Best Medical Malpractice Lawyers

Medical malpractice is a painful and complex subject, touching on the most sensitive encounter between a person and the system entrusted with their health and life. When medical treatment, diagnosis, or monitoring does not align with the accepted and reasonable standard of care, and as a result the patient suffers physical, mental, or financial harm, grounds for a medical malpractice claim may arise. It's important to emphasize that not every negative medical outcome or unexpected complication constitutes malpractice.

The medical world involves uncertainty and inherent risks. Medical malpractice occurs when damage is caused due to deviation from the level of care and skill required from a reasonable doctor or reasonable medical institution under the circumstances.

This page aims to provide comprehensive information about legal aspects of medical malpractice in Israel, starting from the legal basis, through elements of the claim, common types of malpractice, the process of filing a claim, and ending with possible compensation. Understanding the process and rights is a first and essential step for anyone who believes they were harmed due to poor medical treatment, and choosing an experienced medical malpractice attorney is critical to exhausting these rights.

The Legal Foundation for Medical Malpractice Claims in Israel

Medical malpractice claims in Israel rely mainly on two central pieces of legislation:

The Torts Ordinance [New Version] – The Tort of Negligence

The main basis for a medical malpractice claim is the "tort of negligence," defined in sections 35-36 of the Torts Ordinance. According to the ordinance, negligence is "an act or omission by a person that a reasonable person would not have done or would not have refrained from doing under the same circumstances." To prove negligence, the plaintiff must prove the cumulative existence of several elements, which will be detailed below.

Patient Rights Law, 5756-1996

The Patient Rights Law establishes fundamental rights of patients in Israel, including the right to receive proper medical treatment, the right to medical information, the right to medical privacy and confidentiality, and the right to informed consent for medical treatment. Violation of the provisions of this law, particularly violation of the duty to obtain informed consent, can constitute an independent cause of action (for "violation of autonomy") or support a claim of medical malpractice. For example, failure to provide adequate explanation about risks and treatment alternatives may be considered a breach of duty of care.

Elements of a Medical Malpractice Claim

For a medical malpractice claim to succeed, the plaintiff (the injured party) must prove four cumulative elements:

Existence of a Duty of Care from the Medical Staff or Medical Institution toward the Patient

In the relationship between doctor and patient, or between medical institution and patient, there is almost always a conceptual and concrete duty of care. The doctor and medical institution owe a duty of care to the patient from the moment the therapeutic relationship is created.

Breach of Duty of Care – Deviation from Accepted Standard of Care ("The Reasonable Doctor Test")

This is the heart of the malpractice claim. The plaintiff must prove that the doctor or medical institution deviated from the accepted and reasonable standard of medical care under those circumstances. This standard is determined according to what a reasonable doctor, with a similar level of skill, would have done (or refrained from doing) in the same situation. The comparison is not to a "perfect" doctor or a particular medical "school," but to accepted and careful medical practice. Proving the standard of care and deviation from it is usually done through expert opinion from a medical expert in the relevant field.

Existence of a Causal Relationship Between the Negligence (Breach of Duty of Care) and the Damage Caused

The plaintiff must prove that the damage caused to them is a direct result of the medical staff's negligence. This causal relationship includes two aspects:

• Factual causal relationship: "The but-for test" – would the damage have been prevented or reduced but for the negligence?
• Legal causal relationship: Was the damage caused reasonably foreseeable as a result of the negligence? Was the negligence a significant factor in causing the damage?

Causing Damage to the Patient

The plaintiff must prove that they suffered damage as a result of the negligence. Damage can be physical (bodily injury, disability, death), mental (trauma, depression), or financial (loss of work days, medical expenses, need for nursing care).

Common Areas of Medical Malpractice

Medical malpractice can occur at any stage of the medical encounter and in any field of specialization. Here are several common examples:

Diagnostic Malpractice:

Delay in diagnosing a disease, wrong diagnosis (diagnostic error), or complete failure to diagnose a medical condition. Such negligence may prevent life-saving treatment or cause worsening of the medical condition.

Treatment Malpractice:

Providing inappropriate treatment, performing a medical procedure or surgery negligently (for example, damage to adjacent organs, leaving foreign objects, infections), administering wrong medications (incorrect dosage, inappropriate medication, failure to consider allergies or drug interactions).

Medical Follow-up Malpractice:

Lack of proper follow-up of the patient's condition after treatment, procedure, or surgery. This negligence can manifest in failure to address patient complaints about pain or new symptoms, failure to perform required follow-up tests (such as blood tests, imaging), failure to identify warning signs for development of complications (such as infection, bleeding, blood clots), or discharge from hospitalization too early without a proper follow-up plan.

