Do doctors have to ask their patients about their religious beliefs and advise them accordingly? Israel's Supreme Court doesn't think so, and rejected the appeal of a woman who claimed that her doctors neglected to tailor their medical advice to her religious beliefs.
A 41-year-old Muslim woman who was pregnant with her sixth child went to a nearby medical clinic for routine pregnancy care, as reported in a Maariv report on Tuesday. The medical staff instructed the woman that due to her age, she should have advanced diagnostic tests such as amniocentesis, in the early weeks of the pregnancy, to evaluate the condition of her fetus.
The woman chose not to do so but had an ultrasound test performed at the end of her twelfth week of pregnancy, which indicated that her baby was at high risk of being born with Down syndrome. The clinic staff referred her to genetic counseling and explained to her again about the option of receiving an amniocentesis.
During her fourth week of pregnancy, the women went to a clinic in Nazareth for genetic counseling from Prof. Joel Zalotogura, who also recommended amniocentesis. However, the women waited until the twentieth week of pregnancy to receive an amniocentesis, which showed that her baby did have Down syndrome. The doctor referred the couple to a committee for pregnancy termination.
However, meanwhile the couple spoke with a Muslim cleric, who said that the Islamic religion prohibits cessation of pregnancy if 120 days had passed since conception. The couple decided to continue with the pregnancy, and their daughter was born with Down syndrome - 11 years ago.
The couple claimed that they were not offered the opportunity to perform a FISH test - a test that would have afforded early detection of the fetal condition, which would have allowed them to make an informed decision regarding the continuation of the pregnancy before 120 days passed from the date of conception. Furthermore, they claimed that the negligence in this case was particularly serious, given that the clinic was especially for Muslim women, and the staff was aware of the 120-day limit.
The couple also claimed that Prof. Zlotogora was negligent in not asking the woman about her religious beliefs during the genetic counseling, and that he also violated his duty of disclosure by refraining from informing her of the 120-day limit.
On the other hand, the doctors claimed that it is not within the scope of their job to discuss religious views and resulting limitations with their patients. Additionally, they argued that questioning patients about their religious beliefs may even violate their rights for privacy.
Supreme Court Justice Yael Wilner decided to reject the couple's appeal, ruling that the wording of Israeli law indicates that the duty of disclosure for physicians applies only to medical information and does not apply to religious information and the limitations and imperatives of religious belief.
"I believe that this conclusion is also in line with the purpose of the duty of disclosure, given the professional advantage of the physician over the patient and the boundaries of his duties," Wilner wrote. "As mentioned above, the duty of disclosure on the doctors stems, among other things, from the inherent gap in the patient-doctor relationship in everything connected to medical matters. However, in any other matter, including matters of faith and religion, the physician, in his role as a physician, has no advantage over the patient in knowledge and expertise, nor is it his job to advise his patients on matters beyond the medical field. As a general rule, patients turn to a doctor for medical information, to a cleric for religious information, to a psychologist for psychotherapy, and to an accountant for financial advice."
Wilner noted that the woman claimed that since her "Muslim appearance was apparent, if the medical information had been adjusted to her apparent religious limitations, it was possible she would have been able to make an informed decision about continuing or terminating her pregnancy before the 120 days were over."
Wilner rejected this claim, writing, "even for policy reasons, it is difficult to broaden the duty of disclosure tailored to religious characteristics, as the tailoring of medical information to the individual patient's religious character would require increased effort, thought and time, and therefore the costs of disclosure would be greatly increased - costs that will ultimately be imposed on all those in need of medical care."
Furthermore, "asking about matters of faith and religion can violate the patient's privacy and right to religious freedom. For example, asking questions about the religious character of a patient who comes for pregnancy care, can place her in a problematic situation with the doctor, and even against herself. "
"It is possible therefore to add that there are many religions and beliefs, and even within them - there are different currents, opinions and attitudes - as much as the sand on the seashore. Moreover, not everyone who belongs to a certain religion or stream also considers themselves bound by all the rules."
"In view of the above, I believe that it is unworthy for a physician to assume that a woman living in a Muslim neighborhood definitely considers herself obligated to all the imperatives of Islam; that a Jewish patient wearing a kippah (skullcap) is necessarily religious, traditional, haredi, or belongs to a certain Hasidic court - while at times each of these streams holds a different position regarding the pending medical care. Or that a physician will conclude that a woman who comes for medical treatment with a cross around her neck, must obey strict Christian views of forbidding the termination of pregnancy under any circumstances."
Wilner rejected the couple's appeal, stating that the medical staff was not negligent in treating her.