Medical Malpractice Under the Law: The Four Elements and How to Tell Whether Treatment Fell Below the Reasonable Standard of Care

Summary

Not every severe medical outcome indicates negligence. Israeli law examines a precise question: did the physician or the medical institution deviate from the reasonable standard of care of a reasonable physician in the same circumstances, and was it that deviation that caused the harm. In this article we explain what a medical malpractice claim is based on, what the four elements are that the plaintiff must prove, how to distinguish between negligence and a medical complication or an unfavorable outcome, what role informed consent plays under the Patient's Rights Law, and why an opinion by a medical expert is usually a cornerstone of the proceedings. The information is intended as a general explanation only and is not a substitute for individual legal advice.

What a medical malpractice claim is based on

A medical malpractice claim rests on the tort of negligence in the Civil Wrongs Ordinance. This is the same legal framework that applies to negligence in other fields, but applying it in medicine requires an understanding of the nature of the treatment, of accepted professional knowledge and of the clinical circumstances in which the medical staff acted.

The central idea is simple to state but complex to prove: a patient is not entitled to compensation merely because harm was caused, nor because the medical outcome was severe or disappointing. The patient is entitled to compensation when it can be shown that the treatment departed from what a reasonable physician would have done in the same circumstances, and that this departure is what led to the harm. For this reason, the question of negligence is not measured in hindsight by the outcome alone, but by the way decisions were made and acted upon in real time.

This distinction matters from the very first stage of looking into an inquiry. A patient who has experienced a severe outcome may be convinced that negligence occurred, but the legal and medical review may lead to a different conclusion. The first step is therefore usually an orderly collection of the medical records and an examination of them on their merits, before forming a position.

The four elements of the tort of negligence

To establish a medical malpractice claim, the plaintiff must show four cumulative elements. The absence of any one of them, even if the others are met, may lead to the claim being dismissed.

Duty of care

The first element is the existence of a duty of care owed by the physician or the medical institution to the patient. In most treatment situations this duty is not genuinely in dispute: the very treatment relationship between physician and patient, between a hospital and an inpatient, and between a health maintenance organization (kupat holim) and its member, creates a duty to act with reasonable care toward the patient. The duty is not limited to the direct treating physician; it may also apply to the medical institution, the nursing staff and other parties who took part in the treatment.

Breach of duty

The second element, and usually the core of the dispute, is breach of the duty of care. Breach is defined as a deviation from the reasonable standard of care of a reasonable physician in the same circumstances. The test is not a test of perfection and does not require the physician to be free of every possible error. The test asks whether the action, or the failure to act, matches what a reasonable physician with the same specialization would have done in similar circumstances, according to the professional knowledge accepted at the time.

The examination covers all stages of treatment: diagnosis, work-up, the decision on the course of treatment, the manner in which it was carried out, the follow-up afterward and the response to warning signs. A deviation can take the form, for example, of failing to perform a test that was called for, misinterpreting a finding, an unreasonable delay or ignoring medical information that was available and clear.

Damage

The third element is the existence of damage. Without damage there is no claim, even if there was a deviation from the standard of care. The damage may be physical, mental or functional, and it includes, among other things, harm to health, disability, loss of earnings, medical expenses and expenses for treatment and nursing care. The extent and nature of the damage are examined separately from the question of whether there was negligence at all, and they directly affect the amount of compensation claimed.

Causation

The fourth element is a causal link between the breach of duty and the damage. It is not enough that there was damage and that there was a deviation from the standard of care. It must be shown that the deviation caused the damage, in whole or in part. This is sometimes the most complex element, because in many medical situations there is an underlying condition, a basic illness or an inherent risk that could also have led to the outcome. The legal and medical review seeks to distinguish between damage caused by the negligence and damage that would have occurred in any event, and to isolate the share of the negligence in the final outcome.

The distinction between negligence and a complication or an unfavorable medical outcome

One of the most important points to understand is that medicine is not an exact science, and a severe outcome is not necessarily equivalent to negligence. Medicine deals with the human body, with all its complexity and variability, and every procedure or treatment carries inherent risks. A medical complication is an undesirable event that may occur even when treatment was given properly and in accordance with the accepted professional standard.

Therefore, a medical complication or an unfavorable medical outcome does not necessarily indicate negligence. The legal question is not whether a complication occurred, but whether the medical staff deviated from the reasonable standard of care, for example in how the risk was managed, in identifying the complication in time and in treating it once it was discovered. A complication may occur without any negligence, and it may be precisely the handling of a foreseeable complication that revealed negligence.

