Medical Malpractice Claim: A Practical Guide, Step by Step

A medical malpractice claim is a legal proceeding in which a patient who has suffered harm due to medical treatment, misdiagnosis, poor follow-up, or lack of informed consent seeks compensation from the medical institution or healthcare provider. To establish a claim, it must be proven that the treatment deviated from the accepted medical standard, that actual harm was caused, and that a causal link exists between the negligence and the harm.

Table of Contents:

• What is a medical malpractice claim?
• What needs to be proven to win the claim?
• The legal difference between a known medical complication and medical malpractice
• In what common medical situations can filing a claim be considered?
• Informed consent and the doctrine of "infringement of autonomy"
• Evidentiary aspects and the law of evidence in medical malpractice
• Whom do you sue and who is entitled to sue?
• Practical aspects and costs in managing the case
• Practical guide: Suspecting medical malpractice? Step by step
• Medical Malpractice Claim - Frequently Asked Questions (FAQ)

In every medical procedure, there are risks and possible complications, and not every harm caused to us as patients is the result of negligent treatment or a mistake by the medical staff. Still, sometimes the harm caused to us is the result of negligence, and we have the right to claim compensation and receive the full rights we deserve. How do we know when we have grounds to file a medical malpractice claim and when we don't? How do you even approach a medical malpractice lawsuit, and what is required to prove it? What compensation can we expect to receive, and how long does it last? This article will cover those points.

What is a medical malpractice claim?

Medical malpractice is negligence committed by a healthcare professional – a doctor, nurse, dentist, technician, hospital, or hospital employee – whose performance deviated from the accepted standard of those with similar training and experience, resulting in harm to the patient or patients. A medical malpractice claim, based on the tort of negligence in the Torts Ordinance, is a lawsuit to receive compensation for the damage caused to the patient as a result of that negligence.

What needs to be proven to win the claim? - The Three Pillars

Patients harmed by a medical entity can file a civil lawsuit and receive compensation for medical expenses, loss of wages, pain and suffering, and more. When a claim is filed for medical malpractice, it is important to know what must be proven for it to be accepted. In these claims, there are three main components to proving a case of medical malpractice: negligence, damage, and a causal link.

The Existence of a Duty of Care and the Doctor's Negligence (The "Reasonable Doctor" Test vs. Accepted Practice)

The first pillar in malpractice claims is the existence of a doctor's duty of care toward the patient and the breach of that duty.

Under this framework, it must be proven that the medical entity (doctor/nurse/health fund/hospital, etc.) breached its duty of care toward the patient through a negligent act or omission. All medical professionals, including doctors, surgeons, anesthesiologists, and nurses, owe a certain standard of care to the patients they treat. If the medical entity's actions deviate from the standard of care, it breaches this duty.

In a medical malpractice lawsuit, the court examines whether the doctor breached the duty of care owed to the patient, with the standard for evaluating negligence being that of a reasonable doctor under the circumstances of the case. In other words, would a "reasonable doctor" with identical experience and expertise to the allegedly negligent doctor have acted in the same way under similar circumstances?

The Damage Caused to the Patient (Physical, Psychological, or Financial)

To prove a tort claim in general and a medical malpractice claim in particular, it is necessary to prove that the patient suffered damage. The damage can manifest in various ways, such as physical damage, psychological damage, and even economic damage (harm to earning capacity, financial losses, etc.).

The Causal Link (Factual and Legal) Between Negligence and Damage

A causal link in tort law is used to prove malpractice claims. This is the third pillar in medical malpractice lawsuits, and its purpose is to connect the breach of the duty of care by the doctor (the negligence) to the damage caused to the patient. Under this framework, it must be proven that the patient suffered the damage as a result of the negligent act and that a causal link exists between these two factors. The burden of proof for the existence of a causal link rests on the plaintiff themselves (except in exceptional cases), and if they fail to prove that link, the claim will be dismissed.

Factual Causal Link – This is a continuous link connecting the entire chain of events that occurred – from the conduct of the medical entity to the damage caused to the patient. This link is tested using the "but-for" test. The court examines whether the damage would have been caused but for the behavior. If the answer is negative, it will be determined that a factual causal link existed.

