Doctor's Duty to Recommend Tests Outside the Health Basket: The Complete Legal Guide

July 9, 2026

One of the most common and complex questions in "wrongful birth" claims is: "Was the doctor required to offer me a test that isn't included in the health basket?"

The answer isn't simple — but the legal principle is clear: yes, in many cases — the doctor must!

In this article we explain

The difference between tests "in the basket" and tests "outside the basket"
When a doctor must recommend tests outside the basket
Where the line is between a "recommendation" and a "duty"
Which specific tests create a duty
What happens if the doctor did not recommend a test
Examples from Israeli case law

What Is the "Health Basket"?

The health basket is the list of medical services, medications, and tests that every Israeli citizen is entitled to receive free of charge (or for a symbolic fee) through their health fund (Kupat Holim).

The basket is updated once a year — a government committee decides which tests and medications to add, based on budget.

The problem:

Medicine advances faster than the basket
New and more accurate tests don't always enter the basket immediately
Sometimes years pass before an important test is added to the basket

The Gap Between "Optimal Medicine" and the "Health Basket"

The basket does not cover everything that the best medicine has to offer!

Examples:

Test	Basket status	Cost
NIPT (fetal DNA test)	Not in basket	ILS 1,500-3,500
Expanded carrier panel	Not in basket	ILS 1,000-3,000
Fetal MRI	Not in basket	ILS 2,000-4,000
Fetal exome sequencing	Not in basket	ILS 5,000-15,000
Extended fetal echocardiography	Partially in basket	ILS 500-1,500

The legal question: If a test is not in the basket — must the doctor offer it?

The Legal Principle - "The Required Standard of Care"

What Is the "Required Standard of Care"?

The court examines: what would a reasonable, skilled doctor have done in the same situation?

The rule: A doctor must provide care at the level of a reasonable and skilled doctor — not merely at the level of what is in the basket.

The meaning: If a reasonable doctor would have recommended a test outside the basket — a doctor who did not recommend it was negligent!

The basket is an economic minimum — not a medical minimum!

The General Rule: When There Is a "Medical Indication"

A "medical indication" = a medical reason to perform the test.

When there is a medical indication for a test — the doctor must offer it, even if it isn't in the basket.

What Is a "Medical Indication"?

A known risk factor (age, ethnic origin, family history)
An abnormal result on another test
A symptom that requires investigation
An accepted medical standard

Situation 1: When There Is a Known Risk Factor

When a recognized risk factor exists — the doctor must offer the appropriate test, even if it requires payment. For example:

A. Ethnic Origin

Ethnic origin	Risk	Required test	In basket?
Ashkenazi Jews	Tay-Sachs, Canavan, Familial Dysautonomia	Ashkenazi carrier panel	In basket (basic)
Ashkenazi Jews	Expanded panel (dozens of additional diseases)	Expanded panel	Not in basket
Arabs, Sephardi/Mizrahi Jews	Thalassemia, Sickle Cell	Carrier test	In basket (partial)
General population	SMA (Spinal Muscular Atrophy)	SMA carrier test	Not in basket (until recently)

The rule: If it is known that there is an ethnic risk for a particular test — the doctor must offer it, even if it isn't in the basket.

Example of negligence: An Ashkenazi Jewish couple. The doctor performed the basic Ashkenazi panel (in the basket) — but did not offer the expanded panel (not in the basket). It was not discovered that they were carriers of Fragile X (a leading cause of intellectual disability). A child was born with Fragile X.

The claim: The doctor should have offered the expanded panel.

B. Age

A woman over 35 → must be offered amniocentesis (in the basket)
A woman over 35 + an abnormal screening result → must be offered NIPT (not in the basket!) as an alternative to amniocentesis

C. Marriage Between Relatives

Cousins marrying → must be offered an expanded carrier panel (not in the basket)
The risk level is significantly higher than in the general population

D. Family History

A known genetic disease in the family → must be tested for a specific condition (sometimes not in the basket)

Situation 2: When a Screening Result Is Abnormal

If a screening test shows a high risk — the doctor must offer all diagnostic options, including those not in the basket.

