In all cases of tort, damages are assessed on the basis of the loss which the aggrieved party has incurred and any gain they have foregone as a direct consequence of the tort. The court may be satisfied as to the quantum of damages merely based on the papers submitted before the court.
Facts
The Respondent filed Civil Action No. 497-2006 against the Appellant Hospital before the Dubai Court of First Instance claiming damages for physical, psychological and material damages.
On 26.04.05 the Respondent had undergone total left hip joint replacement surgery at the Appellant Hospital. Two months after surgery the Respondent suffered a dislocated left hip which was corrected under general anesthetic. Less than five weeks later the Respondent suffered a graft dislocation in the same hip. The Respondent then went to the Hospital and had the dislocation corrected under general anesthetic.
After suffering a further dislocation six weeks later she underwent surgery at the Hospital in July 2005 to prevent a joint dysfunction in the left hip. However, following that surgery the Respondent again suffered a dislocation in the left hip on 24.09.05.
The Respondent proceeded to file a complaint with the Department of Health & Medical Services. The Examining Committee at that Department confirmed technical error on the part of the Appellant Hospital surgeon who had performed the operations on Respondent.
The Respondent then underwent successful surgery to replace her right hip joint at the Dubai Bone & Joint Centre. The result of the surgery at the Dubai Bone & Joint Centre was successful in contrast to the surgery that the Respondent underwent at Appellant Hospital, which caused her psychological, physical and material damage.
The Court of First Instance appointed a consultant orthopedic and trauma surgeon from Rashid Hospital. After receiving his report, the Court ordered on 09.10.07 that the Appellant Hospital pay the Respondent a sum of AED 200,000.
Appeal to Court of Appeal
The Appellant Hospital appealed in Civil Appeal No. 712-2007 seeking reversal of the lower Court's decision and dismissal of the action and, alternatively, dismissal of all claims in excess of AED 30,000.
The Respondent also appealed in Civil Appeal No. 730-2007 seeking to have the lower Court's decision amended to reflect the full amount of her claim.
On 13.12.07 the Court of Appeal joined the appeals and dismissed the Appellant Hospital's appeal, and allowed the Respondent's appeal and amended the award of damages to AED 250,000.
Appeal to the Court of Cassation
The Hospital filed an appeal to the Court of Cassation on 07.02.08 seeking a reversal of the decision of the Court of Appeal.
Decision
The Court decided to dismiss the appeal.
The Appellant Hospital was ordered to pay costs and AED 2,000 advocate's fees.
Commentary
A doctor's duty of care extends to the honest exercise of his best skill to cure a patient. It is not a duty to achieve a guaranteed end result or a guaranteed successful operation.
A doctor's duty is to use the degree of care and skill that is expected of the average qualified practitioner under similar circumstances taking into account the customary standards of the profession and accepted scientific principles to the exclusion of matters on which professional opinions may vary among practitioners in the field.
Failure to follow the standard of care constitutes error for which the practitioner is liable to the injured patient for damages and the lost opportunity for treatment. For a claim to be accepted as medical error there must be a causal link between the treatment and the injury. The question of whether or not an error exists that would give rise to the liability of the medical practitioner is a matter within the discretion of the trial court.
Article 292 of the Civil Transactions Code (Federal Law No. 5 of 1985, as amended by Federal Law No. 1 of 1987) states that: "In all cases, damages are to be assessed on the basis of the damage the aggrieved party has incurred and the gain he has foregone as a direct consequence of the tort."Accordingly, in all cases, tort liability is to be assessed on the basis of the damage and loss the aggrieved party has incurred and any gain he has foregone as a direct consequence of the tort. An aggrieved party who makes out a claim of entitlement to recover loss due to the cost of treatment required as a result of the error being imputed to the tort feasor will be granted recovery for his pecuniary loss on the evidence and documents before the Court.
Assessing compensation for moral damages is a question of fact to be determined by the trial court from the facts and circumstances of the case in the absence of specific guidelines in the law for making such assessment.
By Djalila Behaz Litigation Department
© Al Tamimi & Company 2008