Legal Causal Link – Its purpose is to determine whether the act committed by the negligent entity caused a result that justifies imposing liability on them. This link is examined only after a factual causal link is established, and it is tested according to three different tests to define the boundaries of the medical entity's liability. The main test is the foreseeability test, which checks whether a reasonable person could have anticipated that the act committed would lead to the result that actually occurred. Another test is the risk test, according to which it must be proven that the negligence is linked to the damage not only as an event but also in the type of danger. The third test is the common sense test, which evaluates whether the connection between the act and the result is logical or if it is a strange and convoluted chain of events, meaning liability should not be imposed on the doctor because of it.

The Legal Difference Between a Known Medical Complication and Medical Malpractice

Medical procedures often involve risks and complications – small and large alike. Even when the medical entity provides cautious treatment, complications can arise. The difference between an unfortunate medical complication and actionable medical malpractice is significant, and not every adverse outcome is grounds for a lawsuit. The main difference between a medical complication and negligence lies in the standard of care and the outcome: a complication is a natural risk of the medical procedure, whereas negligence stems from a deviation by the medical staff from the accepted standard. A core component of the difference between a complication and negligence is the duty to inform – the patient's informed consent to the treatment, despite the risks and complications presented to them.

In what common medical situations can filing a claim be considered?

Medical malpractice can occur across many healthcare settings, including hospitals, health fund clinics, dental clinics, and private clinics. With peak pressure on healthcare services, errors are unfortunately becoming more common.

Malpractice in Diagnosis and Testing (Delayed Diagnosis of Diseases, Incorrect Interpretation of Imaging)

A timely diagnosis can be the difference between life and death, especially when dealing with severe medical conditions like cancer, infections, and neurological or cardiovascular diseases. However, medical malpractice in diagnosis remains one of the most common forms of medical malpractice, often leading to severe complications, unnecessary suffering, and even preventable deaths. When a medical entity fails to recognize or ignores symptoms, misinterprets test results, or fails to refer for required tests, patients can lose critical time needed for effective treatment.

Malpractice in Treatment and During Surgery (Severe Surgical Errors)

Surgeons, anesthesiologists, and other medical entities must provide care that meets a reasonable standard and protect patients from preventable harm. This includes care provided before, during, and after surgeries or other medical procedures.

Not all complications resulting from surgery or other procedures are the result of negligence. A claim is possible only if the care provided by a medical professional fails to meet the expected standard, resulting in harm. Medical malpractice in surgeries can occur in both necessary and elective surgeries (such as cosmetic and plastic treatments).

Common types of surgical errors: infection due to foreign objects left in the patient's body, injuries to nerves, blood vessels, or other parts of the body, choosing the wrong surgical instrument or using an instrument incorrectly, anesthesia errors, delayed diagnosis of post-operative infections, performing surgery on a patient who is not a suitable candidate, performing surgery on the wrong part of the body, or performing surgery without consent.

Malpractice in Administering Medications (Incorrect Dosages, Lethal Combinations, Lack of Follow-up)

Medical malpractice in administering medications occurs when the medical entity deviates from the accepted standard of care in prescribing a medication, dispensing it, or monitoring its intake, thereby causing harm to the patient. A failure in prescription management can lead to severe health complications (physical and psychological), cause permanent damage, and even death.

The common errors in drug treatment are:

Administering an Incorrect Dosage – Overdosage that can lead to poisoning or organ collapse, or under-dosage that can cause the medical condition to worsen.

Drug Combinations – Incompatibility between the medications prescribed to the patient, which creates a dangerous drug interaction and can cause significant harm.

Lack of Follow-up – Failure by the doctor or treating team to monitor the medication intake, for example, through periodic blood tests, to ensure that the medications are not harming the patient's internal organs.

Malpractice in Pregnancy and Childbirth (Wrongful Birth, Undiagnosed Defects, Birth Injuries Such as Shoulder Dystocia or Hypoxia)

A medical malpractice claim in pregnancy and childbirth refers to the negligence of medical professionals during pregnancy or within the framework of delivery, deviating from the accepted medical standard. In cases of medical malpractice during pregnancy and childbirth, severe harm can be caused to both the mother and the baby, and in some cases, death.

Malpractice claims during pregnancy most commonly refer to a failure to diagnose defects. That is, cases where the doctor failed to diagnose a genetic or physical defect in ultrasound scans on time or misdiagnosed them. Other common malpractice cases include poor genetic counseling or failure to refer for genetic counseling, as well as negligent pregnancy follow-up (lack of monitoring for blood pressure, diabetes, infections, and vaccinations).

When it comes to medical malpractice during childbirth, common cases include ignoring signs indicating fetal distress, mismanagement of delivery (including incorrect use of equipment or absence of a doctor), and medical malpractice in a cesarean section, such as avoiding an urgent cesarean section in situations of shoulder dystocia or hypoxia.

