The Recent Transformation of Medical Liability in Jewish Law

Masthead Logo DePaul Journal of Health Care Law Volume 14 Issue 3 Spring 2013 Article 3 The Recent Transformation of Medical Liability in Jewish Law Steven F. Friedell Follow this and additional works at: https://via.library.depaul.edu/jhcl Recommended Citation Steven F. Friedell, The Recent Transformation of Medical Liability in Jewish Law, 14 DePaul J. Health Care L. 441 (2013) Available at: https://via.library.depaul.edu/jhcl/vol14/iss3/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Health Care Law by an authorized editor of Via Sapientiae. For more information, please contact , . THE RECENT TRANSFORMATION OF MEDICAL LIABILITY IN JEWISH LAW By Steven F. Friedell* The doctors of an earlier period had good reason to fear the practice of their craft. In the two millennia preceding 1800, most medical remedies were either useless or harmful,' a condition that has improved in modem times.2 Prior to 1800, doctors for the most part did not advocate specific drugs for the direct treatment of specific illnesses. Although there were many schools of thought as to the nature and treatment of disease,' doctors and patients shared the belief that to confront most diseases one needed to help the body regain its natural equilibrium through diet, ventilation, bloodletting, emetics, diuretics, purgatives, and medicines to promote perspiration.4 A common belief, reflected in Jewish sources' and having its . Professor of Law, Rutgers School of Law - Camden. My thanks to Perry Dane, Chaim Saiman, and Yuval Sinai and to the participants at the Jewish Law Association conference at Yale in August 2012 and to my Rutgers colleagues who participated in a faculty workshop for their thoughtful comments on an earlier draft. I am also grateful to Dr. Andrea Baldeck and Robert Hicks for their insights into the history of medicine. 1. Charles E. Rosenberg, The Therapeutic Revolution: Medicine, Meaning, and Social Change in Nineteenth-Century America, in THE THERAPEUTIC REVOLUTION: ESSAYS IN THE SOCIAL HISTORY OF AMERICAN MEDICINE 3-8 (Morris J. Vogel & Charles E. Rosenberg eds. 1979); Maimonides thought that many acts of malpractice did not result in harm but that the majority of people die as a consequence of medical treatment, "because of the ignorance of most physicians about Nature." Moses Maimonides' Two Treatiseson the Regimen of Health, 54:4 n.s. TRANSACTIONS OF THE AM. PHIL. SOC'Y 21 (1964). 2. Serious problems have persisted. See OTIS WEBB BRAWLEY WITH PAUL GOLDBERG, How WE Do HARM (2011) (examples of harm by overtreatment, experimental treatment, and inadequate treatment); SIDDHARTHA MUKHERIEE, EMPEROR OF ALL MALADIES: A BIOGRAPHY OF CANCER 197 (2010) (radical mastectomies that were the most common treatment for breast cancer for most of the twentieth century were either useless or unnecessary); Elisabeth Rosenthal, Let's (Not) Get Physicals, N.Y. TIMES, June 3, 2012, Sunday Review at 1, available at http://www.nytimes.com/ 2012/06/03/sunday-review/lets-not-get-physicals.html ("annual physical exams - and many of the screening tests that routinely accompany them - are in many ways pointless or (worse) dangerous, because they can lead to unnecessary procedures"); Joe Klein, The Long Goodbye, 179 TIME, no. 23 June 11, 2012, at 23-24, availableat http://www.time.com/time/magazine/article/ 0,9171,2116137,00.html (President of Geisinger Health System estimates that "40% of what doctors and hospitals do is wasteful"); Dan Negoianu & Stanley Goldfarb, Just Add Water, 19 J. AM. SOC. NEPHROLOGY 1041 (2008) (debunking the myth that under normal circumstances a healthy person should drink eight to ten glasses of water per day to remove toxins, improve kidney function or for cosmetic reasons). 3. See generally C.G. CUMSTON, AN INTRODUCTION TO THE HISTORY OF MEDICINE (1926). 4. Rosenberg, supra note 1, at 6. "The effectiveness of the system hinged to a significant extent on the fact that all of the weapons in the physician's normal armamentarium worked: 'worked,' that is, by providing visible and predictable physiological effects..." Id. at 8. 5. See also Otzar Hamidrashim (J.D. Eisenstein) Midrash Temurah ch. 1. See also Rabbi Menahem ben Aaron ibn Zerah (c.1310-1385), Tzeidah La-derekh 1:1:7 (living things are made of four elements, namely 442 DEPAUL JOURNAL OF HEALTH CARE LAW [VOL. 14.3:441 roots in early Greek medicine, was that the body's four humors needed to be kept in balance.6 Both Jews and non-Jews believed that it was God's will when medicine failed to cure a patient.' In 1860 Dr. Oliver Wendell Holmes said of the medicine of his day: Throw out opium, which the Creator himself seems to prescribe, for we often see the scarlet poppy growing in the cornfields, as if it were foreseen that wherever there is hunger to be fed there must also be a pain to be soothed; throw out a few specifics which our art did not discover, and it is hardly needed to apply; throw out wine, which is a food, and the vapors which produce the miracle of anaesthesia, and I firmly believe that if the whole materia medica, as now used, could be sunk to the bottom of the sea, it would be all the better for mankind,-and all the worse for the fishes. But to justify this proposition, I must add that the injuries inflicted by over-medication are to a great extent masked by disease.8 Although doctors could treat common wounds and set fractures, the placebo effect played a large role in many patients' recovery. 9 The state of medieval surgery was far worse. It was not a branch of medicine and was practiced by people with little training, often as a desperate last resort.' 0 From the Talmudic era through the Middle Ages, astrology played a role in medical treatment." Perhaps the best that can be said about it is that by restricting treatments to certain times or days, it prevented some earth, water, air, and fire); id. at 1:1:9 (the four humors correspond to the four elements); id. at 1:3:3-11 (a description of six factors contributing to health or disease corresponding to Galen's six non-naturals plus washing and rinsing which he considers to be a non-compulsory factor). 6. CUMSTON, supra note 3, at 159-63. 7. Compare Rosenberg, supra note 1, at 10-11 (quoting a nineteenth-century doctor) with Rabbi Jehiel Michal Epstein, Arukh Ha-Shulihan Yoreh De'ah (late nineteenth- early twentieth-century) 336:2; Rabbi Joshua Falk (1555-1614), Perisha Tur, Yoreh De'ah 336 n.7; Responsa Besamim Rosh 386. In early nineteenth-century America, beliefs in divine providence played a role in discouraging patients from suing for malpractice and led juries to exonerate doctors. K.A. DE VILLE, MEDICAL MALPRACTICE IN NINETEENTHCENTURY AMERICA 121-29 (1990). 8. Oliver Wendell Holmes, Currents and Counter-Currents in Medical Science, in OLIVER WENDELL HOLMES, MEDICAL ESSAYS 1842-1882, 202-03 (1891) (footnote omitted). Dr. Holmes regre (...truncated)