How to Sue for Undiagnosed Defects: The Complete Legal Guide

Wrongful Birth: The Complete Legal Guide – How to Sue for Undiagnosed Defects

June 22, 2026

A "wrongful birth" claim (more precisely called "life with a defect" since a 2015 Supreme Court ruling, though we use the better-known term here) is one of the most complex claims in Israeli medical law. It requires proving several legal elements, involving medical and economic experts, and a lengthy legal process.

But — when proven — the compensation awarded is among the highest in Israeli law.

In this article we explain:

Who can sue and for what
The elements that must be proven
What causation is and why it is the key
What experts are required
The litigation process
The odds and the risks

What Is a "Wrongful Birth" Claim?

Definition

"Wrongful birth" is a cause of action by parents against a physician or medical institution, claiming that:

The doctor failed to diagnose a fetal defect that should have been diagnosed (or failed to refer to appropriate tests that would have revealed it)
Had they known about the defect — a pregnancy termination committee would have approved termination on that basis
The parents would have terminated the pregnancy had the committee approved it
Because the defect was not diagnosed — a child was born with the undetected defect
The child's life with the defect will entail costs and losses compared to the life of a child and person without the defect

Who Can Sue?

Both Parents

Both the mother and the father can sue — separately or jointly. Claims are usually filed jointly. Compensation goes to the parents, not the child (but includes child care expenses).

Who Cannot Sue?

The child themselves.

What Is Being Claimed? – Causes of Action

Cause 1: Negligence

The primary basis for the claim. The doctor was negligent when they:

Failed to perform a required test
Misinterpreted test results
Failed to refer to a specialist when required
Failed to explain the risks to the parents

Cause 2: Breach of Duty of Disclosure

The doctor failed to disclose information they should have shared:

The existence of a defect
Available tests (including those outside the health basket)
The prognosis

Cause 3: Breach of Informed Consent

The parents were unable to make an informed decision because they did not receive the necessary information.

Cause 4: Violation of the Patient Rights Law

The Patient Rights Law, 1996 defines clear rights: right to information, right to informed consent, right to privacy.

Elements That Must Be Proven – "The 4 Ds of Negligence"

To win a medical malpractice claim, 4 elements must be proven:

Element 1: Duty of Care

The doctor owed the parents a duty of care. This is easy to establish — once a doctor-patient relationship is formed, a duty of care exists.

Who owes a duty? The treating physician, the sonographer, the hospital / health fund, and everyone involved in the treatment.

Element 2: Breach of Duty

The doctor breached their duty of care — that is, acted below the required standard.

How to prove this:

a. Defining the standard — what would a reasonable, skilled doctor have done in the same situation?

b. Proving the deviation — the doctor did less than a reasonable doctor would have done.

Examples of breach:

Failed to refer a woman over 35 for amniocentesis
Failed to offer NIPT for an abnormal screening
Failed to see an obvious defect on ultrasound
Failed to explain the prognosis

How to prove the standard?

Expert testimony (a medical expert testifying what the standard was)
Professional guidelines (from medical associations)
Medical literature
Previous case law

Element 3: Causation – The Hardest to Prove!

This is the heart of the claim — and one of the most challenging points to establish.

What must be proven:

"But for the doctor's negligence — the child with the defect would not have been born."

The "but-for test":

But for the doctor's failure to refer for testing — we would have had the test done
But for the doctor's failure to explain the defect — we would have approached a pregnancy termination committee, which would have approved termination for this type of defect
After the committee approved — we would have terminated the pregnancy
Because the pregnancy was not terminated — the child was born with the defect

The 4 links in the chain that must be proven:

Link A: The parents would have done the test — had the doctor offered/referred them
Link B: The test would have identified the defect
Link C: A pregnancy termination committee would have approved termination for the type of defect that was missed
Link D: The parents would have terminated the pregnancy — this is the most critical link!

Element 4: Damages

The damage is clear — a child was born with a defect, and significant future care costs exist.

Causation – The Hardest to Prove

What Do the Defendants (Doctors) Argue?

Defendants will try to break the chain of causation:

Argument A: "The parents would not have done the test"

"They would have refused amniocentesis"
"They could not afford NIPT"

Argument B: "The test would not have identified it"

"The defect was not detectable by ultrasound"
"The detection probability was low"

Argument C: A pregnancy termination committee would not have approved termination for this type of defect

Argument D: "The parents would not have terminated" — the most common argument!

