Legal and forensic medicine in Israel

Abstract

This chapter provides a brief overview of the Israeli healthcare system, covering health and legal aspects, doctor and patient relationships, and patient’s rights through the main causes of action in Israel’s legal system. It will also examine the role of the expert witness in presenting scientific and forensic evidence in civil and criminal proceedings. The right to healthcare is recognized as a fundamental right in the Israeli law and consists of many rights scattered among legislation. Patient’s Rights Law (1996) regulates the rights of the patient and doctor-patient’s relations. National Health Insurance Law declares the rights of residents to receive basic healthcare services. These basic medical services include specific medical procedures, medical technology, and lifesaving medication that change each year according to budget and other interests. In addition, Public Health Maintenance Organization (HMO) and insurance companies may offer residents supplementary private insurances and provide services beyond this basic basket. This situation creates a significant gap and disparity between patients who need the services, covered by the NHI, and patients who seek the services of private practices. This dichotomy also creates a difference in the quality of the medical services where private insurance can supply far better quality health services. In recent decades, the conservative-paternalistic approach has given way to the autonomy of patient’s approach which has enormously changed doctor-patient relationships. This has influenced the structure of healthcare management. Court judgments in medical malpractice law use evidential means to overcome the disparity of knowledge between doctor and patient. A medical malpractice claim usually includes three causes of action: negligence of treatment, lack of informed consent due to violation of the duty of disclosure, and an independent cause of action for compensation for the breach of the right of autonomy. According to Israeli Civil Procedure rules, submission of an expert opinion is necessary to establish medical contentions. Scientific evidence in law is proven by means of expert opinions. Medical proof has to be methodically based and reliable. The adversarial system, in which the parties present their evidence, may create a gap between scientific evidence admissible in court and proving it as a scientific theory recognized by science, contrary to evidence-based medicine. Scientific evidence, at a trial, has a persuasive power which might affect the results of the trial. For example, DNA evidence has a persuasive power which alone can constitute the sole circumstantial evidence that will lead to the conviction of a defendant in a criminal trial. In civil cases, the expert’s opinion is the main tool to prove scientific evidence. Another means of proving scientific evidence is the use of clinical guidelines which are set as normative standards and used as a tool to reflect the standard of care at the time. These guidelines can be used as a tool for assessment of questionable conduct. Guidelines are consulted by courts because they provide evidence of standards recognized by professional medical organizations. Clinical practice guidelines are of value in systematizing medical procedures, mainly those which may have legal implications.