Medical Malpractice in Pregnancy and Childbirth

This field is particularly sensitive, and malpractice in it can cause severe and irreversible damage to both the mother and newborn. These cases include:

Malpractice in Pregnancy Monitoring:

• Failure to diagnose or late diagnosis of congenital defects in the fetus, despite the possibility of detecting them in routine tests (system surveys, nuchal translucency, genetic tests).
• Failure to identify risk conditions in pregnancy such as gestational diabetes, preeclampsia, or intrauterine growth restriction (IUGR).
• Ignoring complaints from the pregnant woman or suspicious signs indicating a problem in pregnancy.
• Failure to perform necessary tests or wrong interpretation of test results.

Malpractice During Delivery Itself:

• Failure to identify or late identification of fetal distress during delivery, requiring immediate intervention.
• Wrong choice of delivery method or insistence on normal delivery in cases where cesarean section was needed.
• Negligent use of vacuum or forceps instruments causing injury to the newborn.
• Delay in performing emergency cesarean section when there is clear indication for it.
• Negligent management of multiple births or breech delivery.
• Injury to the mother during delivery, such as severe tears not properly treated or excessive bleeding. Possible damages from such negligence include cerebral palsy (CP), brachial plexus injury (Erb's Palsy), other neurological damage to the newborn, and even death of the fetus or mother.

Lack of Informed Consent (Violation of Autonomy):

When a patient did not receive a complete and comprehensive explanation about their medical condition, the nature of the proposed treatment, the risks and chances involved, existing treatment alternatives (including non-treatment), and possible side effects – in a manner that allows them to make an informed decision. Even if the treatment itself was performed properly, lack of informed consent can constitute grounds for a claim.

Medical Malpractice in Surgery

Surgeries, by their nature, involve risks, but medical malpractice in surgery occurs when the surgical or anesthesia team deviates from accepted standards of care and skill, resulting in damage to the patient. Such negligence can manifest in several ways:

• Performing wrong surgery: Surgery on the wrong organ, on the wrong side of the body, or performing a surgical procedure different from what was planned and agreed upon.
• Technical failures in performing surgery: Negligent use of medical equipment, poor planning of the surgical course, or poor execution of surgical stages in a manner that deviated from accepted practice.
• Damage to adjacent organs, blood vessels, or nerves: During surgery, damage may occur to organs or tissues that should not have been harmed, if this could have been prevented by exercising reasonable care and skill.
• Leaving foreign objects: Unfortunate cases of leaving surgical pads, instruments, or instrument parts in the patient's body.
• Acquired infections: Infections caused by failure to maintain proper sterile conditions in the operating room or during the procedure.
• Anesthesia treatment malpractice: Errors in choosing anesthetic agents, dosages, monitoring the patient's condition during anesthesia, or treating awakening from anesthesia.

The Process of Filing a Medical Malpractice Claim – Step by Step

The legal process in medical malpractice claims is complex and lengthy, requiring close accompaniment by an experienced and knowledgeable medical malpractice attorney.

1. Initial consultation and assessment of claim prospects: The first stage is a consultation meeting with a medical malpractice attorney. At this stage, the attorney will examine the circumstances of the case, hear the patient's version, and initially assess whether there is a possible cause of action.
2. Collection of all relevant medical material: According to the Patient Rights Law, the patient has the right to receive a copy of their medical record. All medical documentation must be collected from all treating entities (health funds, hospitals, private doctors, institutes, etc.).
3. Obtaining expert medical opinion: This is a critical stage. According to civil procedure regulations, a medical malpractice claim must be accompanied by an opinion from a medical expert in the relevant field. The expert will examine the medical material and determine whether there was deviation from the accepted standard of care, and whether there is a causal relationship between the deviation and the damage. This opinion forms the basis for filing the claim. Experienced medical malpractice attorneys work with a pool of qualified medical experts.
4. Filing the statement of claim with the court: After receiving an opinion supporting the cause of action, a detailed statement of claim will be drafted and filed with the competent court (magistrate or district, according to the claim amount).
5. Managing the legal process: This stage includes several sub-processes:
   • Statement of defense: The defendants (doctor/medical institution) will file a statement of defense, usually with accompanying medical opinion on their behalf.
   • Preliminary procedures: Document discovery, questionnaires, witness statements.
   • Counter-opinions and expert examination: The parties will submit opinions on their behalf and experts will be examined in court.
   • Mediation or settlement negotiations: In many cases, parties are referred to mediation or conduct settlement negotiations to end the dispute outside court walls.
   • Evidence stage (trial): If no settlement is reached, an evidence hearing will take place where testimony from the patient, additional witnesses, and medical experts from both sides will be heard.
   • Judgment: At the end of the process, the court will give a judgment deciding the claim.
   • Appeal: Parties have the right to appeal the judgment to a higher court.

