Couple wins damages after doctors fail to prevent pregnancy

The Haifa Magistrates’ court ruled Wednesday that the Health Ministry and Clalit health fund are at fault for the wrongful pregnancy of a woman who had undergone tubal ligation, awarding her and her husband NIS 130,000 (about $34,000) in damages. This is the first time an Israeli court has ruled that the birth of an unwanted healthy child can be attributed to negligence and malpractice by health care professionals.

The couple, who now has 10 children, sued the government and their health maintenance organization (HMO), Clalit Health Services, after being led to believe that a sterilization procedure they had asked for would prevent undesired conception. Clalit physicians who followed up on the woman’s condition following the procedure, overlooked the fact that she was pregnant again. Only 15 weeks into her pregnancy, after the husband asked to have his wife undergo the relevant blood tests, was the woman informed of the unsuccessful outcome of the procedure.

Judge Daniel Fisch said that the woman had received only a general description of the procedure she was about to undergo and that the consent form she was made to sign did not mention the possibility of an unsuccessful operation or even hint at any shortcomings. Fisch further said that the woman’s personal physician should have been able to detect the post-operative pregnancy but shirked her duties for not ordering pregnancy blood tests despite the training she had received.

An expert witness serving as a friend of the court accused the Clalit physician of malpractice for being wed to the belief that the woman could not be pregnant again, resulting in the misdiagnosis of the woman’s condition.

The judge concurred with his testimony, and said that the overwhelming responsibility for the wrongful pregnancy lies with Clalit Health Services, which was instructed to pay 90 percent of the penalty. The judge added that a wrongful pregnancy, in which an unintended conception takes place despite a medical procedure that is meant to prevent it, severely compromises the parents’ freedom of choice.