Is a Surgeon Liable for Malpractice?

Rabbi Yitzchak Grossman

Question:  A surgeon is operating on a patient and, during surgery, inadvertently caused damage to the patient. Is he liable for this damage? 

Answer: The basic halachic rule of medical malpractice is that if a doctor is properly trained, licensed and certified, and has communal acceptance to practice, if something goes wrong accidentally during a treatment, he is exempt from any liability in dinei odom, but liable in dinei shomayim. This means that beis din cannot obligate him to pay any compensation, but he has a moral obligation to pay. Additionally, if he accidentally kills a patient, he has an obligation to go into golus (exile). 

Question:  Would the halacha be different if he damaged an organ that he was not supposed to be operating on?

Answer: The Shevet Halevi discusses a similar case.

The Tosefta says that a doctor is exempt from liability in dinei odom unless he does something that is more than what he should have done. It is not 100% clear what this means, but the Shevet Halevi suggests an example of a dentist who drills the wrong tooth. Since he should never have been working on this tooth at all, he is liable to pay even in dinei odom. It would seem that the same logic would apply to a doctor who damages a different organ than the one he was supposed to be working on.