Description of the case
On 25 August 1998, a resident of Beit Ula, Hebron District, went into labor. She and members of her family rushed to hospital in Hebron. When they reached the Beit Kahal checkpoint, soldiers stopped them and refused to let them cross, claiming that a closure was in force. The soldiers shined a flashlight on the expectant mother, who was sitting in the back seat, and determined that the contention that she was in labor was baseless, and ordered the car to leave the checkpoint. The entreaties of her relatives to get the soldiers to change their mind were to no avail, and they had to make their way via a long bypass road to reach the hospital, which was only a ten-minute drive from the checkpoint.
While the car was driving along the bypass road on its way to the hospital, the woman began to give birth. The bleeding was severe. To stem the bleeding, and lacking medicines to alleviate the pain, bandages, disinfectant, and warm water, her mother-in-law used pieces of cloth that she tore from their clothes. The baby girl was born in serious condition with birth defects. As they continued on the way to the hospital, the condition of the newborn deteriorated, her crying weakened, and her movement indicated she was in distress. About thirty minutes later, they reached the hospital. A short while later the infant was pronounced dead.
On 28 August 1998, the mother filed a complaint with the Israel Police Force regarding the soldiers’ conduct. Her statement, and those of her brother-in-law, and her mother-in-law were taken the same day. On 8 February 1999, the judge advocate for the Central Command informed HaMoked that he had ordered the investigation file to be closed and that no measures would be taken against any of the soldiers involved. He contended that the soldiers at the checkpoint exercised their discretion and made the decision after they got the impression that the family’s contention was not sincere.
Legal action taken following the incident
Following the incident, Physicians for Human Rights petitioned, on 26 October 1999, the High Court of Justice against the refusal of the Judge Advocate General to prosecute the soldiers at the checkpoint and the officers who were in charge in that case and in another case, in which a newborn died after soldiers at another checkpoint delayed the infant’s arrival at the hospital. The petitioner also demanded an investigation and prosecution of the officers who did not instruct the soldiers at the checkpoints regarding the special procedures applying in such cases. The military had made a commitment, in the course of an earlier petition to the High Court of Justice in a similar matter (HCJ 3109/96), to disseminate these procedures. According to the procedures, soldiers at checkpoints are to allow, as a rule, persons to cross a checkpoint during closure in cases of urgent medical emergency (it was held that a woman in labor is considered an urgent medical emergency). Discretion in determining if the case is an urgent medical emergency lies with the checkpoint commander, who is supposed to consult, time permitting, with a medical official. The procedures also provide that, in the case of doubt whether an emergency exists, the doubt is to be resolved in favor of the individual wanting to cross the checkpoint.
In practice, different directives were given to soldiers stationed at checkpoints. The requirements of consulting with a medical official and of resolving doubt in favor of the person wanting to cross were deleted.
On 3 July 2000, the High Court of Justice held that the Judge Advocate General’s decision not to prosecute the soldiers, on grounds that they had acted within their discretion, was not unreasonable. The High Court held that the fact that the procedures agreed-upon in the earlier petition were not disseminated to the soldiers at checkpoints was a malfunction, but the Court chose not to intervene because the matter was still under investigation by the State Attorney’s Office.
On 29 December 2003, HaMoked filed a compensatory claim, in the Jerusalem Magistrate’s Court, on behalf of the mother against the soldiers at the checkpoint and against the State of Israel. The statement of claim seeks compensation for the pain and suffering that the mother and her deceased daughter suffered as a result of the soldiers’ refusal to allow them to get to the hospital to receive medical treatment during the course of delivery. The complaint also seeks compensation for the harm to the plaintiff’s dignity, in that she was entitled to medical treatment, and for medical expenses. The complaint argues that everyone has the right to receive medical treatment in emergencies, which includes the right of an expectant mother and her infant to receive medical treatment during childbirth. This right is enshrined in the Basic Law: Human Dignity and Liberty, the Patients Rights Law, and in international conventions to which Israel is party. The complaint states that the state was negligent in its dissemination of the procedures regarding the handling of emergency medical cases by soldiers at checkpoints, even though the state knew that the purpose of the procedures was to enable the provision of medical treatment during childbirth, the lack of which would likely cause irreversible injury to the mother and the newborn infant.
Following settlement negotiations between the State Attorney’s Office and HaMoked, the claim was settled on 23 September 2004. A consent agreement was filed with the court, pursuant to which the state will compensate the mother in the amount of NIS 40,000.