The Medical Liability in Case the Patient Refuses to Implement the Medical

The Medical Liability in Case the Patient Refuses to Implement the Medical Recommendation

Dubai Court of Cassation has confirmed a judicial principle in a recent ruling that it is established – in judiciary of this court- that the doctor’s work is conditional on the fact that what he performs shall be in conformity with the established scientific principles. If he follows these principles, his criminal and civil liability will not be enforced, and it is also decided that proving or denying the doctor’s responsibility and concluding or denying the causal relationship between the error and damage falls within the discretionary authority of the subject court as it has the power to understand the facts of the case and assess the evidence, including the submitted expert reports as long as its judiciary is based on valid reasons with fixed origin in the documents without obligation to reply on the reports and documents contrary to what it considers, as the truth it is convinced has the implicit reply on what is contrary, and when the report of the delegated medical committee is satisfying and considered by the subject court, it needn’t reply independently on the litigants’ deploring on such report because considering the same based on its reasons proves that it did not find in these challenges what deserves a reply more than what is included in the report.

Whereas this, and the first instance judgment supported by the challenged ruling has concluded to denying the fault of the Appellees, and ruled with rejecting the case based on the included reasons that ((…the Court is reassured to the report of the Supreme Committee for Medical Liability delegated by the same regarding the conclusion that the Claimant —– (the Appellant) is 37 years old, in her first pregnancy came to the first hospital and the fetal age was more than 5 weeks with vaginal bleeding, abdominal pain and dizziness.

The patient was examined with a vaginal ultrasound examination which showed the presence of the fetus in the lower part of the uterus and there was no fetal heart beating. She was diagnosed as a possible early miscarriage and she was placed under observation in the hospital for one day and she was discharged from the hospital on folic acid with a clinic appointment in two weeks. The Claimant attended to the hospital for an early pregnancy examination.

She was informed of the existence of a fetus in the eighth week alive and the pregnancy sac stuck in the lower part of uterus arose in the cervix. The patient complained also of blood spots and abdominal pain, and the follow-up appointment within 3 weeks. Then, she was seen again in the early pregnancy examination unit and there were still blood spots with pain in the abdomen. The ultrasound report showed that the gestational sac originated in the cervix and the fetus was alive and at week 11.

The pregnancy was diagnosed outside the uterine cavity in the cervix and the patient was notified of her need to terminate the pregnancy due to its high risk but she decided that she did not have enough money to do so, and she did not want to end the life of the fetus under the pretext that it was alive, so she was discharged from the hospital after she signed on leaving against the doctor’s will and bearing responsibility, and she was advised to return if she had bleeding or pain with a follow-up appointment.

Then, the patient was examined by Dr. —- (the Appellee) in the second hospital (the first Appellee), and she was in the week 17, and the doctor said that everything is normal, and that the fetus’s age is above the range of knowledge of the seriousness of its origin, so it was examined as a normal pregnancy. The patient did not tell her about the first hospital’s diagnosis, and then the patient consulted Dr. —– and the doctor gave her a sonar imaging, which showed that the pregnancy was normal with a healthy fetus corresponding to the age of 17 weeks, so it was reported that the pregnancy was proceeding normally.

Then, the patient was admitted to the second hospital with active vaginal bleeding and abdominal pain, and the clinical examination showed an open cervix and swollen fetal membranes. On the same day she came, the fetus was miscarried and the condition developed into acute post-abortion bleeding. Attempts were made to stop the bleeding surgically, as well as with uterine balloon, blood transfusion began, and her husband was called and agreed to the possibility of uterine artery catheterization or hysterectomy if necessary. She was taken in a critical situation to the operating room to scrape the remnants of pregnancy, and the balloon was inflated into the uterus and transferred to observation and blood transfusion in the intensive care unit, then the patient went home and was in a good general condition. Then, the patient visited the second hospital after that for increased vaginal bleeding, fever and abdominal pain after a strong uterine massage by her mother at home (the traditional practice, she was put on antibiotics,

