The following are the main findings coming out from the document:
Errors in the diagnosis and medical treatment, causing harm to the patients and occurring both in the hospitals and the medical institutions in the community, are one of the challenges the health systems around the world are facing;
The State Comptroller indicated in report 62 of 2011 that "only a minority of all exceptional incidents and medical failures emanate from negligence", however in the comptroller's report it was not indicated what is the scope of these occurrences in Israel. According to the comptroller, in the years preceding the writing of the report a significant and continuous increase in the scope of financial requirements and claims against the state submitted to the Courts and insurance bodies due to medical negligence in Israel occurred. The State Comptroller attributes this increase not necessarily to the multiplicity of medical damage due to negligence, but, inter alia, the growing awareness within the public to medical negligence and to its standing by the right to submit claims, as well as due to the increase in the number of lawyers;
The Ministry of Health defines medical negligence as "providing medical care while deviating from reasonable caution" and adds that "there is no definition of the term medical negligence within the law, however it is conceived as some kind of negligence". The Ministry has also notified that there are different kinds of medical negligence, which are examined according to the various planes of the Court hearing. Within the Ministry of Health there is no data concerning the scope of the medical negligence phenomenon in the entire health system in Israel and thus on the number of deaths as a result of such medical negligence, and according to the Ministry of Health it is also due to the different definitions to the term medical negligence. The Ministry has data about the number of medical negligence claims submitted against governmental medical institutions only, and already in 2011 the Comptroller had remarked about the partial information existing in the hands of the Ministry of Health of this issue and called the Ministry of Health "to assemble information from the considerable activity occurring in the Courts of Law in the area of medical negligence";
In order to learn about the scope of the medical negligence cases in Israel, the Knesset Research and Information Center approached various bodies concerned with the issue, including the Ministry of Health, the Ministry of Finance, the Medical Association of Israel, the Central Bureau of Statistics, the Israeli Police, the Chamber of Lawyers, the Courts Management and the Nurses Association, which as of yet did not respond to our approach. Thus the data received from some of these bodies is partial only.
From data of the Courts Management it transpires that in the years 2010-2016 a total of 10,694 civil claims due to medical negligence were submitted against medical institutions in Israel. An increase to the extent of the number of claims has occurred over the years, so that in the year 2010 some 1,109 claims were submitted vs. 1,985 in the year 2015. We have no information how many of these claims were found justified;
From the data of the Ministry of Health and the Ministry of Finance it transpires that in the years 2005-2015 some 8,372 claims were submitted concerning medical negligence against the governmental medical institutions only. As a rule, it can be indicated of continuous increase in the number of claims due to medical negligence against governmental medical institutions from 597 claims / year in the year 2005 to 1,008 / year claims in the year 2015;
From special data processing relating to death certificates performed per the request of the Knesset Research and Information Center by the Central Bureau of Statistics it transpires that in the years 2005 – 2014, medical negligence could have occurred in 1,892 death incidents(out of which, in approx. 29% incidents a fundamental death cause is mentioned). Notwithstanding, the Bureau of Statistics indicates that death certificates are a pretty limited source for learning about the death incidents due to medical negligence and relying on this source as the basis for matters in regards to medical negligence leads to a meaningless estimate of these numbers;
Due to the lack of complete data on the number of medical negligence incidents in Israel, a question is asked in regards to the number of incidents or special occurrences during a medical treatment in Israel and how are those incidents investigated by the Ministry of Health. The Ministry of Health has reports about deaths and special occurrences about which the medical institutions are obliged to report to the Ministry of Health, as per the Medical Administration Circular no. 11/2012 concerning the obligatory reporting by the medical institution about deaths and special occurrences dated 09 / May / 2012. We should note that not every special occurrence is negligence and therefore it cannot be learned from it about the number of medical negligence incidents;
In the years 2005-2016 some 3,646 reports about report requiring incidents were received in the Ministry of Healthas per the above mentioned circular, whereas in the stated years an increase of 2.5 folds has occurred in the number of reports about special incidents requiring report were submitted to the Ministryof Health, an increase from 190 reports in 2005 to 511 reports in 2016. In addition, in the years 2014-2016 some 275 reports about incidents were submitted to the Ministry of Health which גם not require reporting. The increase in the number of reports about special occurrences is attributed in the Ministry of Health to the setup of a computerized system for direct reporting; to the establishment of the treatment safety array in the Ministry of Health and to the encouragement of the treatment safety array of the medical institutions to report. However, according to the Ministry of Health, The Office has no way to examine if the hospitals are reporting on the entirety of occurrences as required and it is estimated by the Ministry of Health that there is under – reporting on this issue;
In the years 2005 – 2016 some 56,122 reports were received in the Ministry of Health about special deaths as these are defined in the circular. While the number of reports in the years 2005 – 2012 has increased from 4,731 reports in 2009 to 5,579 reports in 2011; in the years 2013 – 2016 a certain decrease can be seen in the number of reports and their number dropped from 4,465 reports in 2013 to 3,055 reports in 2014. This decrease in the number of reports is attributed in the Ministry of Health to the fact that the implementation of the computerized reporting system compelled the medical institutions to report only on deaths falling under the criteria for reporting and not report about every death occurring at the medical institution;
The Medical Administration in the Ministry of Health is the body in charge of the receipt of the medical institutions reporting about deaths and special occurrences and upon their receipt it opens an inquiry into the case. Concurrently with this inquiry every report is transferred to the Treatment Safety Array in the Ministry of Health for handling, which since 2011 is in charge of the promotion of safety in treatment. If the case inquiry in the Medical Administration brings about the need for a further in-depth inquiry, its details are conveyed to the Public Complaints Commissioner for the Medical Professions in the Ministry of Health which handles the complaints in the clinical areas and receives complaints from different bodies. The Commissioner is entitled to consider and decide on the way the cases brought to its attention should be examined, and in addition has the ability to setup an Investigation Committee to examine the case. Once the Committee finalizes its work on each case, it prepares a recommendation in regards to the case whether it is a negligence case justifying the submission of a disciplinary complaint. The Commissioner for Public Complaints will attach its recommendations to the committee's report and will convey the matter for the decision of the Ministry of Health’s Director General. In case the Director General decides to launch a complaint on the issue, the file is transferred to the Ministry of Health’s prosecutor, and is discussed in the Disciplinary Court Unit of the office;
According to the data collected by the Ministry of Health, in the years 2012 – 2016 some 2,000 reports about occurrences requiring report were submitted to the Ministry of Health and some 20,098 reports about special deaths.
