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6 Chi.-Kent J. Int'l & Comp. L. 1 (2006)

handle is hein.journals/chkjicl6 and id is 1 raw text is: MEDICAL MALPRACTICE IN JEWISH LAW: SOME PARALLELS TO EXTERNAL NORMS AND PRACTICES STEVEN F. FRIEDELL* Abstract: This article raises the possibility that the Jewish law of medical malpractice may have been influenced by the medical theories and liability standards of surrounding cultures. After reviewing the role of medicine in the Biblical and Talmudic periods, the article focuses on the medieval sources, and concludes with a review of developments in the twentieth century. The article discusses several parallel developments and suggests that one may be able to gain a better understanding of the medieval Jewish sources by understanding the medical theories and practices of that time, the role of the community physician, and the increased professionalization of medicine. The twentieth-century sources may indicate a desire to achieve results that parallel those of secular courts. Although the sources do not address the issue of external influence, they suggest that it is possible that external norms and practices may have played a role, if only indirectly, by shaping people's expectations. INTRODUCTION If a dentist drilled on the wrong tooth or if a doctor injected a patient with a medicine that was other than what the doctor intended, one would not be surprised if an American court would hold the dentist or the doctor liable for malpractice,' such that the patient would be able to recover for pain and suffering, medical expense and lost wages.2 That such is the case in twentieth-century rabbinic law may seem equally unsurprising, except that the rabbinic responsa * Professor of Law, Rutgers University at Camden. My thanks to Arnold Enker, Gilad Gevaryahu, Michael Lewyn, and Shimon Taub for their helpful comments on an earlier draft. The Babylonian Talmud consists of two parts, the Mishna, which was compiled in Palestine about the year 200 of the Christian Era, and the Gemara, which was completed in Babylonia about 300 years later. The other main sources used in this Article are four codes: the Mishneh Torah written by Maimonides (circa 1135-1204) the Tur written by Jacob ben Asher (circa 1270-1343), the Shulhan Arukh written by Joseph Caro (circa 1488-1575), and the Arukh Ha-Shulhan, written by Jehiel Michal Epstein between 1884 and 1907. The Talmud and the medieval codes are heavily supplemented by commentaries. The most important Talmudic commentary is by Rashi (circa 1040-1105). Another important kind of source used in this Article is the responsa literature, the case law of Jewish jurisprudence. This Article discusses responsa from the medieval and modern periods. Quotations from the Talmud are based on Isidore Epstein, The Babylonian Talmud (1935). References to tractates in the Babylonian Talmud are indicated by prefacing the name of the tractate by a B. Sections of the Mishnah are indicated by prefacing the name of the tractate by an M. Unless otherwise indicated, translations of other works are mine. 1 See Hubbard v. Reed, 168 N.J. 387, 774 A.2d 495 (2001) (affidavit of merit not required in suit for extraction of wrong tooth because jury can determine fault without expert's assistance); Steinke v. Bell, 32 N.J. Super 67, 107 A.2d 825 (1954) (jury can determine for itself that dentist's extraction of wrong tooth was malpractice); McClees v. Cohen, 158 Md. 60, 148 A. 124 (1930)_(same); see also Brownv. Meda, 74 Md. App. 331, 342, 537 A.2d 635, 641 (1988) (giving examples of where res ipsa loquitur can be applied in a medical malpractice case). 2 See, e.g., McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372 (1989). 6 Chi-Kent J. Int'l & Comp. L. 1 (2006).

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