The Torah in Parashat Mishpatim (Shemot 21:18) addresses the case of someone who strikes his fellow, and the fellow does not die, but suffers an injury. In such a case, the Torah establishes, the guilty party must compensate the victim. The Sefer Ha’hinuch lists this obligation as the 49th Biblical command, requiring Bet Din to impose this compensatory payment upon the guilty party. The underlying reason behind this Misva, of course, is that people must be held accountable for the damage they cause, for if not, then anarchy will ensue, as people will act however they wish without regard for the wellbeing of others.
This Misva is assigned to Bet Din. Quite obviously, the person whom Bet Din finds responsible to pay bears an obligation to abide by the ruling and compensate the victim. Both men and women are included in this law, holding a person responsible for damages which he or she caused.
The Gemara specifies five separate payments which one is required to pay if he caused his fellow bodily harm: Nezek, Sa’ar, Ripui, Shebet, and Boshet.
Nezek refers to the person’s loss of value as a result of a permanent injury caused to him by his fellow. If, for example, he lost a limb, Heaven forbid, then there are certain jobs which he is no longer capable of performing. Bet Din therefore assesses the victim’s value if he would be sold as a servant before suffering the injury, and his value now, after the injury, and the guilty party is required to pay the difference.
Sa’ar means “pain,” and it refers here to the amount of money a person would be willing to pay in order to be spared the pain suffered by the victim. This amount must be paid by the guilty party.
Ripui refers to the medical expenses incurred as a result of the injury inflicted.
Shebet refers to the victim’s loss of income. If he lost worktime because of the injury, then the guilty party must pay him the amount of money he would have earned during the time he was unable to work.
Finally, if the victim suffered embarrassment as a result of the injury, then Bet Din makes an assessment of the value of this embarrassment, and the guilty party must pay this amount, as well.
The Gemara in Masechet Baba Kama establishes the rule of “Adam Mu’ad Le’olam,” which means that people are held accountable for damages they caused regardless of whether or not they were caused intentionally. Even if the damage was caused due to circumstances beyond the person’s control, he is nevertheless responsible to compensate the victim. A person cannot claim that he is excused from paying because the damages were caused accidentally; we are all always responsible for our actions.
Halacha makes an exception in the case of a physician who inadvertently causes harm to his patient. Although a person generally bears responsibility even if he damaged inadvertently, a doctor who makes a mistake will operating on a patient, for example, causing him physical harm, is exempt from paying compensation. Some Poskim explain that this law was enacted in order not to discourage people from pursuing a career in medicine. If doctors were held responsible to pay for every mistake made while tending to patients, few people would want to accept this risk, and there would be no physicians. The Sages therefore enacted an exemption for doctors who mistakenly inflict harm while treating a patient. Others explain that in ancient times, physicians received formal authorization from Bet Din to practice medicine, and therefore, since they practiced their profession with Bet Din’s authorization, they were exempt from payment. Today, too, when physicians receive a formal government license to practice medicine, they are exempt from paying for damages they cause, since they treat patients with government permission.
An important exception to this rule is a case of gross negligence. If, for example, a surgeon amputated the wrong limb, or a dentist extracted the wrong tooth, the doctor or dentist would be liable for the damages, since he acted negligently. The exemption applies only when an innocent, understandable mistake was made.
Even when a doctor is exempt from compensation, he might still bear an obligation “Bi’ydeh Shamayim,” as far as G-d’s judgment is concerned. Even if the Bet Din cannot force him to pay, he might still bear accountability and be liable to punishment by G-d since he did, after, inflict harm upon another person, and thus he should pay compensation.
The Torah in a number of places establishes the law of “Ayin Tahat Ayin” – “an eye for an eye,” that one who inflicts physical harm is punished by having done to him what he did to the victim. The Gemara, however, understood that this is not meant literally, and refers instead to compensatory payment. The Gaon of Vilna (Rav Eliyahu of Vilna, 1720-1797) explained that the Sages reached this conclusion by reading the phrase “Ayin Tahat Ayin” in a different way. The word “Tahat” normally means “underneath,” and thus the phrase “Ayin Tahat Ayin” can be understood as alluding to the letters “underneath,” or after, the letters of the word “Ayin.” The letter after an “Ayin” is “Peh”; the letter after “Yod” is “Kaf”; and the letter after “Nun” is “Samech.” These three letters – “Peh,” “Kaf” and “Samech” – spell the word “Kessef” (“money”), and thus the Sages concluded that “Ayin Tahat Ayin” refers to not the literal infliction of injury, but rather to compensatory payment.
Others explain that the phrase “Ayin Tahat Ayin” cannot be understood literally because the harm caused to the perpetrator will never be precisely equal to the harm he caused to the victim. For example, if somebody gored the eye of somebody who was unable to see with the other eye, thus making him completely blind, this damage will not be completely compensated by removing one of the perpetrator’s eyes, as he would still be able to see with the other eye. More generally, no two people’s situations are identical, and thus even if the same injury is inflicted upon the perpetrator, the damages he suffers will not be identical to those suffered by the victim. Necessarily, then, “Ayin Tahat Ayin” must refer to monetary compensation.