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Some Comments on Medical Malpractice Claims in Israel
The 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. In ordinary monetary claims in most cases court charges are levied at the rate of 2.5% of the amount claimed. However, in Medical Malpractice Claims the court charges are very low at the time of filing the claim and depend whether the claim is filed to the Magistrate Court or to the District Court. Plaintiff is obliged to attach to his claim a medical expert opinion in order to support his allegations in respect of the defendant`s liability and his medical condition, including plaintiff`s disability as a result of the medical malpractice. The main cost for plaintiff is therefore the medical expert fees.

When filing the claim, plaintiff must only specify the amounts claimed in respect of "specific damages", i.e. damages that have crystallized at the date of the claim. Plaintiff does not have to specify the amounts claimed in respect of future damages, which are determined by the court in accordance with the evidence presented at trial, including plaintiff`s medical condition, permanent disability, plaintiff`s life expectancy, anticipated medical expenses, evaluation of third party assistance plaintiff will require, loss of earnings and pain and suffering.

The legal basis for a medical malpractice claim in Israel is: (a) a contractual cause of action which derives from the contractual relationship between the doctor/hospital and the patient; (b) the legal liability pursuant to tort laws, and in particular negligence, assault and battery, and breach of statutory acts; (c) any other laws (such as the Patients` Rights Law 1996 and in particular, Section 13 of this law).
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 legally entitled to medical treatment even if the reason for the treatment is a result of medical malpractice.

Limitation

According to the Limitation Law, 1958 a claim subscribes 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 commence when he achieves majority at the age of 18. Therefore, where a minor is involved a claim may be filed 25 years after the occurrence. According to Sec. 70 of the Israeli Insurance Contracts Law, in liability insurance, a claim for insurance benefits does not prescribe, so long as the third party claim against the insured has 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 jurisdictions and in particular compared with the United States.
Specifically, the amounts awarded for pain and suffering are still relatively low, although in recent years there has been some increase in the amounts.

No punitive damages have been ever awarded in a medical malpractice claim.

The claims with the highest amounts were related to babies born with birth defects or as a result of negligence during birth. Other large claims related to various gynecological and IVF treatments. In these areas the court was willing to award amounts of several million shekels.

On 15th March 2004, the Israeli Supreme Court reversed a previous binding precedent rendered by the Supreme 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" namely, 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. Obviously, this is most significant where the injured parson was very young at the time of injury.

 



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