The statute of limitations for filing lawsuits for children born in "wrongful birth" cases was extended by the Supreme Court until August 28, 2015
On August 28, 2014, our office won a very important and principled verdict (CA 4512/13 and FCA 6201/13 Red Crescent Hospital v. John Doe): The verdict issued by the Supreme Court established that parents of children born with defects that were not diagnosed during pregnancy (due to negligence by the treating doctor or in the ultrasound examination) – will be able to file a lawsuit even if the birth occurred more than 7 years ago (and even 24 years ago!) provided that the lawsuits are filed by August 28, 2015!
To understand the importance of the verdict, we need to go back a bit in the "time machine."
About 30 years ago, a verdict known as "Zeitsov" was issued by the Supreme Court. In this verdict, the right of a child born with defects that were not diagnosed during pregnancy to sue the doctor for his negligence was established for the first time.
This type of lawsuit was called "wrongful birth." In the aforementioned verdict ("Zeitsov"), the judges remained in dispute (which was not resolved for 30 years) about what type of damage that was "missed" during pregnancy can be sued for. Whether only for very severe defects or also, for example, for the absence of a hand.
Due to these and other disputes in the interpretation of the verdict – a verdict called "Hamar" was issued about two years ago by the Supreme Court, in which verdict "Zeitsov" was canceled and the court ruled:
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The child has no right to sue the doctor who did not diagnose defects during pregnancy.
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The right to sue in such a case is granted only to the parents.
In light of the "Hamar" verdict, a serious legal complication arose! If the right to sue belongs only to the parents, then their lawsuit expires after 7 years from the date of birth, whereas when the lawsuit was the minor's lawsuit, he could sue until reaching age 25! (7 years after reaching age 18)
What will be the fate of children born with defects that were missed during pregnancy more than 7 years ago, and whose parents did not file the lawsuit because they thought all along (in accordance with the "Zeitsov" verdict) that they had time until reaching age 25?!
In the Red Crescent case against John Doe, we represented such a child. His lawsuit was filed after the "Hamar" verdict, but his birth was more than 7 years earlier.
The hospital claimed that the lawsuit was time-barred. We argued that the lawsuit was not time-barred because it is inconceivable that the Hamar verdict intended to deprive these children and their parents who, in their innocence, did not rush to file the lawsuit since they believed that the statute of limitations was only at age 25.
The Supreme Court accepted our argument and ruled that all these children and their parents should be given a "reorganization period" of 3 years from the date of the "Hamar" verdict, and since two years had already passed since the "Hamar" verdict, it ruled that parents of children born with defects who are currently seven years old and above and up to age 24 may file lawsuits for one additional year, that is, until August 28, 2015**.
Following our victory in the verdict, the Israel Bar Association reached out and through it informed the public of their right to file a lawsuit in such a case by August 28, 2015.
