Medical Negligence Guide — When You Have a Cause of Action

What is Medical Negligence and How to Establish a Cause of Action

Medical negligence is a breach of a physician's or medical institution's duty of care toward a patient, resulting in physical or psychological harm. In Israel, to establish a legal cause of action for medical negligence, several legal conditions must be proven simultaneously. These conditions have been established through Israeli case law over the years and play a central role in assessing each case individually.

Every suspected case of medical negligence is unique. The circumstances, type of treatment, the physician's condition during treatment, the patient's level of education, and expectations — all of these affect the determination of whether there was indeed a breach of legal duty. Therefore, personal legal consultation with an attorney experienced in this field is essential to understand your rights.

Three Legal Conditions for a Cause of Action in Medical Negligence Claims

In Israel, to establish a recognized legal cause of action for medical negligence, three conditions must be met simultaneously:

• Legal duty: The physician or medical institution had a duty of care toward the patient. Typically, any physician treating a patient is bound by this duty, regardless of a written agreement or payment.
• Breach of duty: The physician or medical institution deviated from the standard conduct required of a physician with similar qualifications under similar circumstances. This is the most difficult question in such claims, as it requires comparison to a recognized professional standard.
• Causal connection between the breach and the damage: The harm suffered by the patient must be a direct result of the breach, not caused by another factor or pre-existing condition.

Each of these conditions must be proven with a high degree of certainty. If any one of them fails to meet the requirements, the claim may be dismissed, even if the injured party has a strong feeling of having been harmed by a physician's treatment.

Types of Medical Negligence and Examples of Causes of Action

Medical negligence can manifest in many different ways. In some cases, the breach is clear and straightforward to prove; in others, it is complex and requires detailed expert testimony. Below are common types of medical negligence that may constitute a cause of action:

Misdiagnosis or Delayed Diagnosis

When a physician opts for an incorrect diagnosis, or something that seems easier to him, and does not examine all possibilities — this may constitute negligence. Example: A patient arrives with complaints of chest pain, the physician diagnoses angina, but it is actually a heart attack. If the physician did not perform necessary tests, this could constitute a breach of the duty of care. However, here too it is important to prove that a physician with similar qualifications would have acted differently under similar circumstances.

Incorrect Surgery or Treatment

Surgery performed using wrong technique, or medical treatment that did not comply with standard procedure — these may constitute negligence. Example: A physician operates on the wrong area of the body, or administers medication at the wrong concentration. If the harm caused is a direct result of this error, there may be a cause of action for a claim.

Lack of Informed Consent

A physician is required to explain the known risks of the treatment or surgery to the patient, and obtaining informed consent is a legal duty. If a physician fails to explain a material risk and the patient is harmed by that risk, there may be a cause of action for a claim. Here, the question is not always whether the treatment itself was good or bad, but whether the patient would have consented had he known.

Neglect or Delay in Treatment

When a physician or medical institution neglects a patient or delays necessary treatment — this may constitute negligence. Example: A patient in a hospital does not receive medications on time, or an urgent surgery is delayed for days. If harm is caused as a result of this delay, there may be a cause of action for a claim.

Errors in Dental Treatment or Cosmetic Surgery

Any medical treatment, including dental and cosmetic procedures, must meet professional standards. If a dentist or cosmetic surgeon breaches this duty and causes harm, there may be a cause of action for a claim. In these fields, proving a breach may be complex, but it is possible.

Types of Damages Recoverable in Medical Malpractice Claims

When medical malpractice is proven, the patient is entitled to compensation for the damages incurred. In Israel, it is customary to distinguish between different types of damages, each of which is assessed in its own way:

Physical Damages (Bodily Injury)

These are direct injuries to the patient's body — pain, suffering, disability, loss of limbs, scarring, and the like. These damages are assessed according to the disability schedule used by Israeli courts, and in accordance with the degree of disability and the age of the injured party.

Loss of Earning Capacity and Income

If medical malpractice resulted in the loss or reduction of work capacity, the patient is entitled to compensation for income lost or expected to be lost in the future. This includes income from employment, self-employment, and social security benefits.

