled by Tosafot? Ramban deflects these by asserting that in all the cases cited the tortfeasor was exempt because of peshiat ha'nizah, or the contributory negligence of the victim. In short, Ramban holds that man is strictly liable for all his actions, except that where the victim was contributorily negligent the tortfeasor has a defense.

The Tosafot's proof from the unpaid slaughterer passage in Baba Kamma(35) presents greater difficulties for Ramban since in that case the victim cannot be said to have contributed in any way to the damage. To this difficulty, Ramban responds that any unpaid professional who damages his client's property never acquires a shem mazik, or the legal status of tortfeasor. Thus, while in general, tort liability still exists even for cases of o'ness (accident), the nature of a professional's work removes him from the status of mazik altogether. Tort law will not apply to him.

Why does an unpaid professional lose the status of mazik? Rabbi Mordechai Bar Ilan proposes two reasons.(36) Perhaps the fact that the professional had authority to work with the item supplies a basis for exemption. In contrast, the average tortfeasor has no authority to become involved with the property of another. Alternatively, Rabbi Bar Ilan suggests that since the professional was working for the benefit of the plaintiff when damage resulted the professional is exempt. Rabbi Yeshaya Blau, answers slightly differently.(37) He asserts that since a professional is not normally prone to err in his work the law presumes that, by the unpaid professional, the misfortune of the customer caused the damage.(38)

Rabbi Mordechai Willig offers a conceptually different approach which takes the view that the unpaid professional's exemption results not so much from the loss of shem mazik, as from Ramban's extension of the concept of peshiat ha'nizak.(39) In short, peshiat ha'nizak does not merely refer to contributory negligence, but also encompasses assumption of risk. In the normal tort case, the tortfeasor unilaterally interferes with the property of a passive plaintiff. ever, in the professional context, the customer, by entrusting his property to an unpaid slaughterer or other such professional, assumes the risk that some damage might result.(40) By initiating the relationship, the customer can be adjudged to have accepted the possibility of damage, and thereby impliedly waived (mechilah) his right to recover.(41) As such, an errant slaughterer or other unpaid professional is exempt.

The gap between the Tosafot's and Ramban's understanding of the rule adam muad l'olam can perhaps be explained on a conceptual level. According to Tosafot perhaps, the primary purpose of tort liability is to deter conduct that may be injurious to others. By compelling defendants to pay injured plaintiffs, the law motivates people to eschew risky actions. If the goal, however, is to deter negligent behavior then it only makes sense to hold defendants liable where they had some power to conform their behavior to a higher standard of care. However, if harm occurs as a result of some accidental or unforeseeable train of events, then holding the defendant liable does nothing to deter blameworthy conduct since the defendant could not have prevented the accident in the first place. In short, Tosafot hold that the ostensibly literal rule adam muad l'olam should be applied according to its underlying purpose, that is, to encourage prudent behavior.(42)

Ramban perhaps holds that the primary purpose of tort liability is to compensate injured parties. Ramban would agree with the Anglo Saxon rationale for strict liability asserted earlier, that is, as between two parties, the one that has acted and caused injury (the mazik) should pay for the passive party's loss. Questions of fault are irrelevant if one assumes that every person possesses the absolute right to be compensated for injuries to his or her person. As such, Ramban holds that the rule adam muad l'olam should be applied literally as the manifestation of a moral Judgment that the active tortfeasor should bear the loss as opposed to the passive victim.

The aforementioned theory would also explain why Ramban denies payment to plaintiffs who were contributorily negligent or assumed the risk of harm. Once a plaintiff is no longer passive, but himself acts and contributes to his own harm, then he has forfeited his right to receive compensation. The moral right to compensation only existed where the plaintiff was the passive victim of the defendant's harm-producing actions.


Ideally, a system for handling medical malpractice claims should accomplish several goals: the expeditious compensation of victims for their injuries; the encouragement of low cost, high quality medical services through effective deterrence and discipline of inferior care; and the fair treatment of competent physicians. Potentially, there are three major tort schemes available for accomplishing these goals -- fault, no-fault, and strict liability.(43)

In a fault system, the injured patient can only recover by demonstrating that his injury was the attending physician's fault, i.e., that the physician acted negligently as compared to a professional standard. In a no-fault system the physician is immune from suit irrespective of fault, and the injured patient is compensated through some alternate payment mechanism such as a fund administered by a government agency. The only requirement to obtain restitution is that the patient establish causation. Strict liability systems are essentially the opposite extreme of no-fault. As in no-fault the plaintiff need only establish causation to recover; fault is irrelevant. However, under strict liability the physician can be sued in court, and if causation is shown, it is the physician (or his insurance company) who must pay. As will be shown, both American law and halacha utilize two of these theories, fault and no-fault, but ignore the third possibility, strict liability, for policy reasons.


