Case Number

CA 8710/17

Date Decided

8-6-2019

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An appeal of a District Court judgment denying the Appellants’ lawsuit for wrongful birth of their daughter, who has Down’s Syndrome. The appeal focused on the scope of the duty of disclosure imposed on an attending physician, which was divided into two sub-questions: Does the duty of disclosure require a physician to disclose religious information regarding obligations and restrictions that derive from a patient’s religious belief or law that are relevant to the medical treatment? Is a physician obligated to provide patients with medical information that is adapted to obligations and restrictions of this nature? An additional question addressed was whether to raise the standard of disclosure required of a physician who customarily expanded on the information disclosed to his patients to include religious information or medical information adapted as noted above, in light of the Stern rule.

The Supreme Court (per Justice Willner, Justices Hendel and Mintz concurring) denied the appeal, holding:

First, the Court, per Justice Willner, discussed the normative framework relevant to the obligation to obtain informed consent for medical treatment and the duty of disclosure that derives from it, noting that the issue of breaching the duty of disclosure would be addressed in light of the tort of negligence, given the Appellants’ choice to sue on those grounds.

The Court held that, according to the relevant statutory provisions and the case law, the duty of disclosure imposed on physicians is limited to medical information alone, and does not include religious information related to restrictions and obligations of religious faith. In other words, a physician is not required to provide a patient with religious information relevant to his medical care. The Court held that it would be inappropriate to expand the scope of the duty of disclosure to adapting medical information to the patient’s religious characteristics when there is no medical indication for such disclosure. That is notwithstanding the recognition that a patient’s intelligent decision is naturally also informed by considerations that derive from his religion and beliefs.

The Court noted that, in the context of the duty of disclosure, a physician is not required to adapt the medical information he provides to a patients’ religious beliefs and restrictions if they arise in the framework of an inquiry initiated by the physician or derive from a presumption based on external factors that would appear to indicate the patient’s religion.

The Court held that only when the patient, at his own initiative, asks the physician for medical information adapted to his religious characteristics, is the physician required to disclose this type of information to the patient. That is because when a patient initiates such a request, his question changes the nature of the relationship between the physician and the patient, creating a different standard of disclosure based on the patient’s expectation of receiving medical information conforming to his request. In that case, the physician bears a duty to disclose all the individual information that is relevant for the patient, in accordance with his request, in the framework of the test of reasonableness and the other tests that apply to the tort of negligence.

If the patient wants to receive medical information adapted to his religious characteristics, namely a right of disclosure that goes beyond the customary duty of disclosure, he bears the burden of requesting it from the physician. Note that even when the patient asks his physician for medical information adapted to individual religious characteristics, the physician is not required to disclose religious information to him, but only adapted medical information. That is because religious information is beyond the bounds of the physician’s expertise in his role as a physician. It is therefore inappropriate to include such information within the duty of disclosure.

Applying the above to the circumstances of the case at bar led to denying the Appellants’ arguments regarding breach of the duty of disclosure by the Respondents.

The Court noted that, according to the Stern rule, once a medical institution adopts practices and procedures that are more stringent than the customary practice, it demonstrates that it possesses the information required to operate with extra care and caution. Thus, it has been held that the standard of reasonable conduct that such an institution is required to maintain should be “elevated” by attributing the specific medical institution’s unique knowledge and expertise to the test of the reasonable medical institution, according to which that institution’s conduct is evaluated. The Court rejected applying the Stern rule to the present case, holding that the lower court correctly found no basis for raising the standard of conduct required of the Respondents to the point of requiring them to disclose information to patients about religious restrictions or medical information adapted to individual religious characteristics, just because it was allegedly their practice to do so.

Justice Mintz concurred in the opinion of Justice Willner and added that the attending physician should completely avoid providing “religious information” or medical information adapted to the religious characteristics of a patient if not requested to do so, if only because of the physician’s lack of knowledge about such religious characteristics, which are completely beyond his professional medical expertise. That is true even if the physician has acquired extensive religious-legal knowledge as a result of his clinical experience.

Justice Hendel concurred with the main points of Justice Willner’s opinion, but was of the opinion that there may be situations in which a physician would do well to provide patients with religious information that he knows, even indirectly, but he would not hold that there is a duty to do so. Justice Willner disagreed with that position because disclosing religious information is not the obligation of the physician, and it is completely beyond the bounds of his role and expertise. Justice Willner also did not agree with Justice Hendel’s suggestion that a physician would do well to inform a patient of the option of speaking with rabbis or other religious leaders whose opinions may differ from those of the patient’s rabbi, or offer to speak with the rabbi advising his patient, because doing so would unequivocally deviate from the role of the physician and could be interpreted as violating the patient’s sensibilities.

Keywords

Health -- Patient’s Rights, Health -- Physician's duty to disclose, Islamic Law

Download

Share

COinS