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Physician’s Liability on Medical Malpractice

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Under the power of courts and jurisdiction, it is established that the physician is liable for his malpractice of whatever type, whether it is a technical or material mistake, causing a severe or minor damage. The judge should confirm the existence of such error and has sufficient proof thereof, based on an expert’s opinion. The physician should be liable for every error in the medical practice that would not have occurred by a professionally aware physician under the same external circumstances that surrounded the defaulting physician. He shall be accountable of any normal fault of whatever level. For example, the failure to transport the patient to the competent medical department on time constitutes a severe error that renders the physician accountable. He would also bear the liability of injecting the patient with an anesthetic without checking the bottle and verifying that it is the required anesthetic. The jurisdiction established that it is conditional to have a severe error to make the physician responsible for his act; however, it is sufficient to have a realized and recognized error. Medical errors are classified as omission, inconsideration and carelessness.

 First: Omission

For example, the surgeon leaves a bandage that he has used during a surgical operation in the child’s abdomen, due to his failure in taking necessary precaution to avoid leaving the bandage in the patient’s abdomen, and other similar examples.

Second: Inconsideration

For example, the surgeon makes an operation in the right thigh instead of the left thigh. If he considered reviewing the patient’s file, he would have known which thigh needed the surgery and would have avoided such error. Similarly, the patient’s skin was burnt due to an electric contact caused by the electric wires connected to the operation table due to the nurse’s fault. In this case, the liability shall also cover the hospital’s manager and surgeon, considering that the task of supervising, maintaining and restoring the hospital’s devices is the liability of the hospital and the failure to satisfy such liability is considered a defect.

 Third: Carelessness

For example, the surgeon risks performing a serious and unnecessary operation, while he could have limited the operation to the removal of part of the tonsil only in case of treating a disease in a lady’s throat. He had performed an unnecessary serious operation in a place where the least wrong movement may cause the death of the patient. Many other examples on this case also exist.

 Criminal liability of physician for any error, even if minor,

The physician’s liability is classified into two parts:

* Error in medical practice

It refers to the failure of those practicing the profession in satisfying the liabilities of their profession, such as the surgeon’s neglect to the principles of surgery. The liability of this error is considered as a contractual liability in case a contract was concluded between the physician and the affected person. In case of the absence of such contract, it shall be considered as a tort, even if some provisions consider the physician’s liability as a tort in all cases.

 * Intentional Fault and Fault due to Omission

It is the failure to comply with an associated legal liability for the purpose of causing damage to other person and it is called a “civil crime”. It contains an act or a failure to act in violation of a legal liability. Such failure should be accompanied with the intention to damage others, i.e. the willingness to cause the damage and not only to do the action without making sure the damage occurs.

 * Fault due to omission

It is known as a semi-civil crime and defined as the failure to comply with a legal liability, while the perpetrator is aware of such failure and the occurrence of this fault due to his omission.

 * Physician’s liability for errors

The physician’s business is permitted when it complies with the specified practical standards. If the physician fails to comply with these standards or commits a violation thereof, he shall be then subject to the criminal liability arising from the intentionally committed act, its result, error and failure to perform the required job. During the practice of the profession, the physician performs certain technical works that are closely related to his profession and other normal works that have no relation to the medical profession. He should then consider the technical nature of his work according to the measure of the physician’s behavior. This means that the standard for estimating the physician’s error differs according to the nature of work in which the failure occurs, considering that when the degree of due care that should be taken is established, any failure to take the due care at whatever level, it is considered as an error that incur liability on the failure.

(Sanhuri Chapter 428, Page 739)

 In order to know whether the defaulting party has satisfied all its liabilities, the level of care he adopted shall be compared with the level of care undertaken by a normal person, unless stipulated otherwise by the law or the contract, article 290 of the Civil Kuwaiti Penal.

 In regard to the normal work of the physician, he is required to perform his duties as any other normal person. This means, his conduct should be careful and diligent and he should take all care that is taken by a normal individual. As for the technical work of the physician, the estimation of error is subject to the standard of professional mistake and the measurement of the professional behavior of the perpetuator of the error is the customary technical behavior of a person performing the same job and has the same efficiency and awareness. Whenever the professional person is compliant to take all due care, this standard will be adopted whether he is subject to a contractual liability or a tort.

(Al-Sanhuri Chapter 548 Page 931)

 Such person should not commit any violation to the principles of the profession and any such breach is considered an error.

 (Previous reference Page 933/934)

 Nevertheless, the physician is considered in default if his belief in choosing the treatment method is unjustified or he has failed to take the due care in performing a disputed method. Therefore, upon the estimation of the physician’s error, it should be considered the level of practice, whether he is a general physician or a specialized physician, as well as his major.

The doctor should be, as described by jurists, very clever and gives the profession all due care in diagnosis and therapy. Thus, in case of willingly committing any act that is not usually performed, he shall be accountable.

(Muhammad Ali Al-Najar – On Physicians’ Liability – Al-Azhar Magazine – Volume 20 Year 1368 AH – Page 51, included in Dr. Ahmad Sharaf Al-Din’ publication, Physician’s Liability – Issue 1986).

 Deviation from average physician’s customary act is not realized only by violating the adopted principles of medical profession, but also by the failure to take the due care during his practice in order not to cause any damage to the patient. This is confirmed by article No. (13) of law No. 25/1981 on the practice of the medical profession. It reads: “The doctor is not liable for the patient’s condition if it is established that he has taken all due care and used all methods possible under the circumstances to diagnose and treat the patient. However, the doctor shall be liable in the two following cases:

  1. If he commits an error as a result of ignorance in technical issues that all doctors should be aware of, whether in regard to diagnosis or prescribing the appropriate treatment, and such error caused damage to the patient.
  2. If he performs unapproved experiences or scientific research on patients, causing damage to them.

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