This case raises the question of the professional liability of doctors and hospitals (Medical Liability) and touches the issue of medical jurisprudence as a whole.
Theoretically, the essence of medical jurisprudence is to create good/better sociological interaction between medical practitioners and the general society, an ingredient of modern civil society.
The developments in medical jurisprudence:
The origin of medical jurisprudence is derived from the Oath of Hippocrates (lived in the 6th Century) which was dedicated to medical excellence and was a code of conduct for medical doctors when dealing with the sick. Today's dynamism in society and culture and the enhancement of modern sociological values led to the Oath being replaced with Geneva Declaration of 1948.
The Geneva Declaration, widely used today to replace the Oath, reads thus:-
"I solemnly pledge my self to consecrate my life to the service of humanity.
I will give to my teachers the respect and gratitude which is their due. I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets, which are confided in me, even after the patient has died.
My colleagues will be my brothers.
I will not permit consideration of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will maintain the utmost respect for human life from the time of conception, even under threat.
I will not use my medical knowledge contrary to the law of humanity. I will maintain by all means in my power the honor and the noble traditions of the medical profession.
I make these promises solemnly, freely and upon my honour."
This Oath along with its amendment in 1968 is referred to as the PHYSICIAN'S OATH and the mainstream idea is that a doctor should consecrate his life to the service of humanity.
The desire to preserve the life of the patient as well as to seek the patient's general welfare and well-being led to an explosion in medical research and made more guidelines necessary. This led to the Helsinki Declaration of 1964. This declaration contained basic principles for research. Emphasis was placed on clinical research coupled with professional care; a major ingredient here is the consent of the patient or the guardian/next of kin.
A number of efforts to uphold the highest legal moral standards include:-
a. The Sydney declaration of 1968.
b. The Oslo declaration of 1970.
c. The Tokyo declaration of 1975.
In many developed countries around the world, the extent of responsibilities as well as liabilities of medical professionals are carefully spelt out in legislation as well as in policies of individual institutions.
In the UAE, unfortunately, there is no definite legislation governing medical liability nor a special regulating insurance against medical malpractice. Such issues are usually dealt with in the UAE courts by applying the general principles of tortious liability and insurance embodied in the Law of Civil Transactions (Federal law No. 5 of 1985 and its amendments of 1987).
Definitions:
Medical malpractice is a broad term which covers both the public perception of adverse events during medical care, and a legal definition of negligence.
Negligence is conduct which deviates from a standard of care required by law for the protection of persons from harm. Negligence may result from the performance of an act or the failure to act. The determination of whether a defendant was negligent requires a comparison of the defendant's conduct against a standard of care. If the defendant's conduct is found to have fallen below an accepted standard of care, then he or she was negligent.
Professional negligence is defined as the failure of a medical practitioner to exercise a reasonable degree of skill and care in the treatment of a patient. It may be civil or criminal.
Criminal negligence is restricted to situations in which the degree of negligence is so profound that death or grave disability is the end result.
Civil negligence includes instances like:-
1. Careless retention of an operating instrument inside the patient's abdomen or body.
2. Application of the wrong treatment as a result of the failure of a medical practitioner to take due or proper care.
3. Failure of a doctor to follow-up or a patient to whom professional responsibility has been created.
The most common legal definition of standard of care is how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. This is not simply what the majority of practitioners would have done. The courts recognize the respectable minority rule. This rule allows the practitioner to show that although the course of therapy followed was not the same as other practitioners would have followed, it is one that is accepted by a respectable minority of practitioners. (Respectable is used in both senses).
In most medical malpractice cases, both the standard of care and its breach are established through the testimony of expert witnesses. The medical malpractice plaintiff must establish the appropriate standard of care. In theory, establishing the standard of care and establishing the breach of that standard are legally separate. In reality, unless there is a factual question about what the defendant did, the proof of the standard of care also proves the defendant's breach. For example, assume that the defendant admits that he did not counsel the patient about prenatal testing. If the patient can establish that the standard of care was to offer this testing, the defendant breached the standard. If, however, the physician claims to have done the counselling, the patient will have to prove both that counseling was the standard of care and that the physician did not do the counselling.
Requirements:
In common with other forms of civil claims for negligence, in order to succeed in a claim, the claimant must successfully demonstrate two things:-
1. That the doctor failed in his/her duty of care towards the patient - basically this means that they may have failed to do something that a reasonable person in similar circumstances would have done or did something that a reasonable person would not have done.
