Question
I run a dental clinic. Patients pay our clinic a monthly charge, which entitles them to dental care by one of our dentists for a small fee. One patient needed many fillings and chose one of our dentists to fill his teeth. The dentist filled several teeth and scheduled an appointment for two weeks later to continue. However, when the time came the dentist couldn't make it and rescheduled the visit for two weeks later. This happened three times. When the patient finally returned, two cavities had gotten much deeper and required root canals. The patient wants to put in a claim with our insurance for damages since we carry malpractice insurance for our dentists. I told the patient that he can choose another dentist who works at the clinic who will do the root canal for no additional cost. The patient prefers to put in a claim against the insurance company for malpractice since he thinks he will get more money. However, this will cause our premiums to rise. Can I prevent him from claiming against our insurance?
Answer
We will investigate whether according to Torah law the dentist or you owe anything to the patient. Since the dentist didn't do a damaging act, and only caused damage by failing to take care of the problem in a timely manner, the only grounds for liability are the laws of garmi. Therefore, we have to first examine if this type of causative damage falls into the category of garmi or not.
The reason it is questionable whether the dentist's postponements constitute garmi is because many Rishonim maintain that only actions constitute garmi, but not inaction. A salient case in the Gemara (BB 2A) is a situation where one neighbor had a vineyard and his neighbor grew grain. If the vineyard and grain are separated by a fence there is no issue of kilayim but if there is no fence the grain will become osur behano'o-worthless. The Gemara cites a braiso that rules that if the fence gets a hole, beis din warns the owner of the vineyard to mend the fence. If he fails to comply with beis din's warning and the vines spread to the neighboring field and the grain becomes valueless, the owner of the vineyard is liable for the grain owner's loss.
The Rishonim discuss why the owner of the vineyard is liable. The Rama writes in his commentary that we deduce from this ruling that one is liable for garmi even if the cause of the damage was inaction. He deduces from here, and his opinion is cited by the Tur (CM 157) and the Ramo (155, 44), that if one neighbor leaves his property open in spite of being warned by his neighbor to fence in his property to ward off thieves, he is liable if thieves stole from his neighbor due to his inaction.
The Rosh disagrees with the Rama and writes (BK 9, 13: BB 2, 17) that one of the criteria for a situation to be classified as garmi is action. He explains why the owner of the vineyard is nonetheless liable. He says the reason is not for failing to mend the fence per se, but because his decision to leave the hole in the fence and allow the branches of his vine to be intermingled with his neighbor's grain is considered an action on his part. Similarly, the Rashbo (res 3, 107) writes that the reason the vineyard owner is liable is because his property damaged his neighbor's grain and one is liable for damages that are done by his property.
Many other Rishonim and poskim take sides on this question. Since there is no clear-cut decision on this issue, the issue has the status of a sefeiko dedino-an undecided legal issue. The Maharsham, (3, 96) citing the P'nei Yitzchok (res. 24), rules that one cannot make someone pay for garmi that results from inaction. In your case, if the patient sues in beis din, beis din will rule that you are not liable but that the dentist, and consequently you, are chayav bedinei shomayim-liable in the heavenly tribunal, and therefore you should pay.
There is a second issue that must also be considered. The Gemara learns from pesukim in the Torah that a person whose actions damage a person is liable for five types of damage: loss of value of the injured person, pain, medical expenses, disability and embarrassment. In your case the only damage that was suffered by the patient is medical expenses, known as ripuy. The Gemara never discusses whether one is liable for damages besides loss of value if the damage is only causative, even if the damages are classified as garmi. (There is generally no liability for causative damages if they are not garmi.)
The Ketsos discusses this issue twice. In one instance (308, 2) he explains a ruling of the Rama that is cited by the Tur that if someone placed a load on a porter that was beyond the porter's capability and caused damage to the porter, he is only liable for the porter's loss of value but not for other expenses such as disability or medical expenses. The Ketsos explains that the reason is that the damages that the loader did to the porter are classified as garmi and the Rama maintains that when one damages causatively, even if the damages are classified as garmi, the one who damaged is not liable for anything besides loss of value.