Whereas general American tort law shifted between negligence and strict liability, it was almost universally accepted that negligence should govern cases of professional liability, especially those involving claims against physicians. The classic reason given for the unwillingness to apply strict liability in medical tort cases is that allowing patients to recover without having to prove the physician's fault would cause physicians to leave their profession or move to less risky specialties.(44) Consequently, patient-plaintiffs have traditionally sought recovery on either of two negligence-based grounds: ordinary negligence, or medical malpractice.(45)

Whether a complaint will sound in ordinary negligence or medical malpractice "turns on whether the acts or omissions complained of involve a matter of medical science or art ... not [readily understood] by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts."(46) Thus, where a complaint alleges failure of the hospital nursing staff to properly supervise a seriously ill geriatric patient, it may readily be assessed by the jury, based on their common knowledge, whether the nursing staff "exercis[ed] reasonable care to insure that no . . . harm befell the patient."(47) However, where the complaint alleges failure to properly assess or treat a patient's medical condition, then the appropriate action is malpractice.(48) Additionally, because proof of negligence in a malpractice action ordinarily involves an understanding of and familiarity with the proper standards of medical care and treatment, medical malpractice must generally be proven through expert testimony.(49)

The elements required to sustain a malpractice action are those commonly required in ordinary negligence actions.(50) Subsequent discussion will focus on the elements of a negligence action as applied to medical malpractice.

To state a cause of action in medical malpractice the plaintiff must prove the following three elements:

(1) the existence of a duty owing from the physician to the patient

arising within the context of a physician-patient relationship,

(2) a breach of that duty by the physician, and

(3) damage or injury to the patient proximately caused by the physician's


1. The Physician-Patient Relationship

It is an axiom of American malpractice law that a physician has no duty to treat a member of the public at large.52 In Rice v. Rinaldo,(53) the Ohio court upheld a dentist's right to refuse to pull the tooth of an Afro-American. The court stated:

In the absence of statute, a physician or surgeon is under no legal

obligation to render professional services to everyone who applies to

him . . . . Physicians are not public servants who are bound to serve

all who seek them as are inn-keepers, common carriers, and the like.(54)

Because physicians' services are rendered voluntarily, a plaintiff must establish the existence of a physician-patient relationship as the first element of any claim.(55) The relationship constitutes the sole source of any and all duties existing between patient and physician.(56)

The physician-patient relationship is a consensual one, and is created when a patient knowingly entrusts his care to a physician, and the physician knowingly accepts the patient's case.(57) While the relationship may arise out of an express contract, it is usually implied from the parties' conduct.(58)

The existence of a physician-patient relationship is a question of fact. In Lyons v. Grether,(59) a blind person, accompanied by her guide dog, arrived at the defendant's office to keep a scheduled appointment. The defendant refused to treat the woman's infection unless the guide dog was removed. When the woman refused to part with her pet, the defendant denied treatment, evicted the woman and her canine companion, and failed to help the woman locate another physician. The woman sued, alleging that her infection was aggravated as a result of delay stemming from the defendant's refusal to treat her. In upholding the woman's suit, the Virginia court held that the granting of an appointment at a designated time and place for the performance of a specific medical service were facts sufficient to create a physician-patient relationship.(60)

Fact patterns that commonly raise difficult questions as to the existence of a physician-patient relationship include third party requests that a physician examine a patient for a special purpose such as to obtain insurance,(61) emergency room scenarios,(62) pathologist services,(63) and telephone communications.(64)

2. Physician's Duties

The existence of a physician-patient relationship imposes a variety of duties upon the physician. The catalogue of specific duties that devolve upon a physician can be quite extensive,(65) and in a given fact situation the breach of any one of these duties may serve as a basis for liability. The scope of this paper, however, necessitates limiting discussion to a few chosen duties.

