Medical Malpractice in Childbirth

Birth, the defining and powerful moment in every family's life, is supposed to be an event of joy, excitement, and hope. The expectation of embracing a healthy and whole baby is a basic right of every parent. Unfortunately, for certain families, this experience turns in an instant into a continuous nightmare. Human errors, lack of attention, or wrong decisions made by the medical staff can lead to devastating, sometimes irreversible consequences, both for the newborn and for the mother. Here enters the complex and sensitive legal field of medical malpractice in childbirth.

When suspicion arises that damage caused during pregnancy, birth, or the first days of the newborn's life resulted from poor medical treatment, it's important to understand the rights granted to you under Israeli law. Dealing with such damage is unbearable, physically and mentally, and is accompanied by enormous financial costs. Receiving appropriate compensation can ensure the child's future, provide them with the required treatments and rehabilitation, and allow the family to cope with the enormous challenges facing them.This page is intended to serve as a comprehensive and in-depth guide for parents and mothers. We will explain what medical malpractice in childbirth is according to Israeli law, detail the common cases, discuss the types of damages and compensation, and explain the process of filing a lawsuit. Most importantly, we will emphasize the crucial role of a medical malpractice attorney specializing in childbirth in dealing with this complex system.

Part 1: What is Medical Malpractice in Childbirth According to Israeli Law and Case Law?

The central question underlying every medical malpractice lawsuit is whether the medical staff acted as expected of them. Israeli law does not require doctors and midwives to be perfect or to prevent every possible complication. Birth is a natural process that inherently carries risks. However, the law requires them to act with skill, caution, and a reasonable and accepted standard of care.

Definition of Medical Malpractice: "The Reasonable Doctor Test"

The legal basis for medical malpractice lawsuits is rooted in the Torts Ordinance [New Version]. According to the ordinance, the tort of negligence consists of four cumulative elements that plaintiffs must prove:

1. Existence of a duty of care: Every doctor, midwife, and medical staff member has a conceptual and concrete duty of care toward their patients – the mother and the fetus. This duty exists by virtue of the nature of the relationship between the medical staff and the patient.
2. Breach of duty of care (negligence): This is the heart of the lawsuit. Plaintiffs must prove that the medical staff deviated from the accepted standard of care. The question asked is: Would a "reasonable doctor" or "reasonable midwife," with the same level of expertise and experience, have acted differently under the same circumstances? This deviation can manifest in wrong diagnosis, poor delivery management, delay in providing treatment, negligent use of medical equipment, and more.
3. Existence of damage: It must be proven that the mother and/or newborn suffered physical, mental, or financial damage. The damages can be varied, ranging from cerebral palsy to mental damage to the mother.
4. Causal relationship: The decisive element, and sometimes the most difficult to prove. A direct "cause and effect" relationship must be shown between the breach of duty of care (negligence) and the damage caused. In other words, it must be proven that without the negligent treatment, the damage would have been prevented or significantly reduced.

Proving these elements requires legal and medical expertise. Without the accompaniment of a medical malpractice attorney specializing in childbirth, who is versed in the intricacies of case law and legislation, and with the help of expert opinions from first-rate medical experts, the chance of succeeding in such a complex lawsuit is slim.

Part 2: Common Scenarios of Medical Malpractice in Childbirth

Medical malpractice can occur at any stage of pregnancy and birth. It's important to recognize common scenarios to identify potential warning signs.

A. Negligence in Pregnancy Follow-up (Prenatal)

Medical supervision does not begin in the delivery room. Careful and alert pregnancy follow-up is critical for early detection of problems. Negligence at this stage can manifest in:

• Failure to diagnose congenital defects: Failure to refer for essential tests (such as nuchal translucency, early and late system surveys, fetal protein testing) or incorrect interpretation of these test results, which prevented parents from making an informed decision regarding continuing the pregnancy.
• Ignoring warning signs: Failure to diagnose and treat life-threatening conditions such as preeclampsia, gestational diabetes, high blood pressure, or various infections (such as GBS).
• Incorrect interpretation of ultrasound tests: For example, extremely wrong weight assessment that led to wrong delivery management, or failure to identify intrauterine growth retardation (IUGR).

