Supreme Court to Decide if Patients Can Tape Examinations

Case triggered after security guard was injured by a firecracker, lost three fingers as a result, and sued various parties, including the Jerusalem, for compensation.

The Israel Medical Association and the Israel Bar Association are at loggerheads over whether patients should be allowed to record medical examinations.

The issue is currently before the Supreme Court, and both groups have filed friend of the court briefs. The bar association supports the idea, while the IMA opposes it.

patients - Daniel Bar-On - November 23 2010
Daniel Bar-On

The case began when security guard Yoav Glitzenstein was injured by a firecracker during a Hapoel Holon-Hapoel Jerusalem basketball game at Jerusalem's Malkha Arena in 2007. He lost three fingers as a result, and sued various parties - including the city, the Israel Basketball Association and the teams involved - for compensation.

The defendants wanted him examined by their own medical specialists, and among others, they sent him to a leading psychiatrist, Prof. Moshe Kotler, director of the Beer Yaakov psychiatric hospital. On his lawyer's advice, Glitzenstein asked permission to tape their session, but Kotler refused.

In March, the Jerusalem District Court sided with Kotler, saying his refusal was "reasonable" in light of his "right to shape his working environment according to his own best judgment."

Glitzenstein then appealed to the Supreme Court, which is when both the bar association and the IMA joined the case.

According to the bar's brief, a plaintiff's ability to record medical exams is of "great importance for personal injury suits in which an expert examination of the plaintiff is sought ... We are dealing with the basic right of every person to document information given orally to another party and to defend himself suitably against an attempt to cast doubt on this information in a legal proceeding."

Glitzenstein's lawyer, Asaf Posner, explained that when a plaintiff is examined by a doctor for the other side, the session is by nature adversarial, so it makes sense to record it in order to prevent future disputes on what was really said.

But when the IMA's ethics bureau discussed the issue at a stormy meeting last month, most of those present opposed a blanket permit to record medical exams.

"In writing his opinion, the medical expert does not rely solely on what he hears from the examinee during the exam, but on additional indications that are not recordable, including the facts presented to him in writing and his direct impressions of the examinee's body language, the spontaneity of his reactions, etc.," the bureau wrote in the brief it submitted to the court.

The demand to record the proceedings, it added, demonstrates "a suspicious attitude toward medical specialists without any basis, as if they had a tendency to be remiss in their work or take notes in bad faith." Prof. Avinoam Reches, chairman of the ethics bureau, said the doctors' fear is that "the culture of taping and filming will creep from this case into the entirety of the doctor-patient relationship. We don't oppose transparency, and our view is that in exceptional circumstances, when there is a special need for a recording, this could be permitted by court order."

Moreover, he said, the very fact that the session is being recorded could encourage the patient to be less frank than if it were completely confidential.

District courts have ruled on recording medical exams more than once, approving it in some cases and rejecting it in others. But this is the first time the Supreme Court has ever addressed the issue.

The issue is also currently before the Health Ministry, following an incident in February in which relatives of a patient hospitalized at Ashkelon's Barzilai Hospital attached a webcam to his cell phone to record his treatment.

The hospital ordered the camera disconnected, arguing that it would inevitably photograph medical treatments of nearby patients as well, without their consent. A union representing doctors employed by the government then asked the ministry to formally ban the use of webcams to record medical proceedings.

The ministry has yet to decide on the case.