Example: Combined screening (weeks 11-14) showed: a risk of 1:50 for Down syndrome.

The doctor must offer:

Amniocentesis (in the basket) — a definitive diagnosis, but with a small risk of miscarriage
NIPT (not in the basket, ILS 1,500-3,500) — nearly as accurate as amniocentesis, but with no risk!
CVS (in the basket) — similar to amniocentesis, but earlier

The doctor cannot offer only amniocentesis and ignore NIPT!

Example of negligence: A combined screening result showed a high risk. The doctor offered only amniocentesis. The woman underwent amniocentesis and miscarried (a rare but real complication).

The claim: Had the doctor offered NIPT, the woman would have chosen it (with no risk of miscarriage). The negligence caused the miscarriage.

Compensation: hundreds of thousands of shekels.

Situation 3: When There Is a Suspicious Ultrasound Finding

If the ultrasound found something suspicious — the doctor must refer for further diagnostic tests, even if not in the basket.

Examples:

A. Suspected Heart Defect

Anatomical ultrasound: "The heart isn't clearly visible"
Must refer for fetal echocardiography (sometimes not in the basket, ILS 500-1,500)

B. Suspected Brain Defect

Ultrasound: "Something isn't clear in the brain"
Must refer for fetal MRI (not in the basket, ILS 2,000-4,000)

C. Normal Chromosomes but a Structural Defect

A standard amniocentesis (chromosomes) came back normal, but the ultrasound shows a defect
Must offer fetal exome sequencing (not in the basket, ILS 5,000-15,000) — can identify rare genetic mutations causing the defect

Example of negligence: An anatomical ultrasound: suspected heart defect. The doctor said: "It's probably nothing, let's see at week 28."

He did not refer for fetal echocardiography. A baby was born with a severe heart defect requiring immediate surgery.

The claim: The doctor should have referred for fetal echocardiography immediately. Earlier diagnosis would have allowed better preparation — or a decision on pregnancy termination if the defect was more severe than expected.

Situation 4: When the Accepted Medical Standard Requires a Test

What Is an "Accepted Medical Standard"?

What most specialists in the field do in a similar situation.

The rule: If the accepted medical standard includes a particular test — the doctor must offer it, even if it isn't in the basket.

Example - NIPT: In recent years, NIPT has become an accepted medical standard worldwide for women over 35 or with increased risk. Even though it is not in the Israeli health basket — a doctor who does not offer NIPT to a woman over 35 with an abnormal screening result may be found negligent.

Example - Exome Sequencing: In advanced medicine worldwide, fetal exome sequencing is becoming standard in cases of a structural defect with normal chromosomes. Even though it isn't in the basket — a doctor who does not offer it may be found negligent.

Situation 5: When the Parents Ask

If the parents ask about a test — the doctor must answer honestly!

Prohibited:

Saying "you don't need it" when they do
Saying "it's not worth it" without explanation
Evading the question

Required:

Answer honestly
Explain what the test is
Explain what it checks for
Explain its cost
Recommend it if there is a medical indication

Example: A 33-year-old woman asked the doctor: "I heard about NIPT, should I do it?"

The doctor answered: "You don't need it, you're young, the combined screening is enough."

Later — a child was born with Down syndrome.

The claim: The doctor should have explained what NIPT is, what its benefits are, and let the woman choose.

Not every test is mandatory!

A. The Test Isn't Relevant

A test that checks for a disease with no connection to the situation

B. The Test Is Experimental and Unapproved

Tests that have not yet been proven reliable

C. Cost-Benefit Doesn't Justify It

Sometimes the risk is so low that the test adds nothing

The Limit - Who Decides?

The doctor does not decide on behalf of the patient!

The doctor offers and explains.

The patient decides — whether to pay for the test or not.

The problem arises when the doctor doesn't offer it at all!

Which Specific Tests Create a Duty?