B. Negligence During Birth Itself

The delivery room is a dynamic arena where quick and accurate decisions are required. An error in judgment can have fatal consequences. Examples of negligence in delivery:

Incorrect interpretation of fetal monitor:

The monitor provides vital information about the fetus's heartbeat and condition. Ignoring signs of fetal distress (such as heart rate deceleration) and delayed response are among the most common causes of severe neurological damage.

Delay in performing cesarean section:

When there is a clear medical indication for emergency cesarean section (fetal distress, failure to progress in labor, breech presentation, etc.), any delay can cause oxygen deficiency (hypoxia) and irreversible brain damage to the newborn.

Negligent delivery management:

• Incorrect use of Pitocin (synthetic oxytocin): Giving too high a dose or without proper supervision can cause excessive uterine contractions, reduce oxygen supply to the fetus, and even cause uterine rupture.
• Negligent instrumental delivery: Unskilled use of forceps or vacuum can cause intracranial hemorrhages, skull fractures, and nerve damage to the newborn's face or shoulders (Erb's palsy).
• Negligent treatment of shoulder dystocia: A dangerous obstetric complication where the baby's shoulder gets "stuck" behind the mother's pelvic bone after the head emerges. Applying excessive force or performing wrong maneuvers can cause permanent arm paralysis (Erb's palsy).

C. Negligence After Birth (in the nursery or maternity ward)

Supervision and care do not end with cutting the umbilical cord. Negligence in the first hours and days can be disastrous:

• Failure to diagnose and treat severe neonatal jaundice: High levels of bilirubin in the blood, if not diagnosed and treated in time, can cause severe brain damage called kernicterus.
• Leaving placental remnants in the uterus: Can cause life-threatening bleeding and severe infections in the mother.
• Failure to identify and treat infections: Both in the newborn (such as meningitis) and in the mother.
• Negligence in providing initial treatments: Errors in administering medications, vaccines, or other treatments to the newborn.

Part 3: Damages, Compensation, and the Right to a Better Future

The damages caused as a result of medical malpractice in childbirth are usually severe and life-changing. The purpose of the lawsuit is to receive compensation that reflects the full extent of the damage and allows the family to provide the child with all their needs.

Types of Common Damages Due to Medical Malpractice in Childbirth

Damages to the newborn:

• Cerebral palsy (CP): Permanent neurological damage affecting movement, posture, and muscle tone. This is one of the most severe and expensive damages to treat, usually resulting from oxygen deficiency to the fetal brain during delivery.
• Erb's palsy: Damage to the brachial plexus (shoulder and arm), usually caused by excessive stretching of the baby's neck during delivery, for example in cases of shoulder dystocia.
• Cognitive and developmental damages: Mental retardation, learning difficulties, behavioral disorders.
• Blindness, deafness, and other sensory damages.
• Tragic death of the newborn.

Damages to the mother:

• Permanent physical damages: Severe tears grade 3 or 4, sphincter damage, uterine prolapse, chronic pain.
• Mental damage: Post-traumatic stress disorder (PTSD), postpartum depression, anxiety.
• Fertility impairment: Hysterectomy as a result of uncontrolled bleeding.
• Loss of work capacity.
• Tragic death of the mother.

Heads of Damage for Compensation

A judgment in a successful medical malpractice lawsuit will include compensation for various "heads of damage," whose purpose is to restore the situation to its original state as much as possible (and in case of permanent damage, to provide financial support for life):

• Medical and rehabilitation expenses for past and future: Including medical treatments, physiotherapy, occupational therapy, speech therapy, medications, medical equipment, and assistive devices.
• Third-party assistance and care: Payment for caregivers, private nurses, and household help.
• Housing and vehicle adaptation: Changes required in the home (elevator, ramps, wide openings) and purchasing an adapted vehicle.
• Lost wages and impairment of earning capacity: Compensation for parents who had to leave their jobs to care for the child, and future compensation for the child who will never be able to work and earn a living.
• Pain and suffering: Compensation for non-monetary damage – the physical and mental suffering caused to the child and mother.
• Shortened life expectancy: Compensation for "lost years."

