Can a Doctor Be Sued for Malpractice?
Question
Can I sue my doctor for mistaken diagnosis or treatment.
Answer
Shalom!
Thank you for your question.
As a general rule, a professional who is paid for his services is generally liable for damages that result from following his advice. Conversely, a professional who makes a mistake but was not paid for his services will generally be exempt from having to pay for damages that result from following his advice.
Historically, however, a doctor was an exception to this rule and was almost always exempt from professional liability. The rabbis made this exception so that doctors would not hesitate to treat those who are ill. It is explained that perhaps doctors would hesitate to treat people or offer lifesaving assistance due to the fear that they would be sued if something goes wrong. As a result of this enactment which protects doctors, a doctor who is able to treat one who is ill is required to do so. Indeed, a doctor who refuses to treat someone is considered to be a murderer.
Nowadays, however, when doctors all have malpractice insurance, and as such, suing doctors for mistakes has become normative, halacha allows one to do so, as well.
Source
Bava Kama 99a; CM 306:6; YD 336:1 with commentaries