In this article we provide a broad overview of the problematic legal situation and the options facing victims of medical malpractice.
What is a medical malpractice claim?
A medical malpractice claim is a claim that is filed in response to damage caused by the negligence of a medical practitioner.
According to section 35 of the Torts Ordinance [new version], 1968, medical malpractice is defined as the provision of medical services by a medical practitioner who did not exercise the necessary level of caution or skill, which a reasonable medical practitioner would have exercised. As a result of this malpractice, harm was caused to the patient that would not have occurred if he or she had received the correct, careful and skilled treatment that a patient is entitled to. A reasonable medical practitioner according to this definition is a reasonable person in the same profession as the person who caused the harm.
The definition of “practitioner” includes, among others: a physician, dentist, intern, nurse, midwife, psychologist, occupational therapist, physical therapist, speech therapist, nutritionist-dietitian, and clinical criminologist (Section 2 of the Patient’s Rights Law, 1996).
What types of medical malpractice are there?
- Malpractice in diagnosis or medical treatment.
- Malpractice in pregnancy and childbirth.
- Malpractice in plastic surgery.
- Malpractice in mental health care.
- Malpractice during nursing care.
Which institutions can be sued?
In addition to suing the medical practitioner who was negligent — the “practitioner in the field” –a patient can also sue the medical institution itself. This may be either the institution where the practitioner is employed or the one that referred the injured party to the practitioner.
“Medical institution” as defined in the law is a hospital or clinic. The definition includes, with certain limitations, the medical corps of the IDF, the medical system of the Israel Police and the medical department of the Prison Service.
Who has the right to sue?
Usually, the victim/injured party will be the plaintiff. However, when the victim is a minor, the parents may sue on their child’s behalf. Alternatively, injured minors can claim their rights themselves when they turn 18. Someone who is defined as legally incompetent may claim their rights with the help of their legally appointed guardian (Section 38 of the Legal Competence and Guardianship Law, 1962).
In cases where the victim dies as a result of the medical malpractice, the right to sue passes to their estate and their dependents, which usually means their spouse and children (Section 19 of the Tort Ordinance).
What kind of damage must be proven?
- Physical damage — literally. Includes disability, death, and shortened life expectancy.
- Psychological damage — including pain and suffering, trauma and even “loss of enjoyment in life”. It is possible to sue for psychological damage that was caused even in cases where it does not accompany the physical damage that occurred.
Although court rulings have established rules for calculating compensation in this type of lawsuit, it is difficult to know in advance what the amount of compensation will be, because many factors may affect it.
Usually, the victim is compensated for the physical damage and the psychological damage caused to them, including the future expenses that they will incur because of the damage, the damage to their functioning, their earning capacity and their life expectancy.
Usually, expert opinions are required in order to prove the level of damage caused.
Expert opinions as a basis for a malpractice claim:
In most cases, in order to prove the damage and the causal link between the damage and the negligent act, it is required to obtain an opinion from an expert in the same field of medicine in which the event of malpractice took place. However, in exceptional cases the court may take into consideration the fact that the victim could not obtain an expert’s opinion and exempt them from this requirement.
Usually the plaintiff chooses the expert they prefer to examine them. However, the court is authorized appoint an expert on its behalf (Articles 127 and 130 of the Civil Procedure Regulations, 1984) who will give their professional opinion to the court.
When choosing a specialist physician, you should take into account, among other things, their level of professionalism, their experience and even their reputation as an expert among court judges.
Statute of limitations
In most cases, the right to sue for medical malpractice expires 7 years after the time the damage from the malpractice occurred. However, there are exceptions to this rule that determine a different statute of limitations.
Some of the common exceptions:
A victim who was a minor at the time of the medical treatment that caused the damage, except for cases where the malpractice caused the death of the minor. The statute of limitations will begin on the day the victim turns 18, and not on the day the damage occurred.
Another exception applies to a situation where the facts constituting the cause of the lawsuit were revealed to the victim only after the time of the incident. That is, the damage done was only discovered some time after the treatment took place. In this situation, the statute of limitations will begin from the date when the injured party became aware of the damage and not from the date of its occurrence.
In case of suspicion of medical damage as a result of malpractice:
- Collect all relevant medical records. Sections 18 and 21 of the law state that a patient has the right to receive the medical information regarding their case (usually entailing a fee) and to file a complaint with an inspection committee. The role of this committee is to examine the provision of medical care in their case and the level of malpractice.
- Consult with a lawyer who specializes in the field to assess whether there is indeed a cause for suing and what the next steps are.
- This article does not constitute an alternative to legal or medical advice for injury or damage caused by medical malpractice.
Contact a lawyer who specializes in compensation law in the medical malpractice field
Our law firm specializes in the field of civil law. If you have been injured as a result of medical malpractice or are entitled to compensation for another reason, we would be glad to help. Contact us to schedule a consultation with a lawyer in Tel Aviv or Jerusalem.