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He will receive compensation of NIS 11 million - because they did not prevent his birth

A 27-year-old man sued Clalit and Nahariya Hospital through his brother for deciding to give birth even though the signs showed that they had to act to terminate the pregnancy.

Judge: "Joint injustice of health insurance fund and hospital"

Tags

• disability

• Medical Malpractice

David Rosenthal

Thursday, October 22, 2020, 12:20 p.m.

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In the video: The Minister of Finance meets with the heads of the disabled organizations (Walla! NEWS system)

A rare ruling was recently given against Clalit Health Fund and Nahariya Hospital - which stipulated that a young man (27) suffering from cerebral palsy, mental retardation and schizophrenia should be compensated with NIS 9 million, plus 23% legal expenses and attorneys' fees. The

lawsuit was filed by the young man's brother, who serves as his guardian, through attorney Tali Treiband, and was heard in the Central District Court in Lod before Judge Irit Cohen. The

lawsuit alleges that the doctors who treated the mother's unwanted pregnancy were negligent and should have acted to terminate it. Before the plaintiff was born, the mother, who suffered from schizophrenia after the deaths of two of her children, unexpectedly became pregnant at the age of 43, a pregnancy that ended in the plaintiff's birth, born as a 900-gram premature infant with severe disabilities, in the 29th week of pregnancy.

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According to the lawsuit, when the pregnancy begins, the doctors at Clalit Health Insurance Fund will not inform the mother that due to her older age and difficult mental condition, she has the right to request termination of pregnancy even regardless of finding fetal malformations. The claim that the mother would terminate the pregnancy. That is if she had been informed the possibility was rejected by the court.

The opinion of Prof. Israel Teller, an expert in obstetric gynecology, which was attached to the lawsuit and was largely accepted by the court, stated that HMO doctors were negligent in not performing growth monitoring as required in the fetus, and did not warn in advance of severe deviations from the norm. Defective.

Dr. Mira Ginzberg, an expert in pediatric neurology and child development whose opinion was attached to the lawsuit, and was also accepted by the court, states that the many malformations the plaintiff suffers from indicate a genetic syndrome, and that the plaintiff's damages stem from this syndrome. , These malformations were supposed to be detected in advance by the HMO, and required immediate termination of pregnancy.

Adv. Tali Treiband (Photo: Natalia Schur)

The mother was eventually referred for abortion, in the 27th week of her pregnancy, due to a heart defect that was discovered in the fetus, but although she arrived at Nahariya Hospital with the intention of terminating her pregnancy and suffered from continuous bleeding at the time - and declared this to the doctors, she was released home And was summoned for further investigation, which she did not have time to conduct, since she gave birth to her son prematurely - the next day.

Judge Cohen rejected the hospital's version that the woman came to him for tests and not to terminate the pregnancy, and relied on the doctors' correspondence, which explicitly stated that the mother did not intend to become pregnant, the mother's arrival at the social services, and the testimony of the doctor who received the Mother on the same day - according to which she reached the termination of pregnancy.

According to Prof. Teller, the day before the birth, the medical staff faced the following condition: a fetus with a heart defect and severe intrauterine growth retardation, which worsened compared to earlier stages of pregnancy, a finding that predicts many syndromes along with persistent bleeding and a woman with psychiatric problems.

This situation, Prof. Teller argues, obliges the woman to remain hospitalized - both in view of the condition of the fetus and the ongoing bleeding and in view of the mother's distress - as well as convening an immediate committee and terminating the pregnancy - as much as the parents wish, as they did.

On the other hand, the mother was asked to return only three days later for further clarification, when it is not clear what the same clarification to which she was invited.

Judge Cohen ruled that in the circumstances of the case, the doctors had to hospitalize the woman and terminate her pregnancy, and therefore Nahariya Hospital is responsible for the plaintiff's birth and his severe injuries.

"I reject the HMO's claim that the hospital's actions sever the causal link between its negligence and the plaintiff's damages. ".

Judge Cohen ruled.

In addition, the judge ruled that "the hospital's responsibility is not that it did not accept the diagnosis of a heart defect in the fetus, but that it did not address the overall picture of a heart defect with developmental delay. The HMO negligently contributed that at the relevant time the developmental delay was not known. It did not monitor growth as required. "

The judge ruled that there was no dispute that the plaintiff's schizophrenia developed after birth and was not related to the genetic syndrome or prematurity, but regarding the retardation and cerebral palsy from which he suffers, these are more appropriate for diagnosing genetic syndrome, and therefore ruled the plaintiff 84% weighted medical disability. Of more than NIS 9 million, plus legal expenses and attorney's fees at a rate of 23%.

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