How to Prove Medical Malpractice: The Evidence, the Experts and the Path to Compensation

The feeling that something went wrong in medical treatment is the starting point of almost every medical malpractice case: surgery that developed complications, a diagnosis that came too late, a medication that caused harm. But between a feeling and a successful claim lies a long evidentiary road. Not every bad outcome is negligence; medicine is not an exact science, and risks materialize even with the best treatment. The legal question is a different one: did the medical staff act as a reasonable physician would have acted in the same circumstances, and was it the deviation from the standard that caused the harm.

This cannot be proven with feelings. Documents are required, first and foremost the medical record, and an opinion by a medical expert is required, without which a medical malpractice claim can hardly get off the ground. An understanding of special rules of the game is also required, such as the evidentiary damage doctrine, which is designed to deal with situations in which it was the medical institution itself that controlled the evidence and failed to preserve it.

In this article we set out, step by step, how proof is built in a medical malpractice case: from the legal elements, through collecting the record and discovery of documents, to choosing the right expert and the test by which everything is measured.

The four elements of the tort of negligence

A medical malpractice claim rests on the tort of negligence in the Civil Wrongs Ordinance, and it requires proof of 4 cumulative elements:

• Duty of care: the existence of a duty between the caregiver and the patient. In a physician and patient relationship this duty is self-evident and is almost never in dispute.

• Breach of duty: negligence, meaning a deviation from the level of treatment that a reasonable physician would have provided in the same circumstances. This is the heart of the dispute in most cases.

• Damage: actual physical or mental harm caused to the patient.

• Causation: proof that the negligence caused the damage, and not the natural course of the illness or a risk that would have materialized in any event.

The last two elements are no less important than the negligence itself: even plainly negligent treatment will not give rise to compensation if the damage would have been caused in any event. The expert opinion in the case must therefore cover both the question of negligence and the question of causation.

The medical record: the key evidence in the case

The Patient's Rights Law, 1996 imposes on every caregiver and medical institution a duty to keep a complete medical record and to preserve it. The record, which includes the hospitalization charts, follow-up notes, treatment orders, test results, operative reports and consent forms, is the real-time documentation of what was done and what was not done, and it is the foundation on which the claim stands or falls.

Every patient has a legal right to receive a complete copy of his or her medical record, and the medical institution must provide it. The first stage in reviewing any case is therefore systematic collection: the complete hospitalization file, the file from the health maintenance organization (kupat holim), the imaging studies themselves and not only the reports, and documentation from every institution that provided treatment. A professional review of the record often reveals the real story: worrying signs that were documented and not acted upon, time gaps between noticing a problem and responding to it, entries made after the fact.

It is worth acting early: records are kept under retention rules, but the more time passes, the greater the risk that material will be lost, shredded or become hard to locate.

Evidentiary damage: when the record is missing, the burden shifts

What happens when you obtain the record and find holes in it: a terse operative report, missing follow-up notes, a consent form that has disappeared? This is where the evidentiary damage doctrine comes into play, a doctrine that Israeli case law developed specifically in medical malpractice cases.

The logic is simple and fair: the medical institution controls the documentation, and the duty to keep it is imposed on it by law. If it breached that duty, and as a result a material fact cannot be established, it is not fair for the patient to bear the consequences. Therefore, when documentation that should have existed is missing, the burden of proof regarding that fact may shift to the medical institution: it is the institution that will have to prove that it acted properly, and if it does not discharge that burden, the question will be decided in favor of the plaintiff.

In practice, identifying gaps in the record is a central part of the preparatory work on the case: what should have been recorded according to the procedures and accepted practice is compared with what was actually recorded, and every gap becomes an evidentiary argument.

Expert opinion: a threshold requirement, not an extra

Unlike road accident claims, in which the court appoints an expert and the parties are barred from submitting their own opinions, in a medical malpractice claim the situation is the reverse: the plaintiff must attach to the statement of claim a medical opinion on his or her behalf, supporting the allegations of negligence, damage and causation. A claim without an opinion is exposed to being struck out at the outset.