and clinical and culture examinations of the uterine cavity revealed the presence of Neisseria infection (gonorrhea) with a large blood pool in the uterus and on the left side of the uterus (it appeared on the MRI of the uterine cavity and pelvis), the uterine pool was emptied, but the patient continued to bleed and the temperature level did not improve. The patient informed the medical staff that her pregnancy had been diagnosed as a risk pregnancy arising from the cervix, and she was informed that she might need a hysterectomy if necessary with continued bleeding and unresponsiveness to antibiotics and a pregnancy implanted in the cervix. The patient and her husband agreed to try to empty the uterus with the possibility of hysterectomy, the uterus and the left ovary were removed after the inability to stop the bleeding and wear of tissues as a result of Neisseria infection.

The committee concluded that the patient was diagnosed with an ectopic pregnancy in the cervix in the first hospital and she was notified of the appropriate treatment (which if she had undergone, the situation would have been different), but she was discharged with full responsibility for not agreeing on the treatment, and the patient changed the hospital to the second hospital. She was seen in the eighteenth week of pregnancy, then it was difficult to diagnose a cervical pregnancy at this fetal age, and the patient concealed from the treating doctor in the second hospital all her file in the first hospital, her diagnosis and her previous condition, and the patient was presented with severe bleeding and was treated with appropriate medical methods and discharged in a good medical condition.

After that, she performed a strong uterine massage at home with her mother’s knowledge, after which she presented with another severe bleeding, fever, and radiological evidence of a hematoma in the uterus and pelvis with the presence of Neisseria infection (not by normal bacteria but dangerous bacteria). An attempt was made to empty the blood pool infected with Nisseria, but the patient’s condition deteriorated, so a hysterectomy was performed to save her life, and thus the procedures with which the patient was treated in the second hospital were in accordance with the medical standards, and there was no medical error on the part of the doctors in the second hospital.

Whereas the Court considers the conclusion of the aforementioned report in its final conclusion based on its reasons for their validity, correct evidence, research and works that were the evidence of the committee in the report and they include the adequate reply on the Claimant’s reporting of physical and moral harm because of the fault attributed to the Defendant, especially her contribution in realization of the harm has been proved, represented in her failure to comply with the instructions of the first hospital for the existence of abortion of the fetus, but she continued pregnancy until the eleventh week at the time of the appearance of the fetal heartbeat. This error exceeded any error that may be attributed to the Defendants in the matter of discovering this pregnancy, as long as it was discovered early already from the first hospital, but she refused to implement the medical recommendation regarding her condition under her responsibility and preferred to continue the pregnancy for a period that may be difficult to detect by the Defendants, therefore the elements of liability for compensation vis-à-vis the Defendants diminish, and the Court shall rule in light of the same with rejecting the case)).

The appealed ruling added that ((Whereas the Supreme Committee for Medical Responsibility – delegated by the Court of First Instance – has reviewed all the medical papers, files and technical reports issued by the Dubai Health Authority, and concluded in its report that the (Appellant) patient was treated in the second hospital in accordance with the medical standards, and there was no medical error on the part of the doctors in the second hospital, … and there is no need to delegate a different committee to re-examine the same issue that the committee dealt with in its report, therefore the responsibility of the first Appellee hospital is negated for the absence of error on the part of its subordinates, upon which the Appeal has unsound basis and rejectable)).

This conclusion of the subject court has its justified reasons supported by documents sufficient for the judgment. This may not be affected by saying of the Appellant that the report of the committee is signed by eleven doctors while two doctors only met her ———– and ———–, as there is no obligation in law for the committee to perform its work in a specific way and it is enough to perform its work in the way it deems proper to achieve the purpose of the court, as its work and its report are ultimately subject to its absolute discretion when it is based on justifiable reasons. It is not affected as well by the appealed ruling statement that the committee’s report may not be challenged as what is mentioned in this regard was nothing but excessive digression by the judgment and it is not affected by the same. Therefore, deploring these extra reasons is not productive and the whole deploring is nothing more than an objective argument in what the subject court is independently authorized to estimate from the case pieces of evidence and this does not fall under the cassation court control, therefore it is not acceptable.

Mohamed Mahmoud Al Marzooqi law firm

Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE