LEGAL RESPONSIBILITY REGARDING MEDICAL MISTAKES

What is meant here by medical mistake is a deviation by the medical practitioner (doctor, surgeon, anesthetist, nurse, medical lab or certified midwife, or others) of the normal behavior and to be accountable of this deviation which incurred damage. Accountability regarding the incurred damage means medical responsibility. This responsibility, which could originate from the "medical contract" or a medical responsibility, is determined by the texts of the law.

Whatever was the kind of responsibility, the degree of punishment of the person having caused the damage is decided according to the extent of the mistake and the extent of the damage. The criminal responsibility, whose punishment is detailed in the criminal law, could concur with the civil responsibility, whose punishment is a compensation of the damage (physical damage, financial damage, moral damage), together with the responsibilities provided for in the special texts regarding administrative or professional actions such as the punishments consisting of warnings or disciplinary actions (warning, lay out, etc.). Nothing prevents the cumulating of these responsibilities in case of a medical mistake, because all of them have to do with legal responsibility and are decided according to the texts of the law. In some cases, only the legal disciplinary responsibility or the civil responsibility is taken into consideration according to the extent of damage incurred.

Responsibility regarding medical mistakes is known since the most ancient legislation. It was known in the ancient Iraqi legislation: it has been organized by the legislation of Hamurabi. The Roman law knew it. And it was detailed in the various Islamic legislation and schools. It is now well known and clarified in the current laws.

The Prophet Mohammed said: "He who seeks medicine without knowing medicine is responsible for the damage incurred". The late Imam Abu Hanifa even allowed the sequestration of the ignorant doctor or medical practitioner and prevented him from practicing medicine in order to protect people's lives and their bodies against any damage.

In the modern era, a new branch of law appeared "The Medical Law". Some countries have even adopted the principle of insurance against non-intentional medical mistakes committed by medical practitioners. We called more than once for this kind of insurance in the Arab world in order to protect the contracted people. Insurance companies in these countries should lay down the foundations of this kind of insurance in accordance with the Islamic Share's and with the modern laws.

There is no doubt that the type of medical practices decides the kind of commitment on behalf of the medical practitioner. Some of them if they are not thoroughly completed by the medical practitioner and reaches a complete result is considered as a failure to stick to his commitment. This means that he committed a medical mistake and that he is responsible for the damage incurred unless there is a proof of a case of force majeure. For example, the medical lab, the circumcision, needle shooting according the correct standards, tooth removal, etc. Other types of medical practices require a minimum of attention and medical effort recognized by the profession; this is called a commitment to give attention or to use whatever means available. Here, the person having suffered a damage has to prove the existence of a damage, because it is him who claims the existence of such a damage; the responsible for the said damage could then use the argument of force majeure.

Forms of Medical mistake

The deviation of the medical practitioner could result from a positive act, such as the injection by an anesthetist of a dose of drug that could not been supported by the patient, thus leading to a coma and death. It could also result from non-respect of the medical secrecy. It could also result from a negative act, such as negligence and refusal to treat the patient or inattention.

Whatever kind the deviation is, the forms of medical mistakes could be summarized as follows.

1.       Non implementation of the medical ethics.

2.       Delay in the implementation of the medical ethics, such as the complications in case of appendicitis because of a delay in treatment or in diagnosis.

3.       The faulty implementation of the medical ethics, such as forgetting a piece of tissue or cotton inside the patient's body.

4.       The partial implementation of the medical ethics, such as conducting a surgery without the supervision of an anesthetist during the recovery after the surgery.

The medical practitioner (surgeon, anesthetist, nurse,…) could not been directly responsible for the mistake. The institution in which they work could bear this responsibility of the committed error, and this is called "the responsibility of the body in charge", i.e., the hospital (public or private) or the medical lab are responsible for compensating the damage incurred.

Types of medical damage

There are several types of medical damage:

1.       The physical damage stemming from a medical mistake. It could be a damage affecting the human soul (lethal physical damage), which is the most severe one, or it could be a non-lethal damage, which affects the patient's, body by a permanent or temporary physical disability.

2.       The financial damage. It is a damage affecting the body financially. It is assessed according to the degree of financial loss incurred and the lack of gain caused by inability to work because of an injury.

3.       The moral damage: This is a damage affecting one of the basic rights of the patient or his interests. It includes pains, sufferings and every thing that could affect him, except death, or the rights of those who are affected by his death.

Damages are not only what are in stakes in a faulty medical action (surgeon, nurse, hospital). The patient could incur a damage while the responsibility could be determined in another direction. For example, the damage could be the result of incorrect indications given by a pharmacist regarding the use of a drug, or that the damage is incurred by the patient himself through the non-commitment or non implementation of the correct medical indications.

By:  Dr. Munther Al-Fadhal

       Associate  Professor of civil law

        E-mail: alfadhal@hotmail.com