Between 2005 and 2015 the number of medical malpractice lawsuits filed in Israel rose 30 percent, and the amounts awarded by courts to plaintiffs doubled. Since 2005, public medical institutions paid out more than 2 billion shekels ($571 billion) in claims. One of the reasons for the significant rise in the number of claims and the court-awarded damages is the expansion of the grounds for suits to include not only concrete harm to health but also the violation of patient autonomy and the wider damage to the patient’s family.
In 2015, general hospitals paid out 220 million shekels in malpractice compensation, primarily for claims of negligent care and erroneous diagnoses. In addition, tens of millions of shekels were paid out by psychiatric hospitals, geriatric centers and health clinics all over the country. During 2015 there were 1,805 suits filed, compared to 1,184 in 2005.
These and other statistics were presented at the annual conference of the Israel National Institute for Health Policy, this week, which focused on the issue of medical malpractice.
The main question conference participants seek to address is what this sharp increase in malpractice suit reflects, given that 21st century medicine has an ever-growing toolbox for diagnosis and treatment at its disposal. Does it mean there is more actual negligence? Does it reflect a greater number of errors as a result of the increasing overload on the system? Or is it evidence of greater awareness and involvement by patients and their families in everything related to medical decisions? No less important is whether the fear of malpractice suits influences the way decisions are made in the health system, and if so, how.
In a broader sense, many interpret the rise in malpractice suits as demonstrating the reduced trust of patients in the medical system. “Medicine is not an exact science and therefore cannot guarantee the absolute success of every treatment,” the conference’s steering committee wrote in an introductory document. “Missteps in medical treatment are inevitable and not every error or mishap in medical treatment is necessarily malpractice.”
Even so, “Research shows that the vast majority of patients want to know about every mishap that occurs during treatment, no matter how insignificant, while other studies show that doctors tend to conceal information from their patients and don’t reveal mistakes that they’ve made. This gap, when the patient finds out about it, seriously undermines the trust between him and the physician, and is the basis of most medical malpractice suits filed against doctors.”
According to a study conducted by attorney Omer Peled of Tel Aviv University, which examined malpractice suits over the past five years, courts rule in favor of the plaintiffs in 48 percent of the cases. The main claim in the suits that were decided was that the treatment was negligent or that there was an error in diagnosis. Forty-nine percent of all the lawsuits claimed there had been negligent performance by a medical procedure; 31 percent claimed negligence in diagnosis, 16 percent claimed negligence in the choice of treatment, 7.5 percent complained about the monitoring of the patient in the hospital ward and 5.5 percent claimed negligence in post-operative treatment.
Claims relating to pregnancy and birth were especially dominant, Peled found; more than 46 percent of the cases that reach the courts involved the field of obstetrics.
“Some 60 percent of the compensation paid out in medical malpractice cases are in the areas of pregnancy and birth,” says Peled. “This is surprising, because in the world’s professional literature, obstetrics is known as a field typified by what’s known as ‘defensive medicine’ — medicine in which some decisions are made out of concern for legal liability.
“When we interviewed doctors, we saw that they had a very serious fear of legal liability, they feel victimized and this influences treatment decisions. It’s no coincidence that in Israel the rate of amniocentesis is very high compared to other Western countries. Even though this is a test that carries a risk, a doctor that orders it will not bear any liability if something happens, but a doctor who avoids it is exposed to liability.”
His study shows that in malpractice cases involving pregnancy and birth, courts generally rule against the doctors and compensation has been rising over the years, reaching or exceeding 10 million shekels. While the average compensation in malpractice cases comes to half a million shekels, in obstetrics cases the average is 1.4 million shekels.
Another area of malpractice that has expanded over the past several years relates to informed consent, a lack of which is deemed as having undermined the patient’s autonomy. The Patients Rights Law requires the informed consent of a patient for all medical treatments, and failure to explain a procedure properly so that consent is indeed “informed” is considered negligence.
“In the past, compensation for violating the patient’s autonomy was around 50,000 shekels, but the sums have risen dramatically and are now around 234,000 shekels,” says Peled.
On factor contributing to these higher awards is an increasing number of lawsuits for “wrongful birth,” cases in which parents say doctors failed to give them information about fetal defects that would have led them to terminate a pregnancy. In such cases compensation can reach 650,000 shekels to each parent (1.3 million shekels per couple) just for the autonomy violation, in addition to other damages.
The health system is seeking new ways to cope with medical malpractice cases other than in the courtroom.
“Courtrooms are not the ideal places for dealing with complex medical issues, or for the various medical institutions to learn and draw conclusions,” says Prof. Zamir Halperin, the scientific director of the Israel National Institute for Health Policy. “It’s time for a real reform in the area of medical malpractice in Israel that will benefit both the patient and the health system.”
Peled notes that while one might expect that every patient who experiences medical negligence will sue, that’s far from the case. A study by Harvard University shows that just 6 percent of those who are harmed by medical negligence file a malpractice suit. “In Israel this issue hasn’t been studied but there are signs that it isn’t so different,” he says.
Still, as far back as 2011, a State Comptroller’s report noted the sharp rise in malpractice suits and in the national outlay for medical malpractice.
The Health Ministry says the increasing number of lawsuits isn’t necessarily stemming from more actual medical negligence. There’s no question that there is more awareness of the option of filing a malpractice suit, while at the same time the courts have been broadening the liability of physicians and other medical professionals as well as medical institutions; this pushes up the compensation awards, which tends to encourage more lawsuits.
But there are other issues and influences at work, according to Dr. Udi Frishman, an expert in health policy and medical malpractice. He points to the overburdened health-care system, doctors’ arrogance and the introduction of new technologies as three factors that have contributed to the increase in malpractice suits.
“The moment a doctor sits with a patient knowing there are another 15 patients waiting outside, the ability to give time and attention to analyzing a patient’s tests is reduced,” Frishman explains. “A person comes to the doctor and the doctor doesn’t notice that his hemoglobin has been low for three months and it turns out he could have found a cancerous growth in time.” This pressure exists throughout the health system, from community clinics to large hospitals.
He also believes that the arrogance of some doctors contributes to negligence. “We still see many doctors who feel a sense of superiority over their patients; they dismiss their complaints and their ideas, and often this leads to the doctor missing something; the result is malpractice that could even lead to a patient’s death,” Frishman says.
Another issue, also linked to physicians’ overconfidence, is a lack of sufficient experience with new medical technologies. “The technologies keep evolving and require a learning curve; the earlier the stage of assimilating a new technology, the more caution and precision is needed,” Frishman says. “We are seeing that too often doctors don’t exhibit the proper attention, caution and care required when dealing with a new technology.”
According to Frishman, dealing with medical malpractice on a systemic and legal level is important not just to provide compensation to the patient but to learn the lessons needed to prevent future instances of negligent treatment.
“The problem is that some doctors feel under attack and try to fight the phenomenon [of increased complaints] rather than embrace and extract the maximum from it,” he says. “This approach is the reason that nowadays it’s difficult to find doctors who will give a professional opinion in medical malpractice cases. It’s the guild’s conspiracy of silence.”