Appointment of a Medical Expert by the Court in Medical Malpractice Cases

The appointment of an expert on behalf of the court in the field of medical malpractice is not similar to the appointment of an expert in other medical fields or in matters outside the field of medicine, since the medical expert is essentially being asked to determine that a colleague in the profession acted negligently, a determination that can lead to severe consequences including criminal proceedings, disciplinary proceedings, defamation, and more.

Due to this concern, many doctors find it difficult to provide expert opinions against their colleagues in the field of medical malpractice, and there are medical fields in which it is not possible to obtain a private expert opinion in Israel and plaintiffs are forced to bring an expert from abroad (due to the "code of silence" among doctors – which in certain cases can serve as grounds for the appointment of an expert on behalf of the court, where no expert opinion has been submitted by the plaintiffs, see the decision of the Honorable Judge Zilbertal in the case handled by our office, CA 1358/12 Rabin Medical Center et al. v. Estate of the Late Shlomo Eisenbach z"l on the decision of the Honorable Judge Yosef Shapira in Civil Case (Jerusalem) 6743-09-11).

The Kling Committee, a public committee headed by the Honorable Judge G. Kling, which was appointed in 1993 by the Rabin z"l government in order to examine the entire issue of negligence in Israel, determined at the time that the procedure of appointing an expert on behalf of the court is not appropriate in the field of medical malpractice. The undersigned served as the representative of the Israel Bar Association on the committee.

The committee determined as follows:

".. However, the appointment of an expert by the court, in addition to the experts on behalf of the parties, does not solve the difficulties that were pointed out, but rather adds the costs of a third expert. The expert on behalf of the court is subject to cross-examination by both parties, and according to case law the court is not obligated to adopt his opinion specifically. Instead of deciding between two expert opinions brought by the two parties, the court must decide between three expert opinions" (p. 54 of the committee's report).

The committee further determines:

"...Placing the decision in the hands of an expert or appointing an expert on behalf of the court, who will submit an expert opinion, are exposed to the same risk, that the doctor has an opinion that originates from his training, his experience, or the school to which he belongs"... (p. 56 of the committee's report)

In the court there are different approaches regarding this issue, with some judges tending, in light of conflicts of interest, social and other connections between doctors and the provision of expert opinions for insurance companies, to refrain from appointing an expert on behalf of the court. Other judges immediately appoint an expert on behalf of the court, and some argue, in fact, that the fate of the trial will be decided outside the walls of the court by the medical expert, since, as is known, it is not an easy task to cause a medical expert to retract his opinion during cross-examination.

Both approaches exist in case law. For example, the verdict of the Honorable Judge Rubinstein in CA 4330/07 Moses Ariel v. State of Israel et al., which determined that the appointment of a medical expert on behalf of the court is a necessary and required procedure, but at the same time defined criteria of independence for the expert that are difficult to find in reality.

Thus, the Honorable Judge Rubinstein determines that: "The appointment of experts by the court should generally be from among experts who do not provide private expert opinions but only to the court" (see also CA 10895/08 Gili Golan v. Ghanem Dalal. It is also required that it be clarified that the expert to be appointed has not expressed his opinion on the same matter at all, and more.

These requirements are almost impractical and therefore in practice nullify the possibility of appointing an expert on behalf of the court.

In any case, the Honorable Judge Zilbertal recently determined in CA 4799/12 Jane Doe et al. v. Clalit Health Services et al. that there is no place to use such a procedure routinely and easily, while detailing the problems and difficulties involved in appointing such an expert.

"Indeed, I can only reiterate the importance I see in the existence of awareness among judges of all those implications that the appointment of an expert on behalf of the court can have and the difficulties that such an appointment may present to the parties, and especially to the plaintiffs. A decision on such an appointment should only be made after thorough consideration and after the parties have been given a proper opportunity to present their arguments."

In light of the conflicts of interest of doctors, and in light of the fact that the elementary judicial ethics rules that apply to them are not at all clear to medical experts (see for example Motion (Jerusalem) 2705/08 Hanna Goldberger v. Dr. Michael Goldenhirsch et al. where the Honorable Judge Sobol disqualified an expert opinion on behalf of the defendants given by the treating doctor against his patient in violation of medical ethics rules!!), our office's policy on this matter is to routinely oppose this procedure of appointing experts on behalf of the court. For example, in Civil Case (Jerusalem) 2633/00 Daoud Oral (minor) et al. v. Maccabi Health Fund et al., we reached the Supreme Court with a request to disqualify a medical expert when it became clear that the latter, who was a friend of the expert on behalf of the defendants, wrote books with him and even served as a consultant in other cases for the insurance company MCI which was the actual defendant in that case, while the judge who sat in judgment in the District Court believed that none of this was sufficient to disqualify the expert, the Supreme Court thought otherwise. On this, the Honorable Judge Rivlin said:

"The appeal should be granted. The combination of circumstances raised in the request, and the need to maintain the appearance of justice and objectivity of the expert, tip the scales, in this case, if only slightly, in favor of appointing another expert instead of the expert who was appointed."

These days, proceedings are taking place in the Jerusalem District Court before the Honorable Judge A. Farkash. After mediation efforts failed, the defendants filed a request to appoint an expert on behalf of the court. The court, after hearing the parties' arguments, including our reference to the Daoud precedent mentioned above, and in light of our objection, rejected the request at this stage. Attached is the hearing protocol including the court's decision.

The defendants filed a motion for reconsideration for the appointment of the expert on behalf of the court, attached is the request.

In accordance with the court's decision, our office responded to the motion for reconsideration on behalf of the defendants, attached is the response, and we will upload to the site the court's decision on the additional request when it is given.

If you are interested in consulting with me in a case of medical malpractice, please contact me through the office website.