Bava Kamma 84
Our Gemara on Amud Aleph discusses the process by which we determine compensation for a debilitating injury inflicted upon a child. The Talmudic jurisprudential method for evaluating disabling loss and damages to a person is by considering the value of this person if he were sold as a slave, assessing what his prior market value versus his current value with his disability. Since such an appraisal is demeaning, the Gemara records an incident where the father of the child objected to submitting his child through this process. (In a culture that relies on testimony to establish lineage, it was a legitimate concern that years later an inaccurate recollection could lead to mistaken allegations about the child having been a slave.) The judges countered with an objection that this father’s fears of propriety and status would deprive his son of the financial compensation that he deserved from the damager since no assessment would be made. The father’s response was to reassure the court that when his child matures, he would make sure to personally provide his son with the deserved compensation.
This Gemara brings to mind the challenges parents face when deciding what kinds of help to seek for a disabled child. If a child has a mild disability, mental or physical, the parents may be reluctant to seek clinical treatments that could stigmatize the child, or even the extended family. When the danger or disability is so strong or obvious, it is less of a challenge, because the urgencies overcome the resistance.
However, some scenarios are more murky when the condition is on the border between severe to moderate. Should a child with moderate to severe depression be treated inpatient? Should a child with moderate learning disabilities stay in a mainstream school, or in a more supportive environment?
There are no easy answers, but our Gemara reminds us that a parent’s fears about stigma does not reduce the obligation to make sure the child receives his due. The judges only accepted the father’s objection because of his pledge to take responsibility for his disabled child’s compensation due to him upon maturity. We also must consider that in the Gemara’s case, this child could receive the compensation later on in life. However, regarding certain developmental aspects of human growth, such as academic and social functioning, opportunities and windows close for a child, and are much harder to restore later on in life.
Bava Kamma 85: Healing Attitudes
Should a person inflict damages upon another person, he is also liable to also pay his medical bills, aside from the loss of productivity, lost wages, pain and humiliation. Our Gemara on Amud Aleph discusses a number of scenarios where the damager might seek to minimize his losses by economizing, such as offering to heal the person himself if he has the medical skills, or to use a friend who would provide the service as a courtesy. These cost-cutting suggestions are rejected out of fear that this more “haimish” form of service will be of reduced quality.
The Rosh (Hachovel, siman aleph) observes, “The person who is ill must feel a comforting presence from the healer.” In other words, the bedside manner of the physician is important to the healing process. According to researcher Debra Roter, there seems to be no correlation between malpractice claims and any retrospective measurement of clinical quality. Meaning to say, malpractice claims seem to have little to do with the actual number of errors or other indicators of quality medical care. It appears that most claims do not come from the patient’s anger over the failed procedure, but rather frustration with the level of communication with the doctor. Post facto analysis shows that litigants often complained about not being properly warned, not having their questions answered and not being treated with respect. Yet doctors who had better rapport and committed similar medical errors were not sued. The patient may be likely to forgive poor treatment outcomes so long as they felt good with the doctor. Selecting from a random group of physicians whose conversations with patients were recorded, researchers found common factors and correlations:
“The sued doctors had shorter visits by almost three minutes, used less partnership-type exchanges (i.e., asking for the patient’s opinion, understanding of what was said and expectations for the visit, showing interest in patient disclosures, and paraphrasing and interpreting what the patient said), engaged in less humor and laughter, and were less likely to orient the patients as to what to expect in regard to the flow of the visit than physicians who had never been sued.”
Additionally: “Surgeons judged to have more dominant voice tone [in the recordings] were almost three times as likely to be in the sued group than others, while the surgeons whose voice tone was rated as conveying concern and anxiety were half as likely to be in the sued group.”
It is easy to hypothesize that subjective feelings of satisfaction stemming from a positive bedside manner, lead to improved medical outcomes. The element of hope that comes from another person’s concern and commitment, aside from a greater receptivity to the treatment, thus increasing compliance with various recommendations, is as significant a part of the treatment as the medicine itself.