1. NIPT - Mandatory in These Situations

The doctor must offer NIPT when:

✅ The woman's age is over 35 — even if not asked

✅ Combined screening with a high risk (over 1:250) — as an alternative to amniocentesis

✅ Pregnancy following IVF (in vitro fertilization) — increased risk for various reasons

✅ A previous child with a chromosomal syndrome — increased risk of recurrence

✅ A parent with a chromosomal abnormality

Cost: ILS 1,500-3,500

What If the Parents Cannot Afford It?

The doctor must still offer and explain. The parents will decide whether to pay.

2. Expanded Carrier Panel - Mandatory in These Situations

The doctor must offer an expanded panel when:

✅ Marriage between relatives (cousins or closer) — high risk of shared carrier status

✅ A previous child with a genetic disease not in the basic panel

✅ Family history of a rare genetic disease

✅ A parent with a known genetic disease

Cost: ILS 1,000-3,000

3. Fetal MRI - Mandatory in These Situations

The doctor must offer fetal MRI when:

✅ Suspected brain defect on ultrasound — MRI provides a much clearer image

✅ Ultrasound is inconclusive regarding the brain

✅ Family history of a brain defect

Cost: ILS 2,000-4,000

4. Extended Fetal Echocardiography - Mandatory in These Situations

The doctor must refer for fetal echocardiography when:

✅ Suspected heart defect on anatomical ultrasound

✅ A mother with diabetes (increased risk of heart defects)

✅ A mother exposed to teratogenic drugs (drugs causing birth defects)

✅ A previous child with a congenital heart defect

✅ A parent with a congenital heart defect

Cost: ILS 500-1,500

5. Fetal Exome Sequencing - Mandatory in These Situations

The doctor must offer exome sequencing when:

✅ A structural defect was found on ultrasound — and — a standard amniocentesis (chromosomes) came back normal. Exome sequencing can identify genetic mutations causing the defect

✅ Multiple defects — defects across several systems = suspected rare genetic syndrome

Cost: ILS 5,000-15,000

Important: Exome sequencing is new — the standard is still evolving. But in cases of a structural defect with normal chromosomes — it is already considered part of the required standard of care.

What Must the Doctor Explain About Tests Outside the Basket?

Offering it isn't enough — the doctor must explain!

What Must the Doctor Explain?

1. What the Test Is

What it checks for
How it's performed (painful? risky?)

2. What It Can Detect

Which defects/diseases
Its sensitivity (what percentage of cases it detects)

3. What It Cannot Detect

Every test has limitations

4. What the Test Costs

Precisely (not "it's a bit expensive")
Whether there is partial funding (supplementary insurance, private insurance)

5. What Happens If the Result Is Positive

What is done with the result
Whether further tests are needed

6. What Happens If the Test Isn't Done

What the risk is
What might be missed

7. His Recommendation

The doctor can (and should) recommend the test
But the final decision belongs to the parents

How Should It Be Documented?

The doctor must document in the file:

That the test was offered
That its nature was explained
That the cost was explained
What the parents decided

If the parents declined:

Document that they declined
Document that they understood the risk

Legal Implications

If the doctor did not recommend the test, and a child is born with a defect the test would have detected: the doctor may be liable for "wrongful birth".

What must be proven:

The doctor did not recommend the test (even though he should have)
The parents would have taken the test (had they known about it)
The test would have detected the defect
A defect of this kind would have received approval for pregnancy termination from the pregnancy termination committee
The parents would have terminated the pregnancy
A child was born with the defect

Example of a Successful Claim

Facts: A couple, ages 38 and 40. The doctor performed combined screening (in the basket). The screening showed a risk of 1:60 for Down syndrome.

The doctor offered only amniocentesis (in the basket). He did not mention that NIPT (not in the basket) exists. The woman feared the miscarriage risk of amniocentesis and did not undergo it. A child was born with Down syndrome.

Claim: Had the doctor offered NIPT (with no risk!), the woman would have taken it, discovered the syndrome, and terminated the pregnancy.

Ruling: The court accepted the claim:

The doctor was required to offer NIPT as an alternative
NIPT would have detected the syndrome (99% sensitivity)
The woman would have taken the test
The test would have detected the defect, and the pregnancy termination committee would have approved termination
The woman would have terminated the pregnancy

Compensation: approximately ILS 3 million (lifelong costs of caring for the child plus pain and suffering).

