Background
In September 2022, reports emerged that an IVF procedure at Assuta’s Rishon LeZion hospital had resulted in a patient carrying an embryo genetically unrelated to her or her partner. Four proposed class actions were subsequently filed by other patients who had undergone similar IVF treatment. The consolidated certification proceeding alleges that Assuta’s acts and omissions caused the embryo-switch incident and inflicted nonpecuniary harm on class members.
Following the incident, the Ministry of Health established an investigative committee under section 21(a) of the Patient Rights Law, 1996, to develop systemic conclusions and recommendations for improving Israel’s IVF system. The committee issued its report in March 2023. The proposed class representatives sought to add the report as evidence, asserting that it identified safety violations, failures involving fertilized-egg preservation and medical records, excessive workload, and a mismatch between treatment volume and available infrastructure.
The Central District Court granted the request. It held that section 21 distinguishes the committee’s findings and conclusions from its deliberative protocols: the protocols receive statutory protection, but the findings and conclusions do not. It also found the report relevant and permitted its late submission, addressing the delay through its costs ruling. Assuta sought leave to appeal.
The Court’s Holding
Justice Ofer Grosskopf denied leave to appeal without requesting a response. The Supreme Court held that the findings and conclusions of an investigative committee established under section 21 are not privileged and may be admitted in judicial proceedings. Section 21(b) requires disclosure of those materials to specified recipients but does not prohibit disclosure to anyone else. By contrast, section 21(c) expressly limits delivery of the committee’s protocols, demonstrating that the legislature deliberately treated the two categories differently.
The Court also contrasted section 21 with section 22, which expressly makes the proceedings, materials, summaries, and conclusions of quality-control committees privileged and inadmissible in any legal proceeding. That express prohibition, absent from section 21, confirmed that investigative-committee findings and conclusions are admissible. The Court did not decide the precise extent of the protection applicable to an investigative committee’s protocols because only the report’s findings and conclusions were at issue.
The Court further declined to disturb the District Court’s procedural decision permitting the report’s late addition. Trial courts have broad discretion over new evidence, particularly in class-certification proceedings. Although the request came relatively late, the proceeding had been delayed by consolidation and a change of judge, the report postdated the original certification applications, its disclosure had previously been sought, and certification remained undecided. Given the report’s relevance and possible importance, the District Court acted within its discretion. The application was denied with no costs because no response had been requested.
Key Takeaways
- Findings and conclusions of an investigative committee under section 21 of Israel’s Patient Rights Law are not privileged and may be used as evidence in court.
- The Court distinguished committee findings and conclusions from deliberative protocols, while leaving the precise scope of protection for protocols unresolved.
- A trial court may allow relevant evidence at a relatively late stage when the delay is adequately explained and the opposing party’s interests can be addressed through costs or other procedural measures.
Why It Matters
The decision clarifies an important evidentiary boundary in Israeli medical litigation. A healthcare provider cannot exclude a section 21 investigative report merely because the statute directs that its findings and conclusions be given to certain recipients. Without an express restriction, those materials remain available for use in judicial proceedings.
The ruling may make systemic findings from investigations of exceptional medical incidents significant evidence in malpractice and class-action cases. At the same time, it preserves a distinction between final investigative findings and the committee’s underlying deliberative record, whose legal protection the Court expressly declined to resolve.