Parents whose child is born with a disability due to a failure to diagnose during pregnancy can file a medical malpractice claim under the cause of action known as "wrongful birth." According to this cause of action, the medical staff's negligence deprived the parents of their right to choose whether they wished to continue the pregnancy or perform an abortion when it was still possible.

Malpractice in Follow-up, Supervision Combined with Premature or Negligent Discharge from Hospitalization

Sometimes, patients are left without essential medical care at a critical time or are sent home from the hospital before they are truly ready. These situations can be considered medical malpractice. A lack of follow-up and supervision can lead to life-threatening conditions such as internal bleeding, infection, or pulmonary embolism. Premature discharge from the hospital can lead to re-hospitalization and an irreversible worsening of the patient's health status.

Informed Consent and the Doctrine of "Infringement of Autonomy" (Compensation Without Physical Damage)

The Patient Rights Law stipulates that a medical entity must obtain the free and informed consent of the patient for any medical procedure (except in exceptional cases such as a person unable to make decisions on their matter or in emergency situations – and even here there are qualifications), and treatment must not be provided without obtaining informed consent.

Under the disclosure duty, the doctor/medical entity must provide the patient with all the medical information necessary to allow them to make a decision regarding it. The information includes the existing treatment options (including the absence of treatment), advantages and disadvantages of the treatment options, and possible risks and complications.

The doctrine of "infringement of autonomy" allows for receiving compensation for the breach of the disclosure duty – informed consent even without proving physical damage. The compensation is awarded for the mental anguish caused by the infringement of autonomy and the deprivation of the right to choose.

Evidentiary Aspects and the Law of Evidence in Medical Malpractice

To prove a medical malpractice claim, it must be shown that the healthcare provider did not adhere to accepted medical standards and caused the patient preventable harm. A medical malpractice claim relies heavily on medical records, a professional expert opinion from a specialist in the relevant field, treatment documentation, and evidence indicating that the patient suffered harm as a result of negligent treatment.

The Importance of the Medical Record and Shifting the Burden of Proof Due to "Evidentiary Damage" (Missing Documentation)

In medical malpractice claims, the medical record is of decisive importance, and its role is to point out the failure in the medical entity's conduct and the damage caused to the patient as a result. As noted, in medical malpractice claims, the burden of proof is on the plaintiff themselves, who must establish negligence, damage, and a causal link. According to the Patient Rights Law, every patient has the right to receive the full medical record regarding them from the institution or entity where they were treated. In cases where the patient applied to receive the medical file and incomplete information was received or no information was received at all, the burden of proof shifts to the sued medical entity, which will have to prove that it was not negligent.

When Does the Rule "The Thing Speaks for Itself" Apply and the Defendant is Forced to Prove They Were Not Negligent?

Section 41 of the Torts Ordinance anchors the rule "the thing speaks for itself" in law and allows for shifting the burden of proof to the defendant (the medical entity). According to the law, this rule will manifest when the plaintiff did not have the ability to know what the circumstances were that caused the case, when the damage was caused by an object or entity that was under the full control of the defendant, and when it is more likely that negligence occurred than that it did not.

Why is a Medical Expert Opinion Required (and Why Can't a Claim be Filed Without It)?

A medical opinion is an integral part of a medical malpractice claim, and a claim cannot be filed without it. The professional expert opinion has a decisive role in several areas – first, proving the breach of the duty of care by the medical entity (i.e., the negligence). The expert doctor steps into the shoes of a reasonable doctor, examines how they would have acted under similar circumstances, and determines based on this whether it indeed constitutes negligence. Second, the expert opinion evaluates the damage caused to the patient (damage that constitutes the basis for receiving compensation), and third, it assists in proving the causal link between the damage and the negligence. Furthermore, judges are not medical experts and cannot know what the accepted medical standard is; the expert doctor provides them with these answers.

Whom do you sue and who is entitled to sue?

In a medical malpractice claim, the patient who suffered harm (or their estate and family in cases of death) is entitled to claim compensation. The lawsuit is usually filed against the treating professional (doctor, nurse) and against the medical institution.

Whom can you sue? (The Treating Physician, the Health Fund, the Hospital, the State of Israel)

A medical malpractice claim is filed against the direct medical provider, via the insurance company that covers them with professional liability insurance. Concurrently, the claim is filed against the medical body that employed them (if they are not a private doctor). Thus, in cases where the medical institution belongs to a health fund – the lawsuit will be filed against the health fund; in cases where the medical institution belongs to the state – the lawsuit will be filed against the state; and in cases of a private clinic – the lawsuit will be filed against the operating company.

