Background
The applicants—a minor born in 2015 and her parents—brought a negligence action against Clalit Health Services and the Ministry of Health. They alleged that the defendants failed to diagnose microcephaly and brain abnormalities during the mother’s pregnancy. A late anatomy ultrasound performed at 24 weeks on July 9, 2015, was reported as normal.
The applicants argued that Clalit should have provided a disk recording the ultrasound. Without it, they maintained, they could not prove that the abnormalities were already visible during the examination and therefore suffered evidentiary damage. Clalit responded that no disk had ever existed because the governing practice did not require a normal examination to be recorded on electronic media. The findings were documented in writing, and five images were given to the mother. The Tel Aviv–Jaffa District Court held that Clalit had satisfied its documentation obligations and caused no evidentiary damage.
The Court’s Holding
Justice Yael Willner denied leave to appeal without requesting a response. The Court explained that an evidentiary-damage claim requires factual uncertainty caused by negligent damage to evidence under the defendant’s control, preventing the claimant from proving facts needed for the claim. Because compliance with the accepted medical practice ordinarily does not constitute negligence, the applicants had to establish that Clalit departed from the documentation practice applicable at the time.
The relevant professional position paper and Ministry of Health directive provided that a written report was sufficient when an ultrasound produced normal findings. Even for abnormal findings, attaching recorded media was recommended rather than mandatory, and photographs could adequately document pathological findings. The applicants did not show that prevailing practice imposed stricter requirements. Section 17 of the Patient’s Rights Law required a “medical record,” but did not require a disk or other media recording; the applicable record-retention regulations likewise imposed no duty to preserve a recording that was never required to be created. Clalit therefore was not negligent in failing to create or retain a disk, and the applicants failed to establish evidentiary damage.
Key Takeaways
- A provider’s failure to preserve evidence supports an evidentiary-damage claim only when the loss resulted from negligence and prevents the claimant from proving facts necessary to the case.
- For a prenatal ultrasound reported as normal, the applicable professional and regulatory guidance required a written report, not a disk or other complete media recording.
- A statutory duty to maintain a medical record does not itself require every examination to be recorded photographically or electronically.
Why It Matters
The decision limits evidentiary-damage arguments based solely on the absence of a complete recording of a medical examination. Claimants must identify a legal or professional duty to create and preserve the missing material and show that the provider departed from the practice prevailing at the relevant time.
For healthcare providers, the ruling confirms that contemporaneous professional guidance and Ministry of Health directives can be important evidence of the applicable documentation standard, although a claimant may attempt to prove that actual accepted practice was more demanding.