Court Tells Hospital to Compensate Woman for Loss of Fertility - Despite Pregnancy

The Ashkelon hospital is considering appealing the Tel Aviv Magistrate's Court's ruling on the grounds that the abortion proves her fertility was not impaired.

A court has ordered Barzilai Medical Center to compensate a patient who claimed to suffer impaired fertility following a dilation and curettage procedure, even though she had an abortion after telling the court she was unable to conceive.

The Ashkelon hospital is considering appealing the Tel Aviv Magistrate's Court's ruling on the grounds that the abortion proves her fertility was not impaired.

pregnant - Haaretz - December 1 2009

Meanwhile, the woman has filed a breach-of-privacy complaint to the Health Ministry and the Israel Medical Association, charging that applications to the hospital committees that approve abortions are supposed to be confidential, not revealed in court.

The woman, who currently has three children, gave birth to her second child by Cesarean-section at Barzilai Medical Center in Ashkelon in 1997.

Three weeks later, she suffered vaginal bleeding, was hospitalized for a day and then released when the bleeding stopped. A week later, she started bleeding again and returned to Barzilai, where doctors decided to perform a D&C to stop the bleeding.

But the bleeding still did not stop, and a month later, she was diagnosed with adhesions in her uterus and had to undergo an operation to separate them at Ichilov Hospital in Tel Aviv.

In 2003, the woman sued Barzilai, saying that the D&C had been unnecessary and that ever since, she has had trouble getting pregnant. Two years after filing the suit, she conceived spontaneously and gave birth to a daughter.

But since then, she said in a subsequent affidavit to the court, she has not been able to conceive. She planned to try in vitro fertilization, the affidavit said, but if that did not work, "I'll have to use a surrogate or adopt a child."

Three senior gynecologists submitted expert opinions to the court. One, on behalf of the plaintiff, said the unnecessary D&C had caused the adhesions in her womb, which in turn damaged the lining of the uterus, and as a result, her chances of conceiving were now far lower.

Barzilai's expert countered that the D&C had been necessary, as an emergency operation to stop the bleeding.

The court then appointed an expert of its own, Professor Zion Ben-Rafael, who sided with the plaintiff. A hysteroscopy, he said, would have been preferable to a D&C, and the D&C indeed impaired her fertility.

But in June 2009, as the case was drawing to a close, the patient went to Barzilai's abortion committee and sought approval for an abortion - proving that in fact, she had conceived again. One of the doctors on the panel had been involved in her D&C 12 years earlier and recognized her.

After the panel approved the abortion, he informed the hospital's management. It then secured affidavits from two doctors on the panel regarding this evidence of her continued fertility and submitted them to the court.

That led the woman to complain to the Health Ministry and the IMA that the doctor had violated her privacy, as well as medical ethics, by disclosing her application to the abortion committee to the hospital administration and to the court.

Barzilai's legal department, in its response to the IMA's ethics committee, countered that for a doctor to inform his employer that the plaintiff in an ongoing lawsuit has been lying in court most certainly does not violate medical ethics.

The ethics committee deferred consideration of the issue until after the court had ruled, and is now due to take it up again. The Health Ministry's ombudsman is also examining the case.

The court, for its part, agreed that her application to the abortion committee was admissible as evidence. However, it did not agree that this proved the woman had suffered no impairment to her fertility, and it ordered Barzilai to pay her NIS 118,000 in compensation for this impairment.

But her lawyer, Eliezer Vitner, said the court apparently did take her abortion application into account in rejecting her request for damages to cover the cost of a future surrogacy or adoption.