Additional Medical and Treatment Expenses

If the malpractice necessitated additional treatment — surgeries, medications, physiotherapy, rehabilitation — the patient is entitled to compensation for all such expenses. This includes anticipated future expenses.

Non-Pecuniary Damages (Emotional Distress)

Mental suffering, diminished quality of life, and harm to dignity may all be assessed as non-pecuniary damages. Typically, such damages are assessed as a fixed sum, according to the extent of harm and duration of suffering.

Legal Costs

In some cases, the patient is entitled to compensation for legal expenses, including attorney's fees and costs of legal investigation. This depends on the court's decision and the relationship between the sums involved.

The Medical Malpractice Claim Process in Israel

The process of filing a medical malpractice claim in Israel is complex and requires several stages. Understanding these steps helps the patient be prepared and know what to expect:

Stage One: Initial Legal Consultation

At this stage, an attorney experienced in medical malpractice reviews the case, listens to the patient's account, and examines the medical documentation. The attorney assesses the strength of the claim, the likelihood of success, and potential compensation amounts. This is also the time to raise any questions and concerns.

Stage Two: Evidence and Document Collection

The attorney will request all relevant medical documentation — medical records, imaging, test results, physician notes. Additional examinations or expert testimony may be necessary. This stage can take weeks or months, depending on the complexity of the case.

Stage Three: Obtaining Expert Medical Opinion

Typically, the attorney will consult with a specialist physician in the relevant field (surgery, internal medicine, dentistry, etc.) to provide an opinion on the breach of duty. This opinion is critical — it forms the basis of the claim that malpractice occurred.

Stage Four: Sending a Demand Letter or Notice of Intent to Sue

Before filing a formal lawsuit, the attorney will typically send a written demand letter to the hospital or physician, detailing the claims and demanding compensation. In some cases, this leads to a settlement without the need for full litigation.

Stage Five: Filing a Lawsuit in Court

If no settlement is reached, the attorney will file a formal lawsuit in the competent court (usually a district court). The lawsuit will include all claims, evidence, and the compensation demand.

Stage Six: Litigation Process — Discovery, Hearings, and Negotiation

During the proceedings, both parties will exchange documents (discovery), there may be court hearings, and settlement negotiations may occur. In some cases, the court may offer arbitration or mediation.

Stage Seven: Judgment or Settlement

In the end, the court will decide the case — either ruling in favor of the patient and awarding compensation, or dismissing the claim. Alternatively, the parties may reach a settlement at any stage of the proceedings.

Duration: Medical malpractice claims can take years to resolve. This depends on the complexity of the case, court dockets, and the parties' willingness to reach a settlement.

Statutes of Limitations in Medical Malpractice Claims

In Israel, there are time limits for filing a medical malpractice claim. If a claimant waits too long, they may be unable to file a claim at all. This is a critical issue that is important to understand:

General Limitation Period

Generally, a claim for medical malpractice must be filed within three years from the date the injured party discovered the damage, or should have discovered it under reasonable circumstances. This is not always from the date of the negligent treatment — but from the date of discovery of the damage.

Exceptions and Special Situations

In some cases, there may be exceptions to the limitation period. For example, if the injured party is a minor, or if they were unable to understand the damage (due to mental or physical condition), the period may be longer. Each case is examined individually.

Due to the complexity of limitation laws, it is very important to consult with an attorney as soon as possible, at the moment there is suspicion of medical malpractice. Do not delay — time passes, and the opportunity to file a claim may disappear.

Why You Should Consult an Experienced Medical Malpractice Attorney

Medical malpractice claims are complex and require deep knowledge of tort law, legal procedures, and medical standards. An experienced attorney in this field will be able to:

• Accurately assess the strength of your claim based on the circumstances of your case.
• Gather strong evidence — medical documentation, expert opinions, testimonies.
• Develop an effective legal strategy tailored to the type of harm and the nature of the breach.
• Negotiate with the hospital or their insurance company to achieve a better settlement.
• Represent you in court, if your claim reaches that stage.
• Protect your rights at every stage of the proceedings.

An experienced medical malpractice attorney also understands the intricacies of Israel's legal system and can help you avoid mistakes that could harm your claim.