Medical Malpractice During Pregnancy

Pregnancy is one of the most exciting, formative, and hopeful periods in every family's life. Nine months of intense anticipation, dreams, and planning toward the addition of a new baby to the family unit. Alongside the enormous excitement, this period is accompanied by heavy responsibility placed on the shoulders of medical teams – gynecologists, geneticists, ultrasound technicians, and nurses – entrusted with the mother's health and the proper development of the fetus. Careful, professional, and alert pregnancy monitoring is the key to ensuring the birth of a healthy baby.

But what happens when the monitoring chain fails? What happens when human error, wrong interpretation of a test, or ignoring warning lights leads to a tragic outcome? Here enters the complex and sensitive legal field of medical malpractice during pregnancy. This is not about an unavoidable complication or "fate," but about a situation where medical treatment that deviated from the accepted standard of care prevented parents from making informed decisions or caused direct harm to the fetus or mother.

The consequences of negligence in pregnancy monitoring are often devastating and life-changing. The birth of a child with a severe defect or genetic disease, not diagnosed during pregnancy, places an unbearable emotional and financial burden on the family. The purpose of this comprehensive article, presented to you by the LawReviews website, is to shed light on the subject, explain what medical malpractice during pregnancy is according to Israeli law, detail common cases, and guide you on how to act to exhaust your rights and secure your child's future.

Part 1: What is Medical Malpractice in Pregnancy Monitoring According to Israeli Law?

A medical malpractice during pregnancy claim does not argue that the doctor should have prevented the defect or disease, but that they should have diagnosed them or the risk factors for their existence, and provided parents with complete information so they could make an informed decision regarding continuing the pregnancy. The legal framework relies mainly on the Torts Ordinance [New Version] and the Patient Rights Law, 5756-1996.

"The Reasonable Doctor Test" in Pregnancy Monitoring

The central question the court asks is whether the treating physician acted according to the accepted standard of care, or in other words – would a "reasonable doctor" (a specialist and reasonable gynecologist) have acted differently under the same circumstances. This standard includes referral to all recommended screening and diagnostic tests, correct interpretation of their results, identification of risk factors, and management of high-risk pregnancy according to accepted medical practice.

Elements of the Claim

For a negligence claim to succeed, the plaintiffs (parents) must prove four cumulative elements:

1. Duty of care: The existence of this duty between a treating physician and a pregnant woman and her fetus is self-evident and not disputed.
2. Breach of duty of care (negligence): Proof that the doctor deviated from the reasonable standard of care. For example, did not refer for a vital test, incorrectly interpreted a system survey, or ignored the mother's complaints.
3. Damage: Birth of a child suffering from a disease or defect, or causing other damage to the mother or fetus.
4. Causal relationship: Proof that the negligence caused the damage. In these claims, the causal relationship is that but for the negligence, the defect would have been diagnosed and the parents would have chosen, almost certainly, to terminate the pregnancy, thereby avoiding the "damage" (enormous expenses involved in raising a child with special needs).

Cause of Action: From "Wrongful Birth" to "Violation of Autonomy"

In the past, these claims were filed under the cause of "wrongful birth." In a dramatic and foundational judgment (CA 1326/07 Hamar v. Amit), the Supreme Court canceled the child's own cause of action ("wrongful life") and determined that the cause of action belongs to the parents only. The recognized damage today is dual: monetary damage – all future expenses required for raising the child with their special needs throughout their entire life, and non-monetary damage – compensation for "violation of autonomy" of the parents, for being denied the right to choose and make an informed decision based on complete information.

Part 2: Common Cases of Medical Malpractice During Pregnancy

Negligence can occur at various critical junctions throughout the nine months of pregnancy.

A. Failure to Diagnose Fetal Defects and Genetic Syndromes

This is the most common area in medical malpractice during pregnancy claims. Negligence can manifest in:

• Wrong interpretation of screening tests: Failure to identify suspicious findings or incorrect calculation of statistical risk in tests such as nuchal translucency and biochemical screening (fetal protein), which should have raised a red flag and led to recommendation for diagnostic tests.
• Negligence in system surveys: Negligent performance of system surveys (early or late) and missing clear anatomical defects in the fetus's brain, heart, kidneys, or limbs, which could and should have been discovered.
• Failure to recommend diagnostic tests: Not referring the woman for invasive genetic tests such as amniocentesis or chorionic villus sampling, despite the presence of risk factors (such as advanced age, abnormal screening test results, or family history).
• Ignoring NIPT tests: Not explaining the possibility of performing non-invasive blood testing (NIPT) as an additional option for identifying risk of chromosomal syndromes, especially when the woman fears the risk of puncture.
• Wrong interpretation of genetic tests: Laboratory error or poor interpretation of amniocentesis results or genetic chip (CMA).

