Medical Negligence in Israel: Liability and Burden of Proof
A poor outcome is not necessarily negligence, and negligence does not always lead to compensation. This guide explains the tests by which medical conduct is assessed, what has to be proved and in what order, where the real difficulty lies, and what compensation is made up of.
What counts as medical negligence
Medical negligence is not a separate cause of action under Israeli law. It is the tort of negligence in the Civil Wrongs Ordinance applied to medical care.
Section 35 of the Ordinance provides that a person is negligent where they do an act that a reasonable and prudent person would not have done in those circumstances, or where they fail to exercise the skill or degree of care that a reasonable professional would have exercised in those circumstances. Section 36 adds that the duty of care is owed to every person whom a reasonable person would have foreseen as likely to be affected in the ordinary course of events.
The practical meaning is that the test is not whether the outcome was good, but whether the conduct met the professional standard accepted at that time and in those circumstances. A complication that forms part of the risks of the treatment, that was explained in advance and managed properly, is not negligence. The same complication, where it results from a departure from the standard or from a failure to identify it in time, may be.
The three elements to be proved
- A duty of care. Between practitioner and patient this is almost always present, and so it is rarely the focus of the dispute.
- Breach of that duty. This is where the argument lies: what the professional standard was, and whether the conduct departed from it. Proof on this point rests almost entirely on an expert opinion from a specialist in the same field.
- Damage and causation. A departure from the standard is not enough on its own. It must be shown that the departure caused the harm, rather than the course of the illness itself.
The three are cumulative. A case in which a clear departure from the standard is proved, but where it is not shown to have caused the harm, is not a case that ends in compensation.
Who bears the burden of proof
As a rule, the burden lies with the claimant, who must show the departure from the standard, the harm, and the link between them.
In practice that burden begins with something that is not legal at all: assembling the complete medical file. Hospital records, operation notes, test and imaging results, follow-up notes, and all correspondence with the treating body. An incomplete file does not allow an expert to form an opinion, and without an opinion there is no claim.
There are situations in which missing or poor documentation works in the claimant's favour, since it is difficult for a practitioner to show that they acted properly where no record supports it. That is one reason why the quality of the medical record is a central issue in these cases, and not a technical one.
Informed consent: a cause of action in its own right
Even treatment carried out to a faultless professional standard may give rise to a claim if it was given without informed consent.
Section 13 of the Patient's Rights Law, 5756-1996, provides that medical treatment shall not be given unless the patient has given informed consent, and sets out the information that must be supplied for that purpose:
- The diagnosis and prognosis of the patient's condition.
- A description of the nature, procedure, purpose, expected benefit and prospects of the proposed treatment.
- The risks involved, including side effects, pain and discomfort.
- The prospects and risks of alternative treatments, or of no treatment at all.
- The fact that the treatment is of an innovative character.
Signing a form is not the same as informed consent. The question is whether the information was in fact given, and in a way that allowed a decision to be made. More on the informed consent page.
Causation, and why it is the central difficulty
In most cases the dispute is not about whether a departure occurred, but about what it caused.
The recurring argument from the defence is that the harm would have occurred in any event because of the patient's medical condition, and that even optimal treatment would not have prevented it. Against it stands the claimant's case that a delayed diagnosis, a missed finding, or the choice of an unsuitable treatment is what led to the outcome.
The question is decided on expert opinions from both sides, and at times on the opinion of an expert appointed by the court. This is the stage at which the quality of the expert opinion matters more than any legal argument.
What compensation is made up of
- Non-pecuniary loss - pain, suffering and the impact on quality of life.
- Loss of earnings, past and future, according to the impairment of working capacity.
- Medical expenses incurred and to be incurred, including corrective treatment and equipment.
- Third party assistance - help at home and with care, past and future.
Here too, the degree of medical disability is not the same as the degree of impairment to earning capacity. The two are assessed separately, and in many cases that is the main gap between the parties.
Time limits, and harm discovered late
Not every injury comes to light immediately. Where the damage is discovered only at a later stage, the limitation period may start from the date of discovery. As a general rule, however, an outer limit of ten years from the date of the injury applies. So even where damage surfaces late, it is important not to delay and to check the relevant rights early on. (Civil Wrongs Ordinance, section 89(2))
For a minor the period is counted differently, so in cases concerning birth or the treatment of a child the limits should be checked on the specific facts rather than by rule of thumb.
In summary
Medical negligence is assessed under the tort of negligence in the Civil Wrongs Ordinance: whether the conduct met the skill and care a reasonable professional would have exercised in those circumstances under section 35, within the duty of care set out in section 36. The claimant must prove a departure, harm and causation, and all three rest on the medical file and on expert opinion. Alongside this stands the informed consent ground, for which section 13 of the Patient's Rights Law sets out the five items of information required. Where harm surfaces late, section 89(2) sets a framework that should be checked early rather than late.
The complexity here is not whether the outcome was severe, but in distinguishing a complication that forms part of the risks of treatment from a departure from the standard, and in showing that it was the departure that caused the harm. That distinction calls for a complete medical file, the right expert from the same field, and professional legal representation by a lawyer practising in the field.
If you believe that you or a family member suffered harm as a result of medical treatment, contact us and we will review the facts and the options open to you together.
Frequently asked
Is every poor outcome negligence?
What is the first step?
I signed a consent form. Does that end the matter?
Why is an expert opinion needed?
How long is there to bring a claim?
My medical disability is low. Is there a case at all?
All pages in this practice
Defamation · Road accidents · Medical negligence
Defamation Claims: The GuideDefamationRoad Accident Compensation LawMaking a Road Accident ClaimFatal Road AccidentsCompensation from KarnitLiability and Burden of ProofMedical Malpractice ClaimsThe Medical OpinionInformed ConsentPrinciples of liability · Work accidents
Joint TortfeasorsAbsolute LiabilityCompensation for a Work AccidentWork disability claimOccupational diseaseMicrotrauma injuryCommuting the disability pensionHarmed by medical treatment?
Tell us what happened, when, and how you are now. That is usually enough to say which records to gather, what kind of expert is needed, and what the first step should be.