What Happens if the Patient Dies as a Result of the Negligence? Estate Claim vs. Dependents Claim

The patient harmed by the failed treatment is entitled to file the medical malpractice claim. In cases where the patient dies, their estate or family can file a lawsuit.

In an estate claim, the deceased's estate "steps into their shoes," and its purpose is to compensate for the suffering caused to them up until their death. It is filed by the heirs, and compensation can be claimed for pain and suffering, medical expenses, burial expenses, and compensation for the lost years (calculation of the income they were expected to receive had they not passed away).

A dependents claim is not a claim by the deceased themselves (via the heirs), but an independent claim by their family members – spouse, children up to age 18, or others dependent on them, and its purpose is to cover the financial loss caused to them following the death of the provider who supported them. Under this framework, compensation can be claimed for the deceased's income and pension and compensation for the loss of services.

Practical Aspects and Costs in Managing the Case

How much does it cost to file a medical malpractice claim (legal fees in percentages vs. expert costs and court fees)?

Filing a medical malpractice claim involves various costs:

• Court fee – The plaintiff is charged an initial fee by the court depending on the jurisdiction where the claim is filed. Later in the proceeding, one of the parties will be charged for the remaining unpaid fee.
• Lawyer's fee – In medical malpractice claims, the fee amount is derived from the compensation awarded, usually ranging between 20-30 percent of the sum.
• Payment for obtaining a medical opinion – The amount paid depends on the professionalism, expertise, and experience of the expert and the complexity of the case, and can reach tens of thousands of shekels.
• Payment for collecting medical records.

What compensation can be received (loss of wages, third-party assistance, medical expenses, pain and suffering)?

Compensation in medical malpractice claims is based on the damage caused to the patient and is divided into two types – pecuniary damage and non-pecuniary damage. Pecuniary damage includes compensation for damages that can be quantified, such as compensation for loss of wages, third-party assistance, medical expenses, and more. Non-pecuniary damage is damage that cannot be quantified and is subject to the court's discretion. Under compensation for non-pecuniary damage fall heads of damage such as pain and suffering, mental anguish, and more.

The Statute of Limitations Period in Medical Malpractice (The Standard Rule, the Late Discovery Exception, and the Limitation for Minors)

According to the Statute of Limitations Law, the timeframe within which a claim can be filed for medical malpractice stands at 7 years, and it is counted from the day the cause of action accrued – meaning, from the moment the negligent treatment that caused the damage was administered. However, in cases where the damage was not discovered at the time of the negligent event, the statute of limitations in medical malpractice period will be counted from the day the damage was discovered, provided that 10 years have not passed from the day of the negligent event, according to the Torts Ordinance.

The Statute of Limitations Law also establishes exceptions to the start of the limitation period. Thus, in cases where the injured party is a minor, the limitation period will be counted only from the moment they reach adulthood. Meaning, upon reaching the age of 18, the limitation period will begin, and they can sue for malpractice until age 25. Another exception exists regarding a person who is unable to make decisions on their matter (whether due to a physical or mental condition); in these cases, the limitation period may be suspended.

Practical Guide: Suspecting Medical Malpractice? Step by Step

What should be done (and what must not be done) as soon as suspicion arises?

If you believe that your medical treatment was negligent, it is important to act quickly and wisely. Although it takes a long time to file medical malpractice claims, their complexity requires legal support from the very first step. Therefore, it is recommended to contact a lawyer specializing in medical malpractice as soon as possible to clarify your rights and examine whether your suspicion is indeed justified. If there are grounds for a claim, the lawyer will guide you on how to proceed.

At the same time, it is important to emphasize that there are things you should avoid – do not confront the medical staff, do not delete information, and above all – do not let time pass. The faster you seek legal support and build the claim, the lower the chances that information and evidence will be lost.

Collecting a Full Medical Record and Building the Case Narrative

The next step after seeking legal support is collecting the medical records and building the case narrative. The lawyer will assist and guide on how to obtain the full medical record (to which you are entitled by law). It is important to contact all the medical institutions where you were treated and obtain documentation for every encounter with a doctor, test, scan, hospitalization, etc. Using the medical file you collect, the timeline on which the claim will be based is built, demonstrating how the treatment was negligent.

