Parents, Genetic Syndrome, Medical Records and Medical Malpractice

Recently, a verdict was issued by the District Court in the Central District in which a lawsuit by a child and his parents against a health fund was dismissed, claiming that the child was born with a certain genetic syndrome.

According to the facts of the case, the mother underwent several genetic tests, one of which came back 'not good,' meaning that she is a carrier of a certain syndrome. This required the father to be tested as well, which was not done. Fortunately, the first two births ended well, but in the third birth, a child was born with the syndrome.

The parents claimed that they simply did not know that the test showed the mother was a carrier, because at the time the test was sent to them, they were not in the country, and at their request, the results were sent to the doctor. The medical record indeed states that all tests were normal except for one in which the mother was found to be a carrier, and therefore the father was referred for a carrier test. However, the parents claimed that the doctor did not inform them of the content of the record but rather wrote it down for himself when he received the results (when they were abroad, as mentioned), and upon their return, he did not update them.

The court did not accept the parents' version and dismissed the lawsuit, with the main reasons being:

• The visit in which the test results were recorded was after the parents' return

• At the time of that visit, according to the computer, two referrals were issued: one for the father to perform a carrier test, and the second for the mother to perform a triple test, which she admits she performed. This indicates that they received the referral for the carrier test in hand at that same appointment.

• The court accepted the version of the genetic institute that at the time of the incident, they did not send results to the treating doctor but only to the tested person. Therefore, there was no way for the doctor to receive the results except after they went through the plaintiffs.

• An interesting point: the court accepted testimony from a doctor who testified that after the syndrome was discovered, the father "blurted out" that he thought he didn't need to do the carrier test because he is "only a quarter Ashkenazi."

Our office is accustomed to arguing that what is not recorded in the medical record does not exist. Indeed, courts in Israel have ruled time and again that if the doctor did not record in the record what he should have recorded, then he did not do what he now says he did or did not say what he now says he said.

This verdict is the mirror image of the above, meaning that when the record in the file actually favors the doctor, it will be very difficult for the patient to contradict the record, and there is a chance that his lawsuit will be dismissed if it is based on the claim that the record is incorrect.

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