"They are religious — they would not have terminated"
"They previously said they were against abortions"
"There is no proof they would have terminated"

How to prove the parents would have terminated?

This is the most sensitive issue in the claim. Evidence accepted by courts:

A. The parents' own declaration

"We declare we would have terminated" — this declaration is very important, but alone it is not enough.

B. Consistency with the declaration

Did the parents act consistently with the declaration?
Did they seek tests early and comprehensively?
Did they ask questions about the fetus's condition?

C. Previous positions

Did they previously say they would not want a child with a disability?
Did they declare they would terminate a pregnancy in such circumstances?
Did they declare in previous (or later) pregnancies that they would not abort even if the child has a defect?

D. Personal circumstances

Parents' age, financial situation, other children, attitudes toward disability in general.

E. Previous terminations

If they terminated a previous pregnancy — evidence of their position.

The core problem

Parents say: "We would have terminated." Defendants say: "There is no way to know." The court must decide — on the balance of probabilities.

The standard: "Balance of probabilities" — is it more likely than not that they would have terminated? 50%+1 = sufficient for proof.

What does the court examine?

In favor of the plaintiffs (parents):

Did they seek tests early and thoroughly?
Did they ask questions about the fetus's condition?
Did they consistently declare they would have terminated?

In favor of the defendants (doctors):

Is there evidence of a religious stance against abortion?
Did the parents previously refuse tests or termination proposals?
Are there contradictions in their account?

How to Prove Negligence? – Legal Tools

Medical Expert Testimony

This is the most central tool! The expert reviews the complete medical file, assesses whether the doctor acted to standard, explains what should have been done and was not, and explains what the test would have revealed.

Types of experts required:

Genetic defect → geneticist and specialist gynecologist in ultrasound
Heart defect → pediatric cardiologist
Brain defect → neurologist
Ultrasound expert — if the claim is that the defect was not diagnosed
Genetics expert — if the claim is that genetic testing should have been ordered

How much does an expert cost? 15,000–35,000 ILS per opinion (sometimes more, depending on complexity).

A medical expert opinion is the "entry ticket" to court — without it, a medical malpractice claim cannot be filed at all.

Reviewing the Medical File

This is the first step — before anything else.

What to gather:

From the doctor / health fund:

Complete pregnancy medical file
Results of all tests
Visit records
Referrals given
Amniocentesis / CVS documents (if performed)

From the hospital:

Delivery file
Labor and delivery room records
Test results from birth

Ultrasound results: The images themselves (not just the report! Sometimes what was not written in the report — was seen in the image), and ideally a video recording of the examination.

How to get the file? Legal right! Every patient is entitled to their medical file. Written request to the doctor / health fund / hospital. If refused — contact the medical director, the Ministry of Health, or in extreme cases — a court order.

Consulting a Specialist Attorney

Wrongful birth claims are very complex. A specialist attorney knows which questions to ask, which experts to bring, how to manage the case, and what the case law says.

How to choose an attorney?

Specific experience in medical malpractice / wrongful birth claims
Successful past cases
Reputation — reviews and recommendations
Fee structure — most attorneys work on a percentage basis (No Win No Fee)

What percentage? Typically 20–30% of the compensation (sometimes + expenses).

The Litigation Process – Step by Step

Step 1: Initial Consultation with an Attorney — Immediately!

Why immediately? Statute of limitations!

In "life with a defect" claims — since this is the parents' claim, not the minor's — the statute of limitations is 7 years from the date of birth.

Recommendation: Don't wait! Consult an attorney as soon as possible.

Why quickly?

Evidence disappears (ultrasound images, records)
Witnesses forget
Hard to reconstruct circumstances after years

Step 2: Initial Consultation and Evidence Gathering

With the attorney:

Complete medical file from all sources
Ultrasound images (not just reports!)
Testimony from people who can confirm the parents' positions
Documents, and recordings if any, showing what the doctor said / did not say

Step 3: Expert Opinions

The attorney will engage experts:

Medical expert — to confirm there was negligence
Rehabilitation / economic expert — to assess the child's needs and costs

This takes time and costs money — but it is essential.

Step 4: Filing a Statement of Claim

Which court has jurisdiction:

Up to 2,500,000 ILS → Magistrates Court
Above 2,500,000 ILS → District Court

In wrongful birth claims — almost always District Court (the amounts are high).

The statement of claim includes: description of facts, legal arguments, damages claimed, and relief sought.