The Steipler (BM 47) explains that the rationale for the Ketsos is that when one causes damages, it is similar to one whose property damaged, since the one who caused the damage only set up the damages but didn't actually do them. Therefore, just like when one's property, such as an animal, damages, one is only liable for loss of value and not for the other four damages, so too when one damages by garmi he is not liable for anything besides loss of value.
In a second place (333, 2) the Ketsos discusses an explanation of Tosafos and says that Tosafos maintains that one is liable for disability even when the damage was only causative.
Thus, according to the Ketsos there is a dispute among the Rishonim whether one who damages in a causative manner that is classified as garmi is liable for medical expenses.
Thus, even if the damages of the dentist are classified as garmi, there is a dispute if he is liable for the added medical costs.
A third factor to consider in deciding if the dentist is liable is the general nature of the obligation for medical expenses.
When one damages a person or property, we determine the loss of value of the damaged object and that is the amount that the one who damaged owes. Whether the owner of the damaged object wishes to repair the damaged object or not, the one who damaged must compensate him for the loss of value as a result of the act of damage. Even if immediately following the damage the object was completely destroyed, the one who damaged must pay for the loss of value that resulted from his act of damage.
However, many Acharonim say that the compensation that the one who damaged must pay for medical expenses is different.
One Acharon who maintains that the payment for ripuy is different from ordinary damages is the Kovetz Shiurim (Kesubos 218). He notes that the Gemara (Gittin 12) rules that if one damages an eved kena'ani-a non-Jewish slave, he must pay the ripuy to the slave himself. He asks that since whatever the slave owns belongs to his owner, the payment should go to his owner just like the payment for loss of value when one damages a slave goes to the slave's owner and a slave finds a lost object it automatically goes to his owner. From this he deduces that the payment for medical expenses is not an ordinary monetary obligation but an obligation to heal the injured person. Based on this, he rules that if one damages someone and causes him medical expenses, but before the victim begins the healing process he passes away, his heirs do not inherit the payment for medical expenses.
Another Acharon who maintains that the nature of the obligation is to heal the injured is the Chazon Ish (BK 6, 3 beg. wo. U'Venesevos). His proof is from the ruling of the Gemara (BK 85A) that if the victim asks to be paid in cash, the one who damaged can insist that he wants to pay the doctor and not give him money. From the fact that the Gemara's reasoning applies only to ripuy he deduces that for all other damages the obligation is a monetary obligation and not an obligation to repair the damage.
The Dibbros Moshe (BK 57, Anaf 2) also discusses the possibility that the liability of the one who damages is to heal the injured person and not a monetary obligation. He proves this from the discussion in the Gemara (BK 85A) about a doctor who damages who says that he can heal the injury himself. The Gemara says the injured person can refuse and claim that he is not comfortable with being treated by the one who damaged him. The Gemara also discusses where the one who damaged says that the injured should use a doctor who does not charge. The Gemara says the injured can refuse because he can claim that one who does not charge does not do quality work.
Rav Moshe notes that if the obligation to pay repuy is an ordinary monetary obligation, then the one who damaged must pay the obligation and has no say in how the victim repairs the damage. Therefore, since the Gemara does take the injured person's claims into account, it seems that the obligation to pay ripuy is not a monetary obligation but an obligation to heal the victim.
Rav Moshe says that perhaps after the Gemara turns down all the suggestions of the one who damaged, the result is that it is a monetary obligation. Rav Moshe concludes that it is a dispute in the Gemara among the Amoraim and that the halacha is that it is an obligation to heal. Rav Soloveichik in in the Reshimos Shiurim (BK 85A), brings the same proof as Rav Moshe to conclude that the obligation to pay ripuy is an obligation to heal and not a monetary obligation.
From the Gemara cited by Rav Moshe we see that the one who damaged cannot demand to be the one to treat the victim because the victim can claim that he does not have confidence in him. However, you are offering another dentist who has the proper credentials. Therefore, you are fulfilling your obligation, if there is one, to rectify the damage caused by the treating dentist.
In conclusion: The obligation of the dentist (and consequently you as his employer) is at most an obligation to heal the patient, which you are offering. Therefore, the patient has no further claim against you in Torah law. Thus, he may not file an insurance claim because he is not allowed to do something that will result in him receiving more than he is entitled to under Torah law at another Jew's expense.
