Legislative New / May 2011
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Summary of Israeli Supreme Court Judgement: Eliyahou Vidan against Ministry of Health and various health insurance funds (HMOs).
The case is an unprecedented one, both in Israel and internationally. A number of family members who, by the noble act of living kidney donation, donated a kidney to a sick relative, demanded compensation for this act of donation. The recipients were registered, or were entitled to be registered, on the national waiting list of candidates for kidney transplantation, administered by the National Transplant Center, but due to shortage of organs for transplantation and the long waiting time, the donors decided to donate a kidney to their relatives.
The plaintiffs argue that the State and the various HMOs, being responsible for the maintenance of the health system in Israel, were negligent in fulfilling their obligations to the recipients in that they did not provide them with organs for transplant.
The complaint was made in relation to the State that the National Transplant Center was negligent in its role of encouraging and increasing public awareness regarding organ donation.
The plaintiffs further argue that by donating a kidney they saved the State and the sick funds a large amount of money since the recipients no longer need dialysis treatments and were no longer entitled to the rights and benefits they enjoyed to prior to the transplant
According to the plaintiffs, the total annual savings rate totals 350,000 NIS per year (approx $100,000), for each recipient.
Plaintiffs' counsel, Dr. Shmuel Yelinek, who wrote a doctoral thesis about compensated organ donation and published a book on the subject, tried using the above claim to bring about a change that will enable the provision of compensation for organ donation and make a difference in the firm position of organ transplant law which denies any and all compensation. In doing so he hoped to encourage and incentivize people to donate.
The District Court, in a comprehensive ruling, rejected the plaintiffs' main claims but ruled that HMOs must indemnify the donors for expenses directly incurred as a result of the transplant surgery, in accordance with the Health Insurance Law. It was determined that in a kidney transplant donation reimbursement to donors should include loss of earnings, days of hospitalization, travel expenses, convalescence expenses , unusual medical expenses not covered under insured medical srevices. As a result, the Court held that a global compensation, without detailed receipts, for a total of 36,000 NIS (approx $10,000) should be provided for each of the plaintiffs.
The ruling of District Court was appealed in filings both by plaintiffs and by the HMOs.
The comprehensive verdict of Supreme Court justices, after examining each of the plaintiffs' claims which were based on a series of laws, rejected all claims, including any claims in relation to savings resulting to the State and the HMOs and claims relating to negligence. The court noted that the moral obligation to ensure the existence of proper and effective transplantation system puts no legal obligation on those who provide organs to do so, as if the organs were products that could be sold to any buyer. The court also ruled that although the kidney donation reduces medical expenses for the patient, the public treasury does not become enriched, since any savings are redirected for the benefit of the general public.
On the contrary, the court accepted the appeal of the HMOs and ruled that the Health Insurance Law is the source of the obligation of the HMOs and the State to finance a kidney transplant and all the necessary medical treatments resulting from this analysis both for the recipient and the donor, but that there was no other additional fiscal responsibilty in particular not for a donor who was not an insured contributor.
In this context, the court determined that “finding of the lower court that according to the National Insurance Law each plaintiff was to be compensated 36,000 NIS (approx $10,000) for damages related to the organ donation can not stand”.
However, in an exception to the law, the Court allowed, that in light of the special circumstances of the case, in that the donors had already been paid on the basis of the lower court's decision, they would not be required to return the money.
The Court welcomed the organ transplant legislation of 2008 and the organ transplant regulations (payment of compensation and reimbursement for donor expenses) of 2010. The court notes that the laws and regulations reflect an appropriate balance between the criminal prohibition of the receipt or provision of a financial reward for organ donation, and donor reimbursement to prevent the donor for being at a financial loss as a result of the donation.
In this respect the court also determined that organ donors who doanted before the current laws and regulations went into effect are not entitled to reimbursement of expenses or any payment at all.
The importance of this ruling go far beyond the context of prevention of trafficking organs in Israel, and the farfetched implications in the event that the claim of the plaintiffs had been accepted. This claim would have created a dangerous precedent in that every time someone did something that saved the country money the State would have to pay him the amount saved.