Q: I had terrible pain in my tooth, and I went to a dentist who determined that I needed a root canal. I then visited a specialist who charged me $2,000 to do the root canal and seal it with a crown. Two weeks later, the awful pain returned. When I went back to the specialist, he said that the pain was emanating from the tooth adjacent to the one he had worked on, and that I should go to my regular dentist to deal with it. My regular dentist could not find anything wrong with the adjacent tooth, so he sent me to a top specialist. In the regular x-rays, he couldn’t find any problem, but when he did some more advanced imaging he found that the specialist who did the root canal had not dealt with all of the infected nerves in the tooth, and it had to be redone.
When I returned to the specialist and showed him the advanced images, he admitted that his treatment had been inadequate, and said that he would redo it. I told him that I no longer felt confident in his skills at that point and I wanted my money back so I could have a different specialist redo it.
He insists that he isn’t required to give me back money, only to fix the tooth.
Who is correct?
A: One of the 5 payments a person is obligated to remit to someone he injured (chovel) is ripui (paying the medical bills to cure him). The Gemara (B. K. 85a, cited as halachah in Sma 420:24) teaches that if the chovel is a doctor, and he tells his victim that he will cure him, the victim is entitled to reject the offer with the claim, “To me, you are like a lion waiting in ambush.” The Rosh (B.K. 8:1) explains that a person who is ill must feel comfortable with his doctor.
Some Poskim limit this halachah to cases in which the chovel inflicted the injury deliberately or caused it through negligence, but if he caused it by mistake then the victim may not claim that he doesn’t trust him as a doctor (Chashukei Chemed, Kesubos 105b, quoting Harav Elyashiv, zt”l; cf. Shu”t Divrei Malkiel 3:44, who writes that from the simple reading of the Gemara and the Poskim it seems that it applies to all cases of injury). In your case, all Poskim would agree that the dentist’s having failed to perform the root canal properly the first time would cause the patient to lose confidence in him, so he may not compel you to accept further treatment from him.
In truth, however, regardless of the above dispute, you are entitled to a full refund from the dentist, because your reason for demanding the refund is not due to his having injured you and now being obligated to heal you. Rather, your claim is that you paid him in error, because you assumed that he actually healed you, and since he didn’t, you were not required to pay him. He is therefore required to refund your money, and you do not have to agree to have him treat you further (see Shulchan Aruch, C.M. 232:5).
Even if you had prepaid for the root canal, the dentist still has no right to keep your money just because he is willing to redo the treatment. The reason some medical offices demand prepayment is to ensure that the client doesn’t leave without paying or claim, after receiving the treatment, that he doesn’t have money. Even if there had been a contract, of sorts, in which the dentist obligated himself to perform the root canal in exchange for the prepayment, he is not entitled to claim that he is now ready to fulfill his obligation, because that agreement required him to complete the treatment satisfactorily the first time. His failure to do so renders the agreement (along with any kinyanim that were made to formalize it) null and void, and you are entitled to a full refund.
