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Adv. Rachel Levitan and Adv. Deror Lin
In a recent decision by the Supreme Court, C.A. 2087/08 Orly Magen v. General Public Health Fund, the Supreme Court ruled whether common medical practice can be considered as negligence. This case has special significance in view of the fact that the said common medical practice was common in Israel while prohibited in other countries.
In the said case, the mother of Orly Magen, underwent a medical procedure at the Emek Hospital in Afula in 1979. The mother underwent treatment with an injection of Epontol and suffered an allergic reaction. This allergy caused brain damage to Orly Magen.
A claim was filed to the District Court which ruled that Orly Magen did not prove any negligence, as the usage of the said anesthetic was common and acceptable in Israel. While Orly Magen proved that the anesthetic was prohibited in the USA, the Court ruled that a norm of behaviour accepted in one country does not forbid said behaviour in another country and therefore, the action of the anaesthologist cannot be deemed as negligent.
The Court stated that "medical negligence should not be checked with hindsight but should be examined according to the behaviour of the average doctor".
Orly Magen appealed to the Supreme Court stating that the anesthetic was never allowed in the USA due to the risks involved and was forbidden for use in Israel in the 1980's. She further argued that at the time of her operation, there was a dispute among the anesthesiologists whether or not this anesthesia should be used.
The Supreme Court ruled that in 1979, the relevant year, the anesthesia was in common use in Israel. It was banned only in the mid-1980's. The Court stated that when a judge checks whether the activity of a doctor is negligent, he must check it through the eyes of the doctor during the relevant period.
The Court ruled that on the one hand, a doctor must keep up to date with any medical breakthroughs, learn of new procedures and study research conducted even in foreign countries. Medical studies never come to an end. A doctor must continue his studies at all times. On the other hand, a doctor is not a prophet and cannot foresee the future. Therefore the Court must view the doctor's activities within the limits of knowledge and technology at the time.
The Court based this ruling upon its judgment in CA 3264/96 General Public Health Fund v. Peled, PD 52 (4 849) in which it was stated:
"The state of the medical science at the time of the activity is of importance and not the state of the medical science at a later date. It should be remembered that medical science is dynamic. The medicine of today is not the medicine of 20, 50 100 years ago or even a few years ago. One conclusion which results from this is when checking allegations that a doctor was negligent, the time of the behaviour allegedly negligent should be in mind. A doctor must not be accountable for not knowing 10 years ago for what medical science knows today but knew not then.
It is common practice in medical malpractice suits that treatment or medicine in common usage during the time of the trial was unknown several years earlier or was unrecognized as proper or appropriate means of treatment.
On the other hand, taking into account that medical science is dynamic, evolving at all times, a doctor must be vigilant to the development of medicine in his line of expertise... Indeed a doctor cannot be required to know all that there is to know in his line of expertise. Not knowing a certain article published shortly beforehand will not be deemed as negligence however, ignoring a long line of articles and warnings in medical literature will be negligence..."
Having said that, in the current Orly Magen case, the Court narrowed the said ruling of the Peled case stating:
"Hundreds of years ago doctors did not go to university. Medical books were not necessarily updated or always accessible to the doctor. A doctor used to learn through experience of others and through his own experience and even through trial and error...
Since then a "data" revolution took place. The updating speed of the late 1970's is not the updating speed of the end of the first decade of the new millennium. Currently a doctor has high accessibility to immediate professional updates through the internet and can consult through virtual cyberspace with experts from around the globe and be exposed to various medical schools of thought. "
This will affect the ways medical negligence will be checked in the future.
In view of the above and the fact that the anesthesia was common in Israel, the Court decided that the doctor was not negligent. The Court specifically ruled that the fact the practice was not allowed in the USA does not affect the decision, as a dispute between different schools of thoughts in different countries is common and change of practice in one country based on the practice of another does not mean that all doctors in that country prior to the change in practice are negligent.
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