This distinction works in both directions. On the one hand, it explains why not every severe outcome justifies a claim. On the other hand, it shows that an inquiry should not be dismissed merely because the patient was told that it was a known complication. The label itself is not decisive. It must be examined whether the preparation for the complication, its identification and its treatment met the required standard of care.

Informed consent and patients' rights under the Patient's Rights Law

The Patient's Rights Law, 1996 sets out the rights of the patient in the health system. One of the central rights the law establishes is the right to informed consent. This right means that the patient is entitled to receive information and an explanation about the proposed treatment and the risks involved, before giving consent.

Informed consent is not a technical signature on a form. It reflects a process in which the patient is given relevant information so as to be able to make an informed decision. Where material information was not provided, and where as a result the patient was deprived of the opportunity to make an informed choice, a cause of action relating to a defect in informed consent may arise, alongside or instead of the claim of negligence in the treatment itself.

It is important to understand that the issue of informed consent is examined as a separate track. Even when the treatment itself was carried out properly from a professional standpoint, a significant defect in providing the information and obtaining consent may be relevant. However, here too all the elements must be shown, including the link between the defect and the damage caused.

The role of the medical expert opinion

Establishing a medical malpractice claim usually requires a medical opinion from an expert in the relevant field. This is a central practical component of the proceedings, and not a mere formality. The court is not a medical body, and the question of whether the treatment fell below the reasonable standard of care is a professional question that requires medical knowledge.

The opinion is given by an expert in the field relevant to the matter at hand, for example surgery, obstetrics, orthopedics or any other relevant specialty. Its role is to explain what the accepted professional standard of care is, whether the treatment deviated from it, and what the link is between the alleged deviation and the damage. Without a supporting opinion, it is very difficult to establish the element of breach and the element of causation.

For this reason, an early and important stage in looking into an inquiry is collecting the complete medical file and passing it to an expert for review. The medical review may support the existence of a cause of action, but it may also show that the treatment was reasonable in the circumstances. In either case, the opinion provides a professional basis for deciding how to proceed.

Possible stages in looking into a medical malpractice inquiry

An orderly review of an inquiry is usually built in stages. First, collecting the relevant medical records from all the treating providers. Second, an initial review of the course of treatment to identify the points that need to be examined. Third, passing the material to a medical expert in the appropriate field for review. Fourth, forming a legal position on whether the four elements are met and on the extent of the damage. Only after that can an informed decision be made on how to proceed.

Keep in mind that tort proceedings are subject to rules on deadlines and limitation periods. For this reason, when there is a concern of medical malpractice, it is advisable to look into the legal situation as early as possible, so that the passage of time does not impair the ability to examine the matter on its merits.

Practical examples

First example: delay in diagnosis

A patient came in with recurring complaints, and during the work-up a test that was called for in light of the clinical picture was not performed. Some time later it emerged that had the test been performed in time, the problem could have been identified at an earlier stage and treated before it worsened. In reviewing the case, all four questions were asked: whether there was a duty of care, which was not in dispute; whether the failure to perform the test constituted a deviation from the reasonable standard of care; whether damage was caused; and whether the delay caused the damage, as distinct from the course of the illness that would have occurred in any event. An expert opinion was needed to examine what the patient's condition would have been had she been diagnosed in time.

Second example: a complication that does not necessarily indicate negligence

A patient underwent an accepted procedure, after which a known and recognized complication of that procedure developed. At first, the patient believed that the complication in itself indicated negligence. A professional review showed that the procedure had been performed in accordance with the accepted standard, and that the complication was among the inherent risks, which had also been explained to him in advance. In such a case, the mere occurrence of the complication does not establish a cause of action. However, an additional question was examined separately: whether the complication was identified and treated in time and in a reasonable manner. The distinction between the complication itself and the way it was handled was at the center of the review.

Summary and next steps

Understanding your rights in this area is the first step toward exercising them properly. Each case is examined according to its circumstances, so it is important to prepare accordingly, keep orderly documentation and act in time.

If you are dealing with an issue in this area, or wish to examine your rights, you are welcome to contact the Yaniv Gavish Law Office to look into your individual circumstances. The office practices tort law and the pursuit of rights before Bituach Leumi (the National Insurance Institute), and accompanies injured persons in these proceedings.

Yaniv Gavish Law Office, 4 Berkowitz Street, Tel Aviv. Phone: 076-5385862. Website: gavishlaw.co.il.