The amounts awarded in these lawsuits can reach millions of shekels, and justifiably so. They reflect the enormous cost of raising a child with special needs throughout their entire life.

Part 4: The Process of Filing a Lawsuit – Step by Step

The legal process in medical malpractice lawsuits is complex, long, and requires patience and close professional guidance.

1. Stage 1: Collecting Complete Medical Documentation
   The first and most crucial step is collecting all relevant medical documents: pregnancy follow-up file from the health fund, all hospital records (mother's hospitalization file, birth sheet, newborn file, monitor records, test results), and any additional documents from doctors and medical institutions after discharge.
2. Stage 2: Contacting a Medical Malpractice Attorney Specializing in Childbirth
   This is the most critical stage. The importance of choosing the right attorney should not be taken lightly. You should contact an attorney for whom this is their exclusive or primary area of specialization. The attorney will examine the medical material, assess the lawsuit's chances, and guide you regarding the next steps.
3. Stage 3: Obtaining a Medical-Legal Opinion
   According to Israeli law, it is not possible to file a medical malpractice lawsuit without attaching an expert medical opinion. The attorney, in cooperation with the family, will contact a senior medical expert (usually a gynecologist, pediatric neurologist, or neonatal intensive care specialist), who will examine the medical file and determine in their opinion whether there was a deviation from the accepted standard of care (negligence) and whether this deviation caused the damage (causal relationship).
4. Stage 4: Filing the Lawsuit and Managing the Legal Process
   After receiving the opinion, the attorney will draft a detailed statement of claim and file it with the competent court. The defendant (hospital and/or health fund) will file a statement of defense and their own expert opinion. At this stage, the legal process begins, including document discovery procedures, affidavits, and in many cases, settlement negotiations. Most cases end in settlement, but if the parties do not reach agreements, the case will reach the evidence stage in court.

Statute of Limitations – The Time Window for Filing a Lawsuit

It's important to act quickly. The general statute of limitations period for tort claims is 7 years from the day of the event. However, when damage is caused to a minor, the law allows them to file the lawsuit themselves until they reach age 25 (7 years after turning 18). Nevertheless, a long wait makes it very difficult to collect evidence and prove the lawsuit, so it's recommended to act as early as possible.

Part 5: How to Choose the Right Attorney?

Choosing a medical malpractice attorney specializing in childbirth is the most important decision you will make in the process. Here are several criteria that will help you:

• Experience and specific expertise: Ensure that the attorney specializes specifically in this field and has previously handled dozens of similar cases. Don't hesitate to ask about their experience and successes.
• Connections with medical experts: An experienced attorney has a database of first-rate medical experts, whose opinions are critical to the lawsuit's success.
• Personal attitude, empathy, and availability: This is a long and emotionally charged process. You need a medical malpractice attorney who will be available for you, explain each stage patiently, and show empathy for your situation.
• Success-based fee: The accepted model in the field is paying fees as a percentage of the compensation amount received at the end of the process, and only in case of victory. This model allows even families who have fallen into financial difficulties to realize their rights.
• Recommendations and reputation: Look for recommendations from previous clients and check the firm's reputation.

Summary: Fighting for Justice and for the Future

Dealing with the consequences of medical malpractice in childbirth is a difficult and exhausting journey. It requires enormous mental strength, family support, and great patience. Alongside the emotional and physical struggle, it's important to remember that Israeli law stands by your side. Receiving appropriate compensation is not a matter of "revenge," but ensuring the future and welfare of the injured child. The compensation allows providing them with the best treatments, the most supportive environment, and the opportunity to maximize the potential within them, despite the limitations.If you suspect that you have fallen victim to medical malpractice, do not hesitate. Contact as soon as possible for an initial consultation with a medical malpractice attorney specializing in childbirth. Receiving professional and reliable information is the first and most important step in the journey to achieve the justice due to you and your family. At our LawReviews website, you will find experienced attorneys who will accompany you with sensitivity and professionalism until you receive the compensation due to you and justice.