Children With Birth Defects Can No Longer Sue for Malpractice

The precedent-setting ruling is a significant turning point in the field of medical malpractice suits.

The Supreme Court on Monday struck down the right of a person to sue doctors and health-care institutions for "wrongful birth" because they were born with a defect that could have been detected during prenatal testing.

The precedent-setting ruling, issued by an expanded panel of seven justices, is a significant turning point in the field of medical malpractice suits. Of the many such suits that reach the court system every year, a majority relate to obstetrics, specifically birth defects.

The ruling was the last to be read by Deputy Court President Justice Eliezer Rivlin before his retirement. The panel also included former Supreme Court President Dorit Beinisch and her successor, Justice Asher Dan Grunis.

The justices determined that suing for "wrongful life" doesn't merely pose legal difficulties, but ethical difficulties as well. Defining life as "damaged," even if it is lived with disabilities, and finding that it would be better for a person never to have been born at all, undermines the value of life, they said.

Until now, the law allowed children to sue for wrongful birth until they were 25 years old. Monday's ruling, however, established that suits for wrongful birth could only be filed by parents. They would be allowed to seek compensation that would cover the extra expenses of raising a disabled child and meeting the needs for the rest of his life, but only if a causal relationship could be established between the defect that was not identified and the deficiency suffered by the child.

For this purpose, the court accepted the position of the Israel Medical Association, which recommended that the criteria used by hospital abortion committees be the standard for allowing a malpractice suit; in other words, "causal relationship" would only be recognized if - had the defect been known and the mother had applied to an abortion committee - the committee would have allowed the pregnancy to be terminated.

If the answer to the above question is positive, the parents would then be required to establish that if not for the negligence, they would have actually applied to the abortion committee to terminate the pregnancy. Even if they could not prove they would have applied to the abortion committee, however, they can still sue for the damage done to their autonomy as the result of having to care for a disabled child.

Disabled people have been filing suits for wrongful birth for over 25 years, but over the past decade the number of such suits has significantly increased. According to Medical Risk Management, which belongs to the Madanes Group, the country's largest malpractice insurer, the overall number of malpractice suits has doubled in the past decade, but obstetrics-related malpractice suits have quadrupled, from 64 in 2000 to 251 in 2010, though in 2011 there was a drop to 186 suits. Most suits are settled out of court.

According to attorney Eli Zohar, who represented the IMA in the case, "This ruling comes after 26 years of contradictory and inconsistent verdicts, that involved serious disabilities in which a child could indeed say 'I'm better off dead than alive,' to much milder disabilities such as a missing middle finger or dwarfism. A person can live as a dwarf and have a happy life, and this ruling expresses that."

The justices also called on the government to adopt the recommendations of a Justice Ministry panel headed by retired Justice Eliahu Mazza, which called for a mechanism for compensation for damage caused by birth defects without having to prove medical malpractice.

A bill to this effect, drawn up by MK Meir Sheetrit (Kadima ), which is also expected to limit the scope of compensation that can be claimed for birth-related malpractice, is to be submitted to the Ministerial Committee for Legislation shortly.

Justice Eliezer Rivlin, left, being given an affectionate farewell by chief justice Asher Grunis.
Amit Shabi / Yedioth Ahronoth