The opinion is a professional document in which a senior physician analyzes the medical record and determines, on the basis of medical knowledge, in what respect the treatment departed from accepted practice and what resulted from that departure. The defendants will submit a counter-opinion on their behalf, and the court will decide between the positions, sometimes appointing an additional expert of its own. The quality of the opinion, its thoroughness and the expert's ability to withstand cross-examination are among the factors that most affect the outcome of the case.

A key preliminary stage is a feasibility review: before investing in a full opinion, the record is passed to an expert for an initial review to obtain an assessment of whether there is a basis for a claim. This avoids groundless claims and unnecessary expenses.

Choosing the right field of expertise

A common and dangerous mistake is an opinion from an unsuitable field of expertise. The guiding rule: the expert must be from the field in which the negligence is alleged, not necessarily from the field in which the damage manifested. Some examples:

• An allegation of delayed diagnosis of a tumor on an imaging study will usually require an opinion in radiology, alongside an oncology expert on the question of causation and damage.

• An allegation of mismanagement of a birth will require an expert in obstetrics and gynecology, and where the newborn was harmed, an expert in pediatric neurology will also be required to assess the damage.

• An allegation of negligence in anesthesia requires an expert in anesthesiology, even if the damage is orthopedic.

Complex cases therefore require several complementary opinions: one on the question of negligence and others on the question of damage and causation. Choosing the wrong field invites a threshold argument that the opinion is irrelevant, and may cost the entire case.

The reasonable physician test: the standard by which everything is measured

The central legal question is not "was the outcome bad" but "would a reasonable physician have acted differently". The reasonable physician test examines the conduct according to the medical knowledge, procedures and accepted practice that existed at the time of treatment, not according to hindsight and not according to developments published later.

Several guiding principles derive from the test:

• The existence of several legitimate schools of medical thought is not negligence: a physician who chose one accepted approach among several acted properly, even if another appears preferable in hindsight.

• On the other hand, a deviation from written procedures of the Ministry of Health or of the institution itself is a significant indication of negligence.

• The standard is affected by the circumstances: a busy emergency room at night is not an elective clinic, but even under pressure there is a threshold below which one must not fall.

• Alongside the treatment itself, informed consent is also examined: whether the patient received reasonable information about the risks and treatment alternatives before consenting.

Discovery of documents: obtaining what is not handed over voluntarily

Not all the relevant material is provided with the medical record. Discovery and inspection of documents within the claim make it possible to demand also what the institution is in no hurry to hand over: internal procedures that were in force at the time of the event, work rosters and staffing levels on the shift, operating room logs, documentation from medical equipment, and sometimes also the findings of an internal inquiry into the event, subject to the limitations set by law regarding certain materials.

These documents make it possible to compare what was required with what happened: if the procedure requires a physician's examination within a certain time and the record shows twice that wait, a strong argument has been built. Insisting firmly on full discovery is often the difference between an average case and a winning one.

Illustrative scenario: delayed diagnosis of an infection

A patient after abdominal surgery complains at night of increasing pain and fever. The nurse documents the complaints, but a physician examines him only many hours later, and the infection is diagnosed late, after it has spread and caused permanent damage. How is the case built? The medical record shows the sequence of events: the time of the first complaint, the temperature readings, and when a physician was actually called. The ward's procedures, obtained through discovery of documents, will show what was required once the readings appeared. A surgical expert will state in his opinion that a reasonable physician would have examined the patient immediately and started early antibiotic treatment, and an infectious diseases expert will assess that early treatment would have prevented most of the damage. And if it turns out that the follow-up notes from that night are missing, the plaintiff will be able to rely on the evidentiary damage doctrine. This is what well-built proof looks like: not a feeling, but a chain of evidence.

Summary

Proving medical malpractice is a work of assembly: the medical record provides the facts, discovery of documents completes the picture, the expert opinions translate the facts into a professional standard, and the reasonable physician test decides whether there was a deviation that caused the damage, while the evidentiary damage doctrine protects the plaintiff against missing documentation. Whoever manages these stages meticulously arrives in court with a case that is hard to rebut.

If you believe you have been harmed by medical treatment, the Yaniv Gavish Law Office, which practices tort law and medical malpractice, is at your service for an initial review of the case: 4 Berkowitz Street, Tel Aviv, phone 076-5385862.