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For Victims of Medical Negligence

A special seven-justice Supreme Court panel recently upheld the appeal of the family of a victim of medical negligence. In the revised ruling, most of the justices supported the position of Justice Dorit Beinisch, who found in favor of the family's arguments.

A special seven-justice Supreme Court panel recently upheld the appeal of the family of a victim of medical negligence. In the revised ruling, most of the justices supported the position of Justice Dorit Beinisch, who found in favor of the family's arguments. In so doing, the designated-president of the Supreme Court signaled that at least in this area, she is following the path of the current president, Justice Aharon Barak, whose rulings in recent years have indicated increased protection for medical negligence victims.

In the ruling (Case 7794/98 additional civil hearing) that was handed down on May 19 and had not been published till now, the Supreme Court justices significantly broaden the authority of the court to determine appropriate medical standards and the boundaries of responsibility of medical institutions and doctors. According to the ruling, this increased responsibility includes, among other things, an obligation to use safe medical equipment and to follow meticulously manufacturers' instructions. The ruling also defines responsibility for harm caused to patients during the course of medical treatment, even if such incidents are rare or indeed have never occured before.

In the ruling, most of the members of the special court panel upheld the arguments of the family of a young girl who suffered brain damage in 1984 after receiving an injection to anesthetize her jaw that left her neurologically and cognitively impaired. The attending physician, Dr. Dennis Clifford of England, was working as a volunteer in a neighborhood rehabilitation center in Ashkelon. The court ruled that the damage could have been avoided had the doctor administered the anesthetic with a newer, slightly more expensive syringe than the one he chose to use.

It emerged during the course of the hearing that the syringe used in the treatment was indeed in standard use among dentists in Israel and abroad at the time; however, the justices sided with Beinisch's position that even an accepted medical technique can constitute negligence, and that it is proper for the appropriate behavioral standard of a doctor to be determined not only by doctors themselves, but also, and primarily, by legal and social norms. The case was sent back to the district court for determining compensation.

The new ruling fits well with the Supreme Court's distinct trend of defending the rights of a patient and vigorously broadening the responsibility of doctors and medical institutions for accidents and oversights. In a number of the cases heard by the Supreme Court, its rulings have come in direct confrontation with the Health Ministry and Israel Medical Association.

In November 1995, Barak rejected the position of the medical establishment that reports from investigations of medical accidents, oversights or errors should be withheld from patients and their families. In one of the most significant patient's rights rulings, Barak determined at the time that the truth should be the guiding principle of every doctor, and the patient and his/her family are entitled to be informed of the circumstances of the treatment, including all details regarding medical negligence. Barak ordered that the family of a patient be given a report investigating his death at Hadassah University Hospital, Ein Karem; and since then, what was once one of the health system's most well-guarded secrets has been exposed to the public and the media.

In November 1998, Supreme Court Justices Theodor Or and Izhak Englard (contrary to the position of Justice Tova Strasberg-Cohen) rejected an appeal filed by the Clalit health maintenance organization, which had been found liable in a civil damages suit concerning the negligent treatment of a patient who underwent head surgery at Beilinson Hospital. The patient was treated by Prof. Eliahu Reichental, who, it emerged, had made a misdiagnosis. It also emerged that although the case was rare, similar cases had been documented in the medical literature at the time.

In the above ruling, the justices markedly broadened the obligation of the doctors to keep abreast of medical literature. Englard noted, as a minority opinion, that in general, it is proper for the financial burden of a medical error to rest on the shoulders of the doctor and not the patient because the payment demanded from the doctor is in any event paid by his insurance company. Englard also determined that holding the doctor personally liable is likely to encourage him to fulfill his obligations and keep abreast of the latest medical developments.

In May 1999, Barak rejected a request by Reichental and the Clalit HMO for an appeal hearing on the decision before a special Supreme Court panel, ruling that the original decision had been handed down as part of the accepted criteria for appropriate behavior of doctors in Israel.