Proving Medical Malpractice – Challenges and Tools

Proving medical malpractice is a complex task. The defendants are usually large and powerful entities (hospitals, health funds, insurance companies), and the knowledge gaps between the patient and medical staff are significant.

• The crucial role of medical experts: As mentioned, medical opinions are the heart of the process. The quality of the opinion, the expert's professionalism, and their testimony in court can determine the fate of the claim.
• The importance of medical records: The medical record is a critical document recording the treatment provided. Incomplete, erroneous, or retrospectively altered records can sometimes work in favor of the plaintiff and even shift the burden of proof to the defendant.
• The doctrine of "Res Ipsa Loquitur": In rare and exceptional cases, when the damage that occurred is of a type that usually does not happen without negligence, and circumstances indicate that the cause of damage was under the defendant's control, the burden of proof may shift to the defendant to prove they were not negligent.

Statute of Limitations Period in Medical Malpractice Claims

According to the Limitation Law, a medical malpractice claim becomes time-barred, generally, after 7 years from the day the cause of action arose (usually, the date of the negligent event or date of damage discovery). However, there are exceptions and special rules:

• Minors: The limitation period for a minor begins to count only from reaching age 18. That is, an injured minor can file a claim until reaching age 25.
• "Late discovery rule": In cases where the damage or material facts of the case were not known to the plaintiff for reasons beyond their control, the limitation period may begin to count from the date these facts became known to them, but no later than 10 years from the day of the damage event (subject to exceptions).

It is very important to seek legal consultation as soon as possible and not wait, as delay may lead to dismissal of the claim due to limitation.

Types of Compensation Awarded in Medical Malpractice Claims

The purpose of compensation is to restore the injured party's condition to its original state, as much as possible, and place them in the position they would have been in but for the negligence. Compensation is divided into two main types:

1. Monetary Heads of Damage (Economic Damages)

• Medical expenses: Reimbursement of expenses for medical treatments, medications, equipment, rehabilitation, travel for treatments – both past and future.
• Loss of earnings and earning capacity: Compensation for lost wages caused by the injury (past), and compensation for loss of ability to earn in the future (impairment of earning capacity).
• Third-party assistance and nursing care: Compensation for the need for help in daily functions, household help, and nursing care – past and future.
• Mobility expenses and housing adaptation: In cases of severe disability, there may be compensation for adapted vehicle, mobility equipment, and adapting housing to the disabled person's needs.

2. Non-Monetary Heads of Damage (Non-Economic Damages)

• Pain and suffering: Compensation for physical and mental suffering caused to the injured party as a result of the injury and treatments. The compensation amount is determined by court discretion, considering the severity of injury, age of injured party, and more.
• Loss of enjoyment of life: Compensation for impairment of the injured party's ability to enjoy activities and hobbies they used to engage in before the injury.
• Shortened life expectancy: In tragic cases where negligence caused shortening of the victim's life expectancy.
• Violation of autonomy: Specific compensation given in cases of violation of the right to informed consent, even if the treatment itself was not negligent.

Why is it Important to Choose a Recommended Medical Malpractice Attorney?

The field of medical malpractice is complex and requires unique specialization, combining deep legal knowledge with understanding of the medical world. Choosing a recommended medical malpractice attorney is critical to the success of the claim, for the following reasons:

• Experience and professional knowledge: Experienced medical malpractice attorneys know the law, case law, and procedures specific to this field. They know how to analyze medical files, identify failures, and build an effective claim strategy.
• Connections with medical experts: A medical malpractice attorney usually has a network of connections with leading medical experts in various fields, capable of providing professional and convincing opinions.
• Ability to conduct negotiations and court representation: An experienced attorney will know how to conduct effective negotiations with insurance companies and medical institutions, and when necessary, represent the plaintiff optimally in court.
• Understanding of emotional complexity: A medical malpractice claim involves heavy emotional burden. A recommended medical malpractice attorney will show sensitivity and empathy to your situation, and provide support and guidance throughout the process.
• Resources: Managing a medical malpractice claim requires financial resources (for example, for expert opinions). Firms specializing in this field are prepared for this.

Summary

Dealing with the consequences of medical malpractice is a difficult and challenging journey, both physically and mentally. Understanding that the damage caused could have been prevented if proper medical treatment had been provided is unbearable. The legal system in Israel recognizes this and provides tools for the injured to receive appropriate compensation for their damages.

However, the path to proving medical malpractice and receiving compensation is complex and requires professional and experienced legal assistance. Contacting an attorney specializing in the field of medical malpractice is the most important step you can take to ensure your rights are preserved and your claim is managed optimally.