How is a Medical Malpractice Claim Conducted in Court? (Demand Letter, Pleadings, Mediation, Evidence)

Many medical malpractice claims are filed in court in Israel, but ultimately few of them reach a court ruling, and most end in a settlement.

In principle, before filing the claim, the lawyer will send a demand letter (warning letter) to the medical institution or doctor. In this document, they will detail the facts of the case and invite the recipient to conduct negotiations and reach a settlement before opening the proceeding in court.

If this does not succeed, the statement of claim will be filed in court – either the Magistrates' or District Court depending on the amount of compensation demanded – describing the unfolding of events and backed by a medical expert opinion, which is a mandatory condition in medical malpractice claims.

Following this, a statement of defense will be filed by the defendants, detailing their position on the claims and usually including a counter-medical opinion to dispute the claim of negligence.

The next stage is the stage of preliminary proceedings and disclosure of documents, during which both parties are required to exchange information relevant to the case. After that, in many cases, the parties will turn to mediation in an attempt to reach a settlement outside the courtroom.

If a settlement is not achieved, the evidentiary stage will begin; this is the stage where the prosecution and defense call witnesses on their behalf (including the medical expert). At the end of the evidentiary stage, the parties will submit their summations, and based on the totality of evidence and arguments, the court will rule and determine whether medical malpractice occurred, and if so, what the amount of compensation due to the injured party is.

The Disciplinary vs. Civil Path: A Complaint to the Ministry of Health or a Financial Lawsuit?

When a doctor fails in their conduct, action can be taken against them in two ways – a complaint to the Ministry of Health or a financial lawsuit. Within the framework of a complaint to the Ministry of Health, ministry representatives will examine the case and decide whether there is room to impose sanctions on the doctor (a monetary fine or even license revocation). It is important to remember that a complaint to the Ministry of Health is designed to protect the public from recurring acts of negligence by the doctor or medical entity and to penalize the doctor for their actions.

At the same time, a complaint to the Ministry of Health does not conflict with filing a civil lawsuit for compensation. This lawsuit, a medical malpractice claim, is intended to allow the injured patient to receive compensation for the damages caused to them. It is possible to act on both levels and file a complaint with the Ministry of Health concurrently with filing a lawsuit.

Medical Malpractice Claim - Frequently Asked Questions (FAQ)

Does every error or mistake by a doctor allow for filing a lawsuit?

Not every mistake by a doctor or medical institution constitutes medical malpractice, and there are cases of a honest error in professional judgment. To prove medical malpractice, it must be shown that the doctor or medical staff deviated from the accepted treatment standard and thereby caused damage, establishing the causal link between the negligent treatment and the damage.

Does a severe treatment outcome or death in itself prove that the staff was negligent?

No, a severe treatment outcome or death does not prove that the staff was negligent. Sometimes, even if all professional precautions were taken, complications can still arise. To prove negligence, a deviation from the accepted medical standard, damage to the patient, and a causal link between them must be established.

Can compensation be claimed in medical malpractice without permanent/irreversible damage?

Irreversible damage is not a condition for receiving compensation in medical malpractice claims. Even in cases of temporary damage, compensation can be obtained, and the main objective of the claim is to prove the actual damage. Compensation for temporary damage can include significant temporary suffering, medical expenses, loss of wages, and more.

Does signing consent and surgery forms before the procedure prevent me from the right to sue?

Signing an informed consent form does not grant immunity from medical malpractice claims. First, even if the disclosure duty was fulfilled, if the doctor did not meet accepted standards, there may be grounds for a malpractice lawsuit. Second, it must be verified that the patient not only signed the form but fully understood the implications of the treatment and received all information prior to signing, in accordance with the law.

How long on average does a legal proceeding for a medical malpractice claim last?

A legal proceeding for a malpractice claim can last years in court. However, in most cases, malpractice claims end in a settlement, which significantly shortens the duration of the proceeding.

• Summary and Legal Disclaimer

  Medical malpractice claims are lawsuits that require knowledge, legal understanding alongside medical insight. Combining the legal and medical aspects creates great complexity, and therefore expertise and comprehension of this field are required to lead to the success of the claim. Additional complexity lies within the plaintiff themselves – the person at the heart of the storm, who is required to deal with legal proceedings while coping with a challenging medical and emotional state. Despite all the complexity and sensitivity involved, it is right that anyone who believes they underwent negligent medical treatment should act to exhaust their rights and demand the compensation due to them. The compensation amount can assist them in rehabilitating their life and receiving the justice they deserve.

  This information does not replace legal representation or advice.