Judge Drori's groundbreaking verdict on the fragile X issue remains essentially unchanged
The Supreme Court, in the verdict of Justice Amit, joined by Justices Esther Hayut and Uzi Vogelman, maintained in principle the groundbreaking verdict of Justice Drori in the Fragile X matter (C.A. 2124/12 and 5203/13) dated October 30, 2014.
At the time, on January 27, 2012, Justice Drori issued his groundbreaking verdict in C.A. 5416/03 of the Jerusalem District Court, where he determined the liability of the health fund for the birth of a girl suffering from Fragile X syndrome and set very high compensation amounts totaling approximately ₪14,000,000, an amount that was reduced on appeal as detailed below.
Fragile X syndrome is a genetic syndrome that can be diagnosed through a special genetic test, the existence of which was possible from the early 1990s but was not included in the health basket as a mandatory test by the medical authorities until recent years.
This syndrome causes newborns to suffer from mental retardation, autism, significant physical weakness, susceptibility to severe illnesses, and other severe injuries, although not physical mobility limitations.
The Supreme Court confirmed Justice Drori's determination that in 1994, the treating gynecologist should have informed the mother during pregnancy about the possibility of a genetic test for Fragile X.
The Court reiterated the distinction made by Justice Drori between giving explicit instructions to perform the test, for which there was no obligation on the doctor, but in contrast, in 1994 the doctor had an obligation to inform the woman about the possibility of performing such a test privately and at her own expense, even when there was no obligation to perform it.
In doing so, the Supreme Court confirmed the legal construction performed by Justice Drori when he applied the Sidi doctrine (C.A. 4960/04 Eran Sidi v. Health Fund) from 2005, regarding ultrasound tests, where the distinction was developed between the obligation to refer for an extended scan and informing the mother about the possibility of such a scan privately, to Fragile X tests in the relevant years.
Regarding the damage, the Supreme Court reduced significant amounts from the damage assessment determined by Justice Drori.
a. The Court reduced the main damage head of assistance from others, where Justice Drori ruled in accordance with the Axelrod doctrine (C.A. 3375/99) an amount of ₪17,500 per month and determined that this amount "is on the high side, considering that the girl is completely independent in daily activities" and set the future monthly compensation for this damage head at ₪10,000.
b. Regarding pain and suffering, where Justice Drori ruled according to the various damage heads a total of ₪2,535,066 for the girl and her parents, the Supreme Court applied the "Hamar" doctrine (C.A. 1326/07), the doctrine that determined that in wrongful birth cases the cause of action is not of the child but of the parents, due to the excess expenses that were and will be caused to them, and canceled the child's cause of action for the tort caused before birth, and determined that the relevant damage heads are pain and suffering for the parents only and violation of autonomy, and ruled a total of ₪500,000 for each parent.
c. The Court determined that "once compensation has been awarded for third-party assistance for the past and future, there is no place for compensation for loss of earnings, which is a damage head awarded to the injured party" and reduced the amount of ₪395,990.
d. In summary, after deducting additional small deductions, the Supreme Court reduced the verdict values by the amount of ₪4,870,937 and set the verdict amount after deducting National Insurance benefits and adding attorney's fees at ₪8,000,000.
It should be noted that the girl in question is 100% disabled (14 years old at the time of the hearing), suffering from moderate mental retardation, cognitive and behavioral disorders, but her motor development is normal and she is relatively independent in daily activities. She cannot read or write, her language ability is limited, and she watches videos suitable for kindergarten age.
The Supreme Court confirmed Justice Drori's fundamental determination that the girl should not be placed in an institution and that the girl's best interest requires that she continue to live with her parents until age 21, and from that age or at a later date: "as long as the household members are able to bear the shared living arrangement, the girl will move to live adjacent to the parents' home with a dedicated caregiver."
We note that our office recently won a case (F.C.A. 5412/13 Red Crescent Hospital Association v. John Doe) in the Supreme Court where it was determined that in cases of "wrongful birth" (such as failure to diagnose a Fragile X defect), even in light of the Hamar doctrine from May 2011, parents have the right to file the lawsuit until August 28, 2015, even if seven years have passed since the birth.