Example of an Unsuccessful Claim

Facts: A 28-year-old, healthy woman with no risk factors. Combined screening was normal. The doctor did not offer NIPT.

A child was born with rare mosaic Down syndrome (only a small percentage of cells carry the syndrome).

Claim: The doctor did not offer NIPT.

Ruling: The court dismissed the claim:

A 28-year-old with no risk factors — no indication to offer NIPT
The combined screening was normal
NIPT would not necessarily have detected mosaicism (low detection rate)
No negligence

The message: The duty to recommend a test depends on indication — not every woman needs every test.

Conflict of Interest - What If the Doctor Thinks the Parents Cannot Afford It?

The Common Problem

Doctors sometimes do not offer tests outside the basket because they think:

"They won't be able to pay"
"It's not worth offering and burdening them"
"They're from a lower socioeconomic class"

This is a mistake!

The Legal Rule

The doctor cannot decide for the parents whether they can/want to pay!

His duty: to offer, explain, and let them decide.

It's possible that:

The parents will save up to pay
Supplementary insurance will cover it
A relative will pay
They will prefer to pay for peace of mind

The doctor doesn't know! And therefore — he must offer it.

Example of This Type of Negligence

Facts: A couple from a peripheral area, low socioeconomic status. The woman is 37. The doctor did not offer NIPT "because they wouldn't be able to pay ILS 2,000." A child was born with Down syndrome.

Claim: The parents argued: had the doctor offered it, they would have found the money (a loan, family). They really did not want a child with a disability.

Ruling: The court held: the doctor has no right to decide what the parents can afford. He was required to offer it. The ruling — negligence.

Supplementary and Private Insurance - Does It Cover Tests Outside the Basket?

Supplementary Insurance (Health Fund Supplementary Plans)

Some tests outside the basket — are covered!

Examples:

NIPT — covered under some policies (check!)
Extended genetic counseling — sometimes covered
Fetal echocardiography — sometimes covered

Tip for doctors: When offering a test outside the basket — mention that it's worth checking the supplementary insurance.

Tip for parents: Before giving up on a test because of cost — check whether your supplementary insurance covers it!

Private Insurance

Private insurance sometimes covers more. Check your policy!

What Can Parents Do?

Before Pregnancy

✅ Check your supplementary insurance — what is covered?

✅ Ask your doctor: "Are there genetic tests recommended for us — even if not in the basket?"

✅ Report your family history — including diseases that seem "unimportant"

During Pregnancy

✅ Ask about every suspicious finding

✅ Ask about NIPT — even if the doctor doesn't offer it

✅ If you declined a test — document why (didn't want it, couldn't afford it, etc.)

✅ Keep all test results

If a Child Is Born with a Defect

✅ Contact an attorney specializing in medical malpractice and wrongful birth claims

✅ Check: did the doctor offer all relevant tests?

✅ Check: was there a test outside the basket that could have detected the defect?

✅ Gather the entire medical file — ultrasounds, test results, visit records

Summary - Key Points

The basket ≠ the medical standard — the basket is an economic minimum, not a medical minimum
A doctor must recommend tests outside the basket when there is a medical indication
5 main situations that create a duty: a known risk factor, an abnormal screening result, a suspicious finding, the medical standard, a parent's question
NIPT — must be offered to women over 35 and for abnormal screening results
Expanded carrier panel — mandatory for at-risk ethnic origin, marriage between relatives, family history
Fetal MRI and echocardiography — mandatory when there is a suspicious finding
Exome sequencing — mandatory when there is a structural defect with normal chromosomes
The doctor cannot decide on behalf of the parents whether they can/want to pay
Duty to document — every recommendation and every refusal must be documented
Check your supplementary insurance — it sometimes covers tests outside the basket!

The golden rule: when in doubt — the doctor must offer and explain. The parents will decide.

If you believe a doctor failed in their duty to recommend a test outside the health basket, contact us for consultation with a specialist medical malpractice attorney.

This article provides general information only and does not constitute legal or medical advice.