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Israel to pay millions to man who says he shouldn’t have been born

27-year-old with cerebral palsy, intellectual disabilities and schizophrenia wins malpractice ‘wrongful birth’ case against state-run hospital and HMO

Illustrative: a newborn baby in Jerusalem on October 29, 2018. (Hadas Parush/Flash90)
Illustrative: a newborn baby in Jerusalem on October 29, 2018. (Hadas Parush/Flash90)

The state and Clalit health maintenance organization will pay a disabled 27-year-old man NIS 9.2 million ($2.7 million) in a “wrongful birth” lawsuit, after a court ruled that doctors were negligent during his mother’s pregnancy.

The lawsuit was brought by the brother and legal guardian of the man, who has cerebal palsy and serious intellectual disabilities and was diagnosed with schizophrenia nine years ago, after his mother’s death in 2011.

According to the suit, the state-run Galilee Medical Center and Clalit HMO failed to detect the emerging congenital birth defects during the mother’s pregnancy in 1993 through routine tests. Doctors also failed to inform the mother of the option of aborting the fetus, despite knowing of her fragile mental state, it charged. Moreover, the mother, who suffered from schizophrenia, had also sought to terminate the pregnancy in its 29th week, but was told to return to the hospital three days later. She went into labor the next day.

According to the court documents, the woman was 43 at the time of the birth and the pregnancy was unplanned. She had previously given birth to five children, two of whom died in childhood — one in a drowning in a national park in 1975 at the age of six, and one by Sudden Infant Death Syndrome in 1978. Her husband died in 2017.

The lawsuit accused the HMO of failing to adequately monitor the fetus and perform genetic testing, and of failing to inform her of her options. The hospital, the plaintiffs argued, was negligent in sending the woman home when she sought to terminate the pregnancy, as she arrived in the hospital bleeding and other symptoms signaling she would soon go into labor prematurely.

The Lod District Court accepted the arguments earlier this month and ordered the state and HMO to compensate the man, as well as cover legal fees, according to Channel 12.

Israel’s Supreme Court in 2012 distinguished between “wrongful birth” lawsuits when parents sue the authorities, and “wrongful life” cases, when children or their guardians sue, and disqualified the latter as a cause of action. The case heard this month in Lod was accepted as a “wrongful birth” claim, though the plaintiff’s parents are no longer living.

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