Medical Negligence Guide — Proving Negligence and Damages

What is Medical Negligence and When Does a Legal Claim Arise

Medical negligence is a deviation from the standard behavior expected of a medical professional in similar circumstances. Not every medical error or undesired outcome constitutes legal negligence. For a medical negligence claim to arise, the plaintiff must prove several essential elements: the existence of a legal duty owed by the doctor or medical institution to the patient, a breach of that duty, a causal connection between the breach and the damage sustained, and the actual occurrence of damage.

In Israeli jurisprudence, precedents require clear proof of each element. For example, if a doctor chose a treatment method different from the standard practice, but this treatment was performed with the patient's consent and knowledge, it will not always constitute negligence. Conversely, if a doctor failed to perform a basic examination that reasonably should have led to the correct diagnosis, and as a result the patient suffered damage — this could constitute clear negligence.

Proving medical negligence is a complex process requiring thorough examination of medical records, expert medical testimony from a qualified physician, and precise legal analysis of the doctor's or institution's obligations. At Mandelboim, Gor, Witzman-Gor & Co., we have specialized in representing tort plaintiffs since 2008, including complex medical negligence claims.

The Essential Elements for Proving Medical Negligence

To present a successful medical negligence claim, you must prove all of the following factors:

• Existence of a legal relationship between the doctor/institution and the patient: This is usually easy to prove — the medical relationship itself evidences this. Hospital records, invoices, medical files, and similar documents constitute evidence.
• Existence of a legal duty: A doctor or medical institution must act in accordance with the standard of medical practice. This duty includes reasonable examination, careful diagnosis, selection of reasonable treatment, and obtaining informed consent of the patient (when required).
• Breach of duty: You must prove that the doctor or institution deviated from the standard of practice. This could be failure to perform an examination that was expected, an error in reading test results, or choosing a treatment that is not medically justified. This proof typically requires testimony from another medical expert confirming that the action deviated from the standard.
• Causal connection: You must prove that the breach of duty directly caused the damage. If the doctor made an error, but that error would not have affected the outcome of treatment, there is no causal connection and thus no legal negligence.
• Actual damage: You must prove the damage sustained — whether physical damage (pain, suffering, loss of earning capacity), emotional damage, or financial damage (additional medical expenses, loss of income).

Types of Medical Negligence — Practical Examples

Medical negligence can manifest in many different ways. Here are some typical examples:

Failure to Diagnose or Delayed Diagnosis

A doctor at a clinic did not examine a patient reasonably, or did not perform imaging or laboratory tests that were expected, and as a result a serious disease was not diagnosed in time. When the disease was later diagnosed, it had already reached a more advanced stage, and treatment became difficult or less effective. This is failure to diagnose.

Error in Treatment

A doctor chose a treatment method that is not accepted or reasonable, or performed a medical procedure incorrectly. For example: surgery in which tissue is cut that was not expected to be cut, or an error in drug dosage.

Failure to Obtain Informed Consent

A doctor did not explain the risks of treatment to the patient, or did not obtain written consent before an invasive procedure. This can constitute negligence even if the treatment itself was professional.

Negligence During Surgery

An error in the operating room — leaving a foreign object in the patient's body, accidentally damaging healthy tissue, contamination from the operating room, or an error in anesthesia.

Negligence in Practice

Issues such as failure to clean instruments, failure to maintain hygiene standards, or inappropriate notes in the patient's medical file.

Each of these examples requires thorough examination of specific circumstances, the medical record, and expert medical testimony.