Step 5: Statement of Defense

The defendants file a statement of defense — denying the claims and raising counter-arguments.

Step 6: Discovery and Pre-Trial Proceedings

Both parties must disclose relevant documents. Sometimes: written interrogatories, pre-trial depositions.

Step 7: Mediation / Settlement Attempt

Courts usually refer cases to mediation. Most claims end in settlement (70–80%) — even after being filed in court.

Advantages of settlement: Faster, more certain, less stressful. Disadvantages of settlement: Sometimes lower than a court judgment.

Step 8: Hearing Evidence and Trial

If no settlement is reached — trial. Trial days: 5–10 (spread over many months). Total time to judgment: 3–4 years from filing.

What happens:

Parents testify — describe what happened, what they knew, what they would have done
Plaintiffs' experts testify
Cross-examination of experts by defendants' attorney
Defendant doctor(s) testify
Defendants' experts testify
Closing arguments from both sides

Step 9: Judgment

The judge decides: Was there negligence? Is there causation? What is the compensation amount?

If you win — the defendants pay compensation + legal costs (usually). If you lose — you may pay the defendants' costs.

Step 10: Appeal (If Needed)

Either party can appeal (to District Court if originally in Magistrates, to Supreme Court if in District). An appeal takes another 1–3 years.

Who to Sue?

The treating physician — who managed the pregnancy (gynecologist, family doctor). Liable for failing to refer for tests, failing to explain, failing to disclose.

The sonographer — who performed the ultrasound if they failed to see a defect they should have seen.

The hospital / health fund — liable for its employees' negligence, usually has liability insurance. Recommended to sue the institution too — to ensure there is a solvent defendant.

A geneticist or other specialist — if a geneticist failed to identify carrier status, or another specialist missed something.

Multiple defendants together — sometimes suing everyone involved. The court will apportion liability according to each party's contribution to the harm.

Special Challenges in These Claims

Challenge 1: Proving "What Would Have Happened"

The claim is built on a hypothetical scenario: "If the doctor had done X — we would have done Y — therefore the child with the defect would not have been born." This is always speculative. The solution: solid evidence of the parents' positions, supporting testimony, consistent declarations.

Challenge 2: Emotional Sensitivity

The trial places parents in a difficult position — they must declare they would have terminated a pregnancy while their child exists. Psychological preparation is important — the attorney will help.

Challenge 3: Counter-Experts

Defendants bring their own experts who say the doctor acted to standard, the defect was not detectable, and the parents would not have terminated. A "battle of experts" — the judge must decide who is right.

Challenge 4: Establishing Economic Damage

Proving future expenses for decades: what will treatments cost in 30 years? What will caregivers charge? What is the child's life expectancy? An economic expert helps, but there is uncertainty.

Challenge 5: Time and Cost

Such a claim takes 3–5 years and tens of thousands of shekels in expenses. No Win No Fee helps — but there is still pressure.

How Much Does a Claim Cost?

Item	Cost
Medical expert opinion (one expert)	15,000–35,000 ILS
Economic expert opinion	10,000–30,000 ILS
Court filing fee	800–1,500 ILS
Translations / copies	2,000–5,000 ILS
Attorney's fee	25–30% of compensation (No Win No Fee)

If you lose — you generally do not pay the attorney, but may pay the other side's costs.

Sample calculation:

Compensation: 5,000,000 ILS
Attorney (25% including VAT): 1,500,000 ILS
Expenses: 50,000 ILS
Remaining for you: 3,450,000 ILS

Summary – Wrongful Birth Claim Checklist

Before filing:

Gather the complete medical file (from the doctor, hospital, health fund)
Gather ultrasound images (not just reports!) and ideally video recordings
Consult a specialist attorney in medical malpractice
Don't wait — there is a statute of limitations!

The four elements to prove:

Duty of care — exists (always, in a doctor-patient relationship)
Breach of standard — a medical expert will confirm
Damages — clear (a child was born with a defect)
Causation — the hardest! Must prove you would have terminated

Critical evidence:

Complete medical file
Medical expert opinion
Economic expert opinion
Evidence of parents' position (that they would have terminated)

Remember:

7-year statute of limitations from birth
No Win No Fee — generally no payment if you lose
Most claims end in settlement — trial is not required
Compensation can reach millions

Contact us for a free initial consultation on wrongful birth claims.

This article provides general information only and does not constitute legal advice. For any specific case — consult a specialist attorney.