Appointment of medical experts in damage claims under the Tort Ordinance and the Road Accident Victims Compensation Law
The matter of determining disability is one of the most important issues in the discussion of damage claims for physical injuries in Israel, whether according to the Tort Ordinance [New Version] or under the Road Accident Victims Compensation Law, 5735-1975, or under any other law (such as the Insurance Contract Law, 5741-1981, and insurance policy claims). In this article, we focus on disability and the appointment of medical experts in damage claims filed under the Tort Ordinance or under the Road Accident Victims Compensation Law. The medical determination of whether the victim has any disability following a particular accident will decide the fate of a case in terms of the scope of damages awarded, if any.
Appointment of medical experts in claims under the Tort Ordinance
This is a general arrangement. A claimant who claims disability under the Tort Ordinance must attach one or more medical opinions in the relevant area of the alleged disability.
The obligation to attach a medical opinion in a civil claim, if a disability claim is made, is set in the Civil Procedure Regulations, 5779-2018. The claimant must attach a medical opinion, which attests to the medical disability of the claimant following the alleged accident (“disability” here may stand for multiple “disabilities” and the same applies to “medical opinion”). Failure to attach an opinion to the statement of claim means that the claimant has no disability claim and cannot attach an opinion at a later stage unless the court orders otherwise for reasons to be recorded.
In the statement of defense, the defendant should submit a counter opinion, otherwise the opinion on behalf of the claimant will remain the only undisputed opinion, and the court will usually adopt it. If there is a difference between the opinions, the court will appoint an expert on its behalf, to resolve the medical issue and determine the percentage of disability, if any. In the appointment order, the court will also resolve the matter of the expert’s fee, which is usually divided between the parties in equal shares, unless one of the parties claims its inability to pay said fee, after submitting a reasoned motion supported by documentation showing a lack of financial ability.
After receiving the opinion, the parties can send questions to the expert, but first they must ask the court for permission to do so, including the specific questions they may ask the expert. If any of the parties wishes to interrogate the court-appointed expert, they must inform the court and a hearing will be scheduled for the expert’s questioning.
Appointment of medical experts in claims under the Road Accident Victims Compensation Law
Here the situation is a little different – this is a special arrangement for traffic accidents. In the Road Accident Victims Compensation Law and the Experts Regulations, a special arrangement was established for damage caused by a car accident, according to which the court is the one who appoints one or more experts, after the plaintiff presents alleged evidence of damage in the requested area. In case of a car accident, a lawsuit must be filed according to the Road Accident Victims Compensation Law, and if there is a claim of any medical disability, the claimant must submit a request for the appointment of a medical expert in the area of the alleged injury, which will be submitted simultaneously with the filing of the claim, by virtue of Section 6a of the Road Accident Victims Compensation Law, and the Road Accident Victims Compensation Regulations (Experts), 5777-1986.
Unlike the general arrangement previously mentioned, here the claimant is prohibited from attaching a medical opinion to the claim, as part of the evidence, and may only submit medical documents for the claimed damages and the requested field of medicine.
After submitting the motion to appoint one or more experts, the opposing party, and usually the insurance company, can respond to the motion, and then the court will decide, after hearing the motion in court or according to the documents before the court, whether to appoint a medical expert or not, the identity of the expert(s), as well as the fee thereof and who shall bear it (usually the insurance company – the defendant with the “deep pockets”).
After the opinion has been prepared by the medical expert, the latter will submit it to the court. After that, each party can send clarifying questions to the expert about the opinion, without having to get permission from the court, unlike the general arrangement above. If the clarification answers were not enough or did not convince a certain party, said party may summon the expert for questioning in court.
In fact, a medical expert appointed by the court acts as the long arm of the judiciary in determining the medical question, and the expert’s determination helps the court resolve the issue of disability. Nevertheless, under the law, the court has the final word on the medical question. However, the court will usually refrain from interfering in the medical opinion except in extreme cases stipulated in the caselaw. This is true for the general arrangement as well as the special arrangement for traffic accidents.
Section 6b – Determination under law:
In the Road Accident Victims Compensation Law there is a section that regulates a special case regarding the question of disability in traffic accidents, and which was enacted within the framework of section 6b, and states as follows:
6b. Determination of a disability degree according to another law
A determination under law of any level of disability as a result of injury caused in the same road accident prior to the hearing of evidence in a claim under this Law, will also apply for the purposes of claim under this Law; however the Court may allow the parties in the claim under this Law to submit evidence to contradict this determination, if it is convinced that such permission is justified by special reasons that will be recorded.
In fact, the section states that if a determination of disability has been made under another law, such determination will also be binding according to the Road Accident Victims Compensation Law, and the result is that the claimant is precluded from requesting the appointment of an expert on behalf of the court. The common example of this is in the case of a car accident which is also a work accident; where a determination was made on behalf of the National Insurance Institute’s committees regarding the victim’s disability, said determination will also be binding in the Road Accident Victims Compensation Law case, and as mentioned, the claimant is precluded from requesting the appointment of an expert by the court.
Nevertheless, this section allows the claimant to submit a request to bring evidence to contradict the National Insurance Institute’s determination (which is the determination under law), and following the defendant’s response, the court will rule on the request and decide whether to allow the claimant to bring evidence to contradict the same determination under law.
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