Medical malpractice claims are distinguishable from ordinary monetary claims in several aspects. Some of the main distinctions are discussed herein.
Costs for filing a medical malpractice claim are minimal: In most cases plaintiff`s lawyer`s fees are on contingency basis, i.e. a certain percentage of the sum awarded by the court. Court charges are lower than the 2.5% (of the amount sued for) levied on monetary claims. Plaintiff is obliged to attach to his claim a medical expert opinion on his medical condition in order to support his allegations in respect of the defendant`s liability. Such opinion must also refer to the causal connection between plaintiff`s disability and the alleged medical malpractice. The main cost for plaintiff is therefore the medical expert`s fees.
When filing the claim, plaintiff must only specify the amounts claimed in respect of "special damages", i.e. damages that have already crystallized at the date of filing the claim. Plaintiff does not have to specify the amounts claimed for in respect of future damages. Future damages are determined by the court in accordance with the evidence presented at the trial, including plaintiff`s medical condition, permanent disability, plaintiff`s life expectancy, expected medical expenses, evaluation of third party assistance plaintiff will require, loss of earnings, pain and suffering.
The legal basis for a medical malpractice claim in Israel is: (a) a contractual claim which derives from the contractual relationship between the doctor/hospital and the patient; (b) the legal liability pursuant to tort law, and in particular negligence, assault and battery, and breach of statutory acts; (c) any other laws (such as the Patients` Rights Law - 1996).
The injured party may claim all of his damages as a result of the malpractice, including loss of potential income, third party assistance, medical treatments and medicine, expenses, pain and suffering.
It is important to note that since the enactment of the National Health Law 1994, the injured party is entitled to medical treatment pursuant to the law even if the reason for the treatment is a result of medical malpractice.
According to the Limitation Law - 1958 a claim is time barred after seven years. However, when plaintiff is not aware of essential facts, the limitation period may be extended until 10 years. In addition when plaintiff is a minor at the time of the occurrence, the limitation period will only begin when he reached the age of 18. Therefore in cases of minors a claim may be filed 25 years after the occurrence. According to Sec. 70 of the Israeli Insurance Contracts Law - 1981, in liability insurance, a claim for insurance benefits does not prescribe so long as the third party claim against the insured had not prescribed.
Amounts awarded by the Israeli courts in medical malpractice claims
Generally speaking, the amounts awarded by Israeli courts are not very high compared with other countries and in particular compared with the United States.
Scientifically, the amounts awarded for pain and suffering are still relatively low, although in recent years there has been some increase.
Punitive damages are not awarded in medical malpractice claims.
High awards have been adjudicated to babies born with birth defects or as a result of negligence during birth. Other large claims relate to various gynecological and IVF treatments. In these areas several million shekels have been granted.
On 15th March 2004, the Israeli Supreme Court reversed a previous binding precedent rendered by the same court almost 20 years ago. The new precedent (C.A. 140/00 The Estate of Michael Etinger et al v. The Restoration and Development Company for the Old City of Jerusalem et al) recognizes a new head of damage: an injured person is now entitled to compensation from the tortfeasor, for the loss of earnings during the "lost years" – the years in which the lifespan of the injured person was shortened.
The ruling applies whether the injured person remained alive with shorter life expectancy, or died as a result of the wrongful act (in which case, his estate is entitled to sue).
The significance of the Etinger precedent is in cases of bodily injury claims where the injured person was under the age of retirement. Naturally, this is most significant where the injured parson was very young at the time of injury.