Doctor doctor, can we sue? - Haaretz

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Fri., January 18, 2008 Shvat 11, 5768

Israel Time: 02:35 (EST+7)

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Doctor doctor, can we sue?

By Ronny Linder-Ganz

Tags: malpractice, physicians

Dr Shalhav Kimchi's first battle in court arose when she, an airborne physician with the Israel Air Force, was told that she couldn't participate in flights over the newly autonomous Gaza Strip any more because she was female.

She was infuriated by the decision, Kimchi relates. "I loved the action and the drama and saving lives, and didn't understand the decision. It's the same place, the same flights, the same casualties. What changed?"

She won her case and the decision was reversed, paving the way for other women to fly over Gaza too. It was also a watershed event in her life: She had tasted blood in court, as it were, she had made a difference, and wanted more.

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Today Kimchi is a full-time lawyer specializing in medical malpractice. Six years ago she abandoned medicine completely after finishing law school in 1999. "I loved medicine," she says. "It took me a long time to make my final decision to leave the profession, but I feel that medical malpractice is a fantastic area where I can make my mark on the medical professional, and instill the issue in the public awareness."

Kimchi isn't the only one who's crossed the line from healing to suing. Not a few doctors doff their stethoscopes and don the robes of court, representing patients who have been hurt by doctors - the very doctors with whom these lawyers studied, with whom they used to work.

Each doctor has his own set of reasons for moving to law. Some always wanted to be lawyers anyway, others were bored or revolted by medicine, and then there's the case of Dr Avi Rubenstein, a former neurosurgeon and today a medical malpractice pro, after becoming disenchanted with the world of medicine.

"I worked as an expert for 10 years and was battling with myself throughout," he says. "I loved the profession and the patients, and invested a great deal, but on the other hand I encountered serious problems in the system, and couldn't find my place in it. The system is riddled with politics, ego wars between doctors, and often it's at the expense of the patient." One day Rubinstein suddenly couldn't stand it any more and decided to go study law.

"It was certainly not my dream," he says: but it happened, without being planned. Even after finishing his law degree, it never occurred to him that he wouldn't practice medicine any more - but over time, he saw that the merger of medicine and law worked magnificently and he was overrun with clients. .

Then there are the "dual-listed doctors". Eran Aharon is a gynecologist and lawyer who doesn't cavil at representing women against fellow gynecologists. He didn't turn to law because he was sickened by medicine: he wanted to realize a childhood dream of being a lawyer, but continues to love gynecology and obstetrics.

Shifting from healing to suing isn't just another change of profession. Some doctors feel they're being hounded. A survey by the Israel Medical Association found that 40% of doctors feel that medicine has taken a defensive turn because the courts have been cracking down on malpractice. Among gynecologists, 71% feel that way, apparently because of the vast numbers of cases involving gynecology, fertilization treatments and obstetrics.

But the doctors who have crossed the lines feel terrific. "I don't feel that I'm a traitor, on the contrary. I'm at peace with myself because I know that what I do derives from professionalism, not the desire to get another case," says Aharon, and explains his line in the sand: "I would never take a case or provide an expert opinion unless the malpractice is glaring, and remember that malpractice in birthing causes damage is for life and ruins whole families. In cases where the outcome would have been different if the birth-mother had received different care, it's a mission to help."

Kimchi, who had worked at Aharonson-Abulafia & Co until two weeks ago, also represented doctors who had been sued, but from now on is confining herself to patients. She has no conscience pangs when she sues a doctor, Kimchi says: she too takes only cases that she feels are justified, where a real wrong has been perpetrated.

Compensation for the victims aside, she believes she is improving the medical profession by increasing awareness among both doctors and patients. "Usually the defendants are large bodies. I try to avoid suing the doctor individually, because I'm not seeking revenge against a specific doctor, just to right the big picture," she says.

Rubinstein admits that until recently he avoided targeting fellow neurosurgeons, but he actually feels no conflict of interest. "We choose our cases carefully and filter out 95% before the initial stage. Unfortunately, there are some absolutely awful cases and people who have been hurt are entitled to compensation."

What's for sure is that their medical training gives them an edge over "regular" lawyers, though the "regular" lawyers who specialize in medical malpractice argue that their experience closes the gap. Not so, says Aharon: he knows where the weak points are in an expert's testimony, and the strong points too. "I know which questions to ask and also which not to ask," he says.

Certainly there's no shortage of work. "We're following the path of the U.S. The amount of claims grows from year to year. The doctor isn't considered the ultimate font of knowledge," says Kimchi.

One reason is because patients surf the Internet and are more knowledgeable themselves, and have a better grasp of their rights. Another reason is the expansion of medical doctrines, and therefore, grounds to sue.

"Today there is awareness of the patient's informed consent to treatment. Did the patient receive a satisfactory explanation, did he sign a consent form for surgery, is his autonomy protected, and so on," Kimchi says. "The lawsuits improved the quality of service and doctors explain more to the patient, spend more time with him, and are more careful."

How many cases are invalid? That depends who you ask. Kimchi for one says that frivolous claims aren't common.

Prof. Israel Meizner, on the other hand, the manager of the ultrasound unit at Beilinson, who finished his law studies this year, notes cases in which patients sue doctors simply to get compensation, because they have no medical insurance, but the doctors and hospitals do have coverage.

"A person can wake up and decide to sue a doctor for anything at all. I heard about a lawyer who hangs around the Bedouin town Rahat, knocking on doors and asking where there are kids born with defects, and offering them legal representation in exchange for 30% of the compensation. That is to debase the profession," he says.

The courts are flooded with malpractice cases that get settled, he adds. The lawyers simply try it on: maybe the defendants will simply prefer to make the case go away and settle, even if it's not warranted. With enough cases like that, they make the same living as if they'd only represented cases with merit, Meizner says.

Are these doctor-lawyers happy in their new life? Rubinstein for one professes to miss medicine. "No doubt about it, my pulse accelerates when I visit a hospital and pass by the surgical theaters," he says. He misses the consultations with his peers, but takes comfort in the thought that today he's engaging in medicine at a higher level, from pregnancy to the preemies' ward to surgery and imaging. "It forces me to stay up to date in all areas," he says. "At the end of the day, I have no time for nostalgia."

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