Q. Does Jewish law allow a malpractice action against a doctor?
A. Judaism has a high opinion of doctors but recognises the danger a negligent doctor can cause. Hence Ben Sira says, “Honour the physician… for the Lord has created him” (Ecclesiasticus 38:1), but the Mishnah sadly adds, “The best of doctors is destined for Gehinnom” (Kidd. 4:14). This mishnaic statement is too sweeping to be taken literally, since halachah insists that a sick person must call in the doctor and about 50% of the rabbinic scholars of the Middle Ages were physicians. What the Mishnah is attacking is doctors who practise their art in a negligent or mercenary way or both.
The authoritative responsa work, “Tzitz Eliezer”, by Rabbi Eliezer Yehudah Waldenberg, points out that the modern doctor is not working independently but requires to be authorised and registered by the state, and whilst registered he is assumed to be competent and to work according to accepted professional standards. However, if there is evidence of individual error such as administering the wrong medication or giving an injection in the wrong place, a doctor is endangering his patients, risks losing his licence to practise, and is liable for damages (Tzitz Eliezer 4:13, summarised in “Jewish Medical Law” by A. Steinberg, translated by D.B. Simons, 1980, part 10, chapter 5).