Q: What is the halachic perspective on malpractice liability?

A: In general, a paid professional who damages is liable. If he served gratis, he is exempt if properly certified and not guilty of negligence (C.M. 306:4). An exception is made, however, for an officially appointed dayan who erred, since he has a mitzvah to judge. We consider his mistake an oness; he is exempt, even if paid (C.M. 25:2).

This applies also to a medical practitioner, who erred in the mitzva of healing. Thus, if officially licensed, he is legally exempt, but is nonetheless liable b’dinei shamayim. If he acted responsibly, yet the procedure was unsuccessful, he carries no liability whatsoever (Y.D. 336:1; Aruch Hashulchan Y.D. 336:2). Some also exempt the practitioner completely if he did not actively injure, but only prescribed inaccurately, as that is unintended grama or garmi (see Pischei Choshen, Nezikin 12:[17]).

However, if the professional has malpractice insurance, the company is liable to pay whatever is required by law. This is a contractual obligation of the insurance company to the professional and his clients, even if the court ruling is not in accordance with Torah law (Rav Z.N. Goldberg, Techumin, 19:322).