B. Negligent Management of High-Risk Pregnancy

There are medical conditions that make pregnancy a "high-risk pregnancy" and require closer and more careful monitoring. Negligence in this context includes:

• Preeclampsia: Failure to identify classic signs such as high blood pressure, protein in urine, and swelling, and lack of appropriate treatment and monitoring, a condition that can endanger the lives of both mother and fetus.
• Gestational diabetes: Late diagnosis, failure to provide appropriate dietary or drug treatment, or lack of monitoring fetal growth (which may be too large – "macrosomic").
• Intrauterine growth restriction (IUGR): Failure to identify through ultrasound measurements that the fetus is not growing properly, a condition indicating a problem with placental function and requiring close monitoring and sometimes early delivery.
• Infections during pregnancy: Ignoring or poor treatment of infections dangerous to the fetus, such as CMV, toxoplasmosis, or herpes. Another common example is failure to perform testing for GBS bacteria toward the end of pregnancy, which can cause serious infection in the newborn.

C. Negligence in Medication Administration

Prescribing a medication prohibited for use during pregnancy (a "teratogenic" drug) that causes defects in the fetus constitutes a clear cause for a negligence claim.

Part 3: Damage, Compensation, and Legal Process

As mentioned, a judgment recognizing the existence of medical malpractice during pregnancy is intended to compensate parents for the enormous damages caused to them.

Heads of Damage for Compensation:

• Special expenses: This is the main compensation component, covering all excess costs involved in raising a child with special needs throughout their entire life. This includes: medical and para-medical treatments (physiotherapy, occupational therapy, speech therapy), special education costs, third-party assistance (caregivers, assistants), housing adaptation and adapted vehicle purchase, equipment, medications, and more. These amounts can accumulate to millions of shekels.
• Violation of autonomy and pain and suffering: Compensation for mental anguish, suffering, and violation of parents' basic right to make decisions about their bodies and family's future.
• Parents' lost wages: Compensation for a parent who was forced to stop or reduce work to care for the child.

Process of Filing a Claim:

• Collection of medical documentation: The first and essential step is collecting every document related to pregnancy monitoring from the health fund, private institutes, and hospitals.
• Contacting a specialist attorney: Contact a medical malpractice attorney with specific experience in pregnancy and birth claims.
• Obtaining expert opinion: The law requires attaching an opinion from a medical expert (usually a senior gynecologist or geneticist) to the lawsuit statement, determining that there was negligence and what the causal relationship to the damage is. An experienced attorney will know how to locate the most suitable expert.
• Filing the lawsuit and managing the process: After filing the lawsuit in court, a legal process begins against the defendant (usually the health fund). Most cases end in settlement, but sometimes a full evidence process is required.

Statute of Limitations:

The law states that a claim for damage caused to the fetus during pregnancy does not become time-barred until the child reaches age 25 (7 years after reaching age 18). However, it is strongly recommended not to wait and act as early as possible.

Part 4: Choosing an Attorney – The Decision That Will Affect Your Child's Future

Managing a medical malpractice during pregnancy claim is one of the most complex legal processes. It requires not only legal expertise but also deep medical understanding in gynecology, genetics, and ultrasound. Choosing the attorney is critical to success. Look for:

• Proven experience and expertise in medical malpractice claims during pregnancy and birth only.
• Access to senior medical experts in Israel, whose opinions are admissible and respected in courts.
• Understanding of current and complex case law of the Supreme Court in the field.
• Sensitivity, patience, and personal approach, understanding the complex situation the family is in.

Summary: Turning Pain into a Fight for the Future

Dealing with the knowledge that serious harm to your child could have been prevented is an unbearable experience. However, alongside the pain and sorrow, it's important to remember that the law provides you with tools to ensure your child has the best and safest future possible. Receiving appropriate compensation does not erase the damage, but it provides essential resources for rehabilitation, treatments, and living with dignity. If you suspect you have fallen victim to medical malpractice during pregnancy, do not hesitate. Contact, consult, and demand what is due to you and your child according to law.