In May 2000, gynecologist Prof. Zion Ben-Refael was placed under house arrest after police questioned him on suspicion of fraud, breach of trust and endangering human life. During questioning Ben-Refael repeatedly denied all charges against him. The police argued at the remand hearing that Ben-Refael was suspected of carrying out fertility treatments on women, "the main purpose of which was to extract commercial quantities of ova by incorrect treatment, with the intention of turning a profit."
A week ago, after deliberations that dragged on for three years at the State Attorney's Office, the Justice Ministry announced that a team of senior state prosecutors, headed by Deputy State Attorney Rachel Sucar, had decided to close the criminal case against Ben-Refael.
The statement said extensive inquiries had failed to yield sufficient evidence to indict Ben-Refael on charges of negligent medical care, and the issue was a complex medical one that raised problems yet to be dealt with by the Health Ministry.
In coordination with Ben-Refael, the State Attorney's Office decided to make do with filing a disciplinary complaint regarding breaches of the Patient's Rights Law and the Doctors' Ordinance. Officials at the Rabin Medical Center expect Ben-Refael to demand his reinstatement as director of the women's department from which he was placed on leave after the affair was exposed in Haaretz. On the other hand, attorney Danny Srur, who is representing women claiming to have been involved, has announced he will appeal the decision.
The Justice Ministry also announced that the State Attorney's Office would take "a stern position" on punishing Ben-Refael - in disciplinary proceedings, this can range from a warning to being permanently stripped of his license.
However, and despite the Freedom of Information Act, the ministry refused to respond to a request from Haaretz to pass on any additional information on the specific offenses to which Ben-Refael had admitted in the framework of his agreement with the State Attorney's Office or on the detailed grounds for the decision itself.
These grounds may have explained the discrepancy between the serious conclusions from the affair - published in July 2002 by a panel of experts working on behalf of the Health Ministry and the State Attorney's Office - and the new decision to make do with a disciplinary hearing.
Perhaps they would also have provided answers to claims voiced by doctors and jurists that this is one of the most miserable decisions taken by the State Attorney's Office in the field of medicine and constitutes a severe violation of patients' rights.
Without this information one can only assume that Ben-Refael's plight was not impaired by top lawyers and the help of colleagues - among them Health Ministry director-general Dr. Boaz Lev and Prof. Eran Dolev, former chairman of the Israel Medical Association's Ethics Committee. They even backed up his arguments at the State Attorney's Office that his actions did not constitute a criminal offense.
But more than anything else, the decision of the State Attorney's Office was aided by the failure of the police and the Office itself to deal with complex medical issues. This failure facilitates the continuation of medical oversights and the existence of moral and financial corruption in the medical establishment.
The police failure to deal properly with cases involving medical negligence was pointed out two years by attorney Gal Levertov - the state prosecutor from the Tel Aviv District Attorney's Office, who is involved in the Cyril Kern affair - in an academic paper he prepared.
Levertov wrote that "thousands of individuals are maimed or die each year as a result of medical negligence, and the patients are defenseless in the face of these actions and oversights... Nevertheless, the police have not made preparations to deal with the phenomenon."
The State Attorney's Office - despite the seriousness of the medical affairs that have been investigated in recent years - has also failed to set up a special department, and no prosecutor has been charged with specializing in the subject, as has been done with economic and security issues.
A few years ago, the State Attorney's Office discussed a proposal to establish a medical department headed by attorney Liora Glatt-Berkovich - who is accused of leaking the Cyril Kern investigation file to Haaretz - due to the extensive experience she had accumulated in the case of cardiac surgeon Dr. Vladimir Yakirevich. The idea came to nothing. The biggest beneficiaries from this were the senior doctors. The losers - as always - are the patients.
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