Court awards record NIS 16 million for 33-year-old malpractice case

A Tel Aviv court last month set a new record for damages from medical malpractice suits, when it awarded NIS 16 million to a 33-year-old man with cerebral palsy. The condition was caused as a result of dehydration that the man had suffered at the age of three months at a municipal hospital.

Judge Samuel Barouch ruled on September 16 that the city of Tel Aviv should compensate the plaintiff - whose name was not disclosed - to the tune of NIS 14.5, and that the National Insurance Institution should pay him an additional NIS 1.6 million.

This sum broke an earlier record of NIS 14 million, awarded last year at the end of a malpractice suit against Kaplan Hospital in Rehovot. The new malpractice case pertains to treatment that the plaintiff received in 1976 at Rokach Hospital in the center of Tel Aviv, which has since closed. Before taking him there, the plaintiff's parents, who lived in Rosh Ha'ayin, brought him four times to the Clalit health maintenance organization clinic for severe diarrhea.

After medications failed to improve his condition, the clinic referred the baby's parents to Sharon Hospital in Petah Tikva. From there he was referred to Rokach.

Following a series of tests, the baby was released home with a referral to a family doctor, a recommendation for antibiotic treatment, paracetamol and to drink a lot of liquids.

The baby was released within 25 minutes of admission.

The baby became unconscious at his home the next day and was rushed to Beilinson Hospital in Petah Tikva, where he was diagnosed as suffering from severe dehydration. He went into cardiac arrest, required resuscitation and was put in an iron lung.

The plaintiff remained unconscious for several months, contracting several lung infections and suffering severe developmental problems. He currently suffers from cerebral palsy and requires constant care.

Since the age of 20, the plaintiff has worked in special programs for disabled people.

The malpractice suit on the plaintiff's behalf was filed in February 2000 by attorney Yael Peleg in the Tel Aviv District Court against Clalit.

The lawsuit against the HMO was rejected, after the plaintiff failed to show the causality of the treatment he had received there and his subsequent condition.

The hospital, Rokach, said the medical documents had been destroyed according to regulations.

But Rokach was later sued as well, after the plaintiff's family located medical files that documented the treatment received at Rokach by the plaintiff.

Rokach's doctors, according to the suit, failed to diagnose the baby as suffering from severe dehydration.

"In light of the boy's ongoing diarrhea problem in October and November 1976, the hospital was committed to a very solid safety margin," the Supreme Court ruled in July 2008.

The Supreme Court received the case after the District Court ruled in 2006 that the baby had been released from the hospital in a reasonable medical condition, and that the dehydration occurred later, at his home.

But in 2008 Justices Eliezer Rivlin, Salim Joubran and Uzi Vogelman received an appeal on the 2006 ruling, and stated that the baby was brought to the hospital "In an advanced state of dehydration or high risk of the same condition." The Tel Aviv Municipality, which owned Rokach, will foot the bill for the damages.

"The family has waited nine years for justice to be served and this has been a very difficult process for the family, but we are glad that justice has at last been done," Peleg said yesterday.

A spokesperson for the Tel Aviv Municipality said that the city will comment on the ruling only after it had reviewed it.

Over the past decade, damages awarded for medical malpractice have increased by 700 percent, according to data compiled by the insurance agency Madanes, whose clients include three major HMOs.

In 2008, the average sum awarded for malpractice was $81,000. However, only 20 percent of all malpractice suits make it in front of a judge. The remaining 80 percent are settled out of court.

Most settlements are ratified by the court. "Israel is seeing a judicial inflation in damages," said Talya Halamish-Shani, director of Madanes. "While the damages awarded are growing, we are not seeing an increase in the number of lawsuits."

There are an estimated average of 4,500 malpractice suits per year, yielding claimants a total of about $250 million. Other Western states are seeing a similar rise in damages from malpractice, and a subsequent increase in insurance premiums charged by firms which insure medical personnel and institutions against these lawsuits.

Several American states have capped the maximum which can be awarded for medical malpractice, but in 2004 the U.S. Senate voted down an initiative to limit compensation to $250,000 per claim.