Alliance for Patient Safety

4. The Economic Burden due to Medical Negligence Claims Against the Governmental Medical Institutions

As stated, in the Ministry of Health note that in the recent years a substantial and constant increase occurred in the scope of the financial demands and the claims against the State submitted to the Courts and the insurers due to medical negligence in Israel. According to the Ministry, the increase does not necessarily emanate from increase in the number of medical harms due to medical negligence but among other things results from an increase in the public awareness of medical negligence and by practicing their rights to submit claims, and as well as due to the fact that over the years the Courts ruling broadened their responsibility for torts incurred by medical professionals and the medical institutions. In addition, the ruling increased the compensations awarded to benefit the winning parties and has made more difficult the actuary assessment and the retaining of funds for the long range as required. Therefore, it is noted in the Ministry of Health, that a substantial increase occurred in the national spending for healthcare due to the expenses of the medical institutions on claims due to medical negligence.[1]

In the absence of data in regards the scope of medical negligence cases in non – government owned institutions, it is therefore not clear what are the total expenses of these institutions due to medical negligence. As for governmental institutions, the body providing insurance cover to these medical institutions for medical negligence is the internal trust for government insurance operated by "Inbal" Insurance Company. The coverage includes professional responsibility of the Ministry of Health as the operator of medical institutions and as the provider of medical services.[2] In response to a query made by the Knesset Research and Information Center whether the various medical institutions are obliged today to insure themselves against medical negligence in the Ministry of Health they replied that at the present there is no mandatory insurance for medical institutions, neither within the framework of legislation nor in the Ministry of Health procedures, however all the medical institutions in Israel have insurance arrangements due for medical negligence.[3] The Israel Medical Association (herein after IMA) explained that through the power of collective bargaining Between IMA and various employers (such as the State, Clalit health services, Leumit health maintenance organization, Hadassah and shaarey zedek hospitals) the employers have the obligation to insure the physicians.[4]

As stated, between the years 2005 – 2015 some 8,372 claims were submitted against governmental medical institutions due to medical negligence – it is unknown to us what is the rate of claims that were closed out of above and how much compensations were awarded for these claims. The Ministry of Finance has passed us data on the total payments made by the insurance companies providing coverage for medical negligence by the governmental medical institutions only, data taken from the database of Inbal insurance company for the years 2005 – 2015[5]. We shall present the data on the actual total payments made in thousands of NIS in claims due to medical negligence for the years 2005 – 2015 segmented by the type of the insured party. We should note , that not all the claims in which payment was made to the claimant are claims where ruling was received, when according to the Ministry of Finance, in most cases these amounts were paid within a framework of settlement agreements following the claims submitted in the Courts.[6]

Table no. 7: Ministry of Health and Ministry of Finance data on the actual total payments made (in thousands NIS) on claims due to medical negligence in governmental medical institutions in the years 2005 – 2015 according to type of the insured party[7]

As can be seen, in the years 2005 – 2015 some 2.32 billion NIS were paid in compensations for medical negligence in the governmental medical institutions. By segmenting the data according to type of insured party it transpires that most of the stated amount were paid due to claims against general hospitals (approx.  82% of total payments); approx. 15.8% of the amount was paid due to claims against the Ministry of Health clinics; approx. 1.8% of the amount was paid due to claims against the mental health hospitals; approx. 0.9% of the amount was paid due to claims against the Ministry of Health and approx. 0.09% of the amount was paid due to claims against geriatric hospitals. It further transpires from the data presented in the above table that in general, an increase of almost doubling the paid amounts occurred in the total payments for claims due to medical negligence in the years 2005 – 2015 from about 138 million NIS in 2005 to about 262 million in 2015. As stated, in those years the number of claims increased from 597 claims in 2005 to 1,008 claims in 2015.

We have also requested from the Ministry of Finance data about the average and the median payment per claim paid for medical negligence against governmental health institutions in every one of the years 2005 – 2015 which are as follows:

Chart no. 2. The data from the Ministry of Finance (in thousands NIS) about the average and median payment per claim paid for negligence against governmental medical institutions for claims received , 2005 – 2015 [8]

The following transpires from the above chart: the highest average compensation per claim paid was in 2006 in the amount of NIS 505,000 whereas the lowest average compensation was in 2015 and was in the amount of NIS 416,000 per claim. In regards to the median payment, from above chart it transpires that the highest median compensation per claim was in 2011 in the amount of NIS 203,000 whereas the lowest median payment was in 2011 in the amount of NIS 111,000.