2. That some harm followed from this failure. Experts are usually used to consider the care - these are generally independent experts from the same field of medicine. The general idea is that a doctor will not be expected to be the best doctor in the country, but he or she must be shown to have acted in accordance with a reasonable body of medical opinion. This is known as the Bolam Test.
In the common law jurisdictions, there are situations in which the plaintiff may be able to establish the standard of care and breach without an expert witness:
Res Ipsa Loquitur:
"Res ipsa loquitur" means, roughly, "the thing speaks for itself." The Courts in the common law countries developed the concept of 'res ipsa loquitur' to deal with cases in which the actual negligent act can not be proved, but it is clear that the injury was caused by negligence. This doctrine was first recognized in the case of a man who was struck and severely injured by a barrel that rolled out of the second storey window of a warehouse. In the trial of the case, the defence attorney argued that the plaintiff did not know what events preceded the barrel rolling out of the window and thus could not prove that a warehouse employee was negligent.
The plaintiff's attorney countered that barrels do not normally roll out of warehouse windows. The mere fact that a barrel fell from the window was 'res ipsa loquitur'; "it spoke for itself," and it said that someone must have been negligent.
In medical negligence cases, 'res ipsa loquitur' can be invoked only when:-
(1) The patient suffers an injury that is not an expected complication of medical care;
(2) The injury does not normally occur unless someone has been negligent;
(3) The defendant was responsible for the patient's well-being at the time of the injury.
The strategic value of a 'res ipsa loquitur' claim is that it does not require an expert to testify as to the proper standard of care. Many countries have limited the use of 'res ipsa loquitur' in medical malpractice litigation, usually to claims such as a surgeon leaving a foreign body in the patient or operating on the wrong patient. In the UAE, the situation is doubtful as most of the cases, if not all of them, are usually referred to medical experts to determine the proper standard of care and to find out whether the defendant had acted negligently or not.
Negligence Per Se:
Negligence per se lawsuits are brought by private plaintiffs but are based on the defendant's violation of a law. In these cases the appropriate standard of care is defined by the law that was violated. For the court to accept a negligence per se claim, the plaintiff must show that a law was violated, that the law was intended to prevent the type of injury that occurred, and that the plaintiff was in the class of persons intended to be protected by the law. The plaintiff may claim negligence per se even if the defendant has not been convicted or administratively sanctioned under the law in question. In such cases, the plaintiff must prove that the defendant has violated the law. The plaintiff does not need to prove independently the violation if the defendant has been convicted or had pleaded guilty.
Traffic violations are the most common instance of negligence per se. Assume that a driver hits a child while driving at night without headlights. This behaviour is illegal, it is prohibited to prevent this type of accident, and the plaintiff is in the class of persons who were intended to be protected. The driver could be found negligent based on the violation of the statute. Conversely, assume that a physician injures a patient while practising without a current medical licence. This will not support a negligence per se claim because medical licencing laws are not intended to protect specific patients from medical malpractice.
Negligence per se claims are a threat to physicians who disregard laws intended to protect patients, such as the laws requiring physicians to provide emergency care. Since these laws make it illegal to deny a person necessary emergency medical care, a person refused emergency care suffers the injury the law was intended to prevent. Negligence per se claims also could be brought against physicians who do not obey disease control regulations and laws requiring the reporting of dangerous individuals.
Medical Malpractice Statutes:-
In any country, lawyers usually consult the local statutes for restrictions that apply to actions against health care providers. Many countries have enacted special medical malpractice statutes as a response to what some contend is another "medical malpractice crisis," said to have been brought about by an increase in the number of medical malpractice actions, substantial court awards and a resulting increase in liability insurance rates for health care providers.
There are several types of statutes. Some require arbitration; most create a special panel to screen claims (a few combine both to form a hybrid arbitration panel), and some place a limit on the amount the patient may recover. In the UAE, the Health and Judicial authorities have failed to reach agreement on a planned draft law governing medical accountability. The draft law submitted by the Ministry of Health on medical accountability has been put on hold. The Ministry of Justice rejected the articles of the law which are incompatible with the Islamic Sharia and the Constitution. The first major differences arose over who will have the authority to specify the compensation when medical errors are made. The second dialectical point was over the compensation amount and its maximum limit.
So far, the UAE Courts apply the provisions of the Civil Transactions Law to the medical malpractice cases and perform their discretionary power to determine the compensation to be recovered by the injured persons. The concerned authorities are expected to reach agreement on the draft law on medical accountability soon in order to govern the issues related to medical
liability in the country.
Hussain Abdul Ghaffar
© Al Tamimi & Company 2005