Framing a physician's manifold duties in more general form, one may state that, by undertaking a patient's treatment, a physician represents that he:

(1) possesses the skill and knowledge ordinarily possessed by others

within the medical profession or within his specialty,

(2) will apply his skill and knowledge with reasonable and ordinary

care, and

(3) will use his best judgment in deciding upon a course of treatment,

and in applying his skill and knowledge.(66)

3. Bad Results and Errors of Judgment

A physician who breaches any of the three aforementioned duties faces liability for any proximately caused injuries. However, courts unanimously stress that a physician is "not a guarantor of good results"(67) and will not be held liable for an unexpectedly adverse reaction or bad outcome.(68) Moreover, if after a careful examination a physician does what he thinks is best, then such physician will not be held liable for mere errors of professional judgment.(69) In other words, so long as a physician pursues a medically acceptable course of treatment, such physician will be exempt from paying damages even if in hindsight an alternate course of treatment would have avoided injury, or another physician would have recommended a different approach.(70) Of course, some judgment calls may be so clearly unacceptable to other reasonably qualified physicians that they rise to the level of negligence.(71) The crucial test is whether or not at the time the judgment was exercised it met professional standards.

The rationale for exempting physicians from liability in cases of bad results and errors of judgment is twofold. First, imposing liability in such cases would open the door for every patient disappointed with his or her result to locate another doctor who, with the advantage of hindsight, is willing to second guess the decisions of the first physician.(72) Physicians would end up employing those procedures and treatments that they could most easily justify to the jury, rather than those that they perceive are in their patient's best interest.(73) Additionally, courts have also recognized that "much of the functioning of the human body remains a mystery to medical science and that risks inherent in a given treatment may occur unexplainably though treatment is administered skillfully."(74)

A sample case will clarify the aforementioned concepts. In Fallon 7). Loree,(75) the defendant failed to timely diagnose the plaintiffs diabetic retinopathy, and performed needless cataract surgery. The plaintiff alleged that the misdiagnosis would not have occurred if the defendant had examined the plaintiff's eye with an indirect ophthalmoscope rather than a direct one. In response, the defendant's expert testified that 30-409% of the ophthalmologists in the community did not routinely use an indirect ophthalmoscope unless the patient's symptoms or medical records aroused a suspicion of peripheral retinal disease, and that no basis for such a suspicion existed in this case. The court held that based on the state of medical knowledge regarding the use of an indirect ophthalmoscope, a jury could find that the defendant's failure to use the indirect variety constituted a permissible exercise of medical judgment, and not a deviation from accepted medical practice.(76) In retrospect, the physician's judgment was mistaken, and the use of an indirect ophthalmoscope would have saved the patient from needless surgery. Still, that does not mean that the physician was negligent for exercising his judgment not to employ an indirect ophthalmoscope.(77)

Judgment/Mechanical Procedure Distinction in American Law

The line between acceptable medical judgment and deviation from standard practice is simpler to draw in certain medical situations than in others. When a lawsuit challenges the performance of a procedure requiring mechanical skill and precise technique, it will often be relatively easier to prove deviations in performance. In fact, a debate has developed as to whether certain mechanical procedures, such as routine injections, are so commonplace and simple to perform that a bad result in itself should constitute prima facie evidence of negligence, even without the benefit of expert testimony.(78)

In Pipers v. Rosenow,(79) the plaintiff suffered from a bladder ailment. During one visit, the plaintiff experienced a terrific pain in his arm when the physician inserted a needle for the purpose of drawing blood. The pain in the limb grew steadily more severe, eventually necessitating a series of 29 vitamin B-12 injections to repair what turned out to be a damaged nerve. Plaintiff's expert testified only that the injury, neuritis of the radial nerve, was causally related to the venipuncture (blood test) attempted during the earlier examination. In response, the defendant moved to dismiss the complaint on the grounds that while the plaintiff had shown causation, he never proved by expert testimony that the damage resulted from a failure to perform the venipuncture according to accepted medical practice. The plaintiff responded that injections are such a routine procedure that injuries do not occur in the absence of a negligently administered needle. Expert testimony was therefore unnecessary; the jury could infer negligence on its own.

The court first noted that, because "the science of medicine is recondite," a jury will not be equipped with the necessary knowledge and experience to infer negligence "simply as an inference from the circumstances."(80) While some glaring mishaps do lend themselves to an inference of negligence, ordinarily expert testimony is needed to supply the information necessary to evaluate the defendant's skill in performing a procedure.(81) The court then held that, absent expert testimony, a jury did not possess the requisite knowledge to conclude that radial nerve damage could never result from a properly administered needle. …

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