4.1. The Reasons for the Increase in the Number of Claims and their Consequences

The Ministry of Finance advised the Knesset Research and Information Center that the data depicted above point to an increase in the number of claims submitted against governmental institutions for medical negligence and as result also to the increase of the amount paid to cover these claims.[9] The State Comptroller has also noted that "Following the changes and increased rigorousness in the Courts rulings, the increase in the compensations awarded to those that were harmed and the increase in the scope of the submitted claims in cases of medical negligence, the national expense spent on medical negligence claims has increased for the entire health system."[10]

IMA has advised in this subject that they are witnessing new populations joining the claimants circle in the recent years, multiplicity of class actions suits in the area of insurance and as well as a situation in which many claims are submitted in delay and continue for many years.[11] In addition, the creation and development of harming the autonomy of the patient as a cause of claim, brings about more opportunities to submit claim, as well as the modern medical advancement and the multiplicity of checks for early discovery and the early prevention of sickness.[12] On the other hand, according to the Israel Bar Association as quoted in the State Comptroller’s report 62, in the calculation of the increase in costs emanating from medical negligence we should also take into the account the growth of the population in Israel, as well as the development of the laws of torts and partial breaking of the "conspiracy of silence" of the physicians which brought about the development of claims submission in this field, similar to the development in other legal fields.[13]

A question is therefore raised, whether there are medical fields in which a higher number of medical negligence can be seen in comparison with other areas of medicine. According the Ministry of Health, the medical fields leading in payments for claims for medical negligence are: maternity (including emergency maternity); emergency department (internal emergency, orthopedic emergency, surgical emergency, and children emergency; neurosurgery; general surgery; internal medicine; orthopedic; health clinics (pregnancy follow-up).[14] We should note that the Knesset Research and Information Center does not hold data about the share of each of the fields mentioned above out of the total payments made for medical negligence or if the order of the fields depicted above shows these fields according to particular order or this is merely a general list.

In regards to the stated question the IMA noted that the medical professions in which there is a higher risk for a physician to be subjected to a medical negligence claim are obstetrics and gynecology as well as medical genetics. According to the IMA, these professions largely handle medical cases concerning pre-birth and birth events, in which a significant increase occurred in recent years in claims made on behalf of newborns who were harmed during birth and in the compensations amounts awarded in cases where it had been determined that medical negligence occurred. According to the IMA, the fact that these professions are in heightened risk for claims causes physicians to distance themselves from these professions or occupation in the specific sub-fields which are not directly concerned to the study within those fields.[15] In addition, this increases the use of defensive medicine in these fields. We should note, that in response to our application to the Israel Bar Association whether it is possible to identify certain medical fields in which there is inclination for many more claims for medical negligence the Bar Association responded that they are unable to indicate on certain fields , since these are diverse claims.[16]

[1] Miri Cohen, Senior Area Manager Emergency Services and First Aid, Ministry of Health, letter, 19^th January 2017 ( received at the Knesset Research and Information Center on 2^nd March 2017)

[2] Yahli Rotenberg, Senior Deputy to the Accountant  General, Ministry of Finance, letter, 31^st January 2017.

[3]  Miri Cohen, Senior Area Manager Emergency Services and First Aid, Ministry of Health, letter, 19^th January 2017 (received at the Knesset Research and Information Center on 2^nd March 2017).

[4]  Chen Shmilo, Lawyer,  Head Area Public Policy, The Israel Medical Association, letter, 1^st February 2017.

[5]  Yahli Rotenberg, Senior Deputy Accountant General, Ministry of Finance, letter, 31^st January 2017

[6] ShlomiC ohen, Head Government Insurance Branch, Ministry of Finance, telephone conversation, 29^th May 2017.

[7]  Miri Cohen, Senior Area Manager Emergency Services and First Aid, Ministry of Health, letter, 19^th May 2017 ( received at the Knesset Research and Information Center on 2^nd March 2017); Yahli Rotenberg, Senior Deputy Accountant General, Ministry of Finance, letter, 21^st January 2017.

[8] Yahli Rotenberg, Senior Deputy Accountant General, Ministry of Finance, letter 31^st January 2017; Shlomi Cohen, Head Government Insurance Branch, Ministry of Finance letter, 6^th June 2017.

[9]   Yahli Rotenberg, Senior Deputy Accountant General, Ministry of Finance, letter, 31^st January 2017.

[10] State Comptroller's office, Report 62 for the year 2011, May 2012

[11] Chen Shmilo, lawyer, Head Public Policy Branch, the Israel Medical Association, letter, 1st February 2017.

[12] There.

[13] The State Comptroller's office, Report 62 for the year 2011, May 2012.

[14]  Miri Cohen, Senior Area Manager Emergency Services and First Aid, Ministry of Health, letter, 19^th January 2017 (received at the Knesset Research and Information Center on 2^nd March 2017.

[15]

[16] Danit Buskila, Manager Government Relations Unit, the Israel Bar Association, 30^th April 2017.