During those years, at least 4,977 complaints (not including the year 2013) were conveyed to the Public Complaints Commissioner for the Medical Professions, in which medical negligence was suspected and he has setup 163 investigation committees for examining these complaints – meaning that investigation committees were setup to examine 3.3% of the complaints for medical negligence. The number of decisions concerning medical negligence passed to the Disciplinary Court Unit of the Ministry of Health in those years stood at 32, where in 81% (26 cases) punishments were imposed and in 19% (6 cases) it had been decided on acquittal. The most severe punishment imposed is license suspension, which was imposed on 81% (21 cases) where punishment was imposed;
It should be mentioned that in report 62 of 2011 the State Comptroller discussed the position of the Public Complaints Commissioner for Medical Professions. The State Comptroller mentioned that in an examination it conducted indeed it was found that different parts of the Commissioner's activity are regulated and executed in compliance with the Law, as well as regulated by instructions and internal procedures. However, according to the State Comptroller these sources do not legally regularizing the full scope of its activity and there is no legal definition in the regulations concerning the authority and obligations of the Public Complaints Commissioner, inter alia, concerning the investigation committees it appoints. In the report of the Prime Minister's remarks to the State Comptroller 62 – first part made public in May 2012 the Ministry of Health advised that the "Draft proposal for regularizing the position of the Commissioner will be submitted to the Director General [Ministry of Health] until 30 / April / 2012" however until today the memorandum of said law was not made public;
The Ministry of Health and the Ministry of Finance have passed us data concerning the total payments paid by Inbal Insurance Company Ltd. for claims of medical negligence against governmental medical institutions only. We have no information on the number of claims for which compensations were paid. According to the Ministry of Health and Ministry of Finance data, in the years 2005-2015 32 billion NIS were paid due to medical negligence claims in governmental medical institutions. Generally, an increase of almost double in payments for medical negligence claims occurred in the years 2005 – 2015 from about 138 million NIS in the year 2005 to about 282 million NIS in 2015. As stated, in those years the number of claims increased from 597 claims in the year 2005 to 1,008 claims in 2015;
The average compensation per claim – the highest annual average that was paid was in 2006 and stood at 505,000 NIS, while the lowest annual average was in 2015 and stood at 415,000 NIS per claim. The median compensation per claim – the highest annual median was in 2011 and stood at 203,000 NIS and the lowest annual median was in 2007 and stood at 111,000 NIS.
According to the approach of the Law of Torts customary in Israel, as well as in other countries, in order for a compensation to be awarded to a patient claiming that he / she was injured due to medical procedure he / she has to prove that the body that treated him bears the responsibility for the injury caused to him / her. An alternative model to the approach of the Law of Torts is the customary model of "no fault" accepted, inter alia, in the Scandinavian states, in which framework the awarding of compensation does not depend on proof of guilt or negligence on the party providing the treatment, but on sufficient proof on causal connection between the medical treatment the patient had undergone and the injury he / she is suffering from.
In the last chapter of this document we shall introduce the arrangement customary in Denmark, which is commonly introduced in the professional literature as the Model representing the "no fault" approach. In 1992 the Danish Patient Compensation Association (Patienterstatningen) was established by legislation, constituting an independent body and the main operator in the patients injured during a medical treatment compensation system in the public and private health system. The purpose of the Association is to ensure awarding compensation to those who were injured and its framework of activity is not dealing with the examination of the professional conduct of a certain medical body or another, but only with the assessment of the damage itself and the entitlement for compensation due to same.
This document has been written as per the request of Knesset Member Yael German and Knesset Member Karin Elharar and it engages in the manner of handling by the Ministry of Health in medical negligence cases in Israel and briefly introduces the model customary in Denmark for handling medical negligence cases against the health system.