Dependency Relationship between the Physician and the Employing Hospital
/ / Dependency Relationship between the Physician and the Hospital
Medical Liability Act

Dependency Relationship between the Physician and the Hospital

Dependency Relationship between the Physician and the Hospital

 

The Dependency Relationship between the Physician and the Employing Hospital

 

Abu Dhabi Court of Appeal confirmed in a recent ruling that it is established that the Court of Subject has full authority to understand the case facts and to estimate its pieces of evidence- including the expert reports- and considering what it finds reassuring as long as it established its judiciary upon valid reasons originated from documents. Whereas this and the appealed judgment rule with abiding the physician,

the Second Appellee, jointly with the Appellant to pay the ruled with compensation, based on the report of the Supreme Committee for Medical Liability that during the operation performed on the patient “there were complications represented in blockage of several cerebral arteries on both sides as a result of the failure of the clamp used to connect the arteries. The device used to draw and retrieve it was not available and (the physician) tried to put a stent and the patient began to show signs of high pressure inside the brain with dilated pupils and loss of consciousness.

The neurosurgeons were informed directly, given that they were not informed before, means before the intervention was performed. The patient was transferred to the operation room after several hours to perform a bone plate removal operation from the cranium (the bones of the skull) to relieve the pressure inside the brain. The complication led to severe brain damage resulted in blockage of the arteries and large clots on both sides of the brain.

The Committee concluded that the Physician ———- made a medical mistake and negligent in treating the patient and he did not follow the recognized medical principles which led to the child’s encephalopathy ——– and his entry into the state of coma.

The Supreme Committee for Medical Liability acknowledged clearly that the physician committed many mistakes when performing the surgery and he did not take the necessary precautions required by the medical principles, which led to the occurrence of complications indicated in the report and the patient’s entry into a coma which may be impossible or difficult to recover from. The Appellant did not submit what weakens the conclusions issued by a specialized technical committee relied in its work on the patient’s condition diagnosis and on an accurate description of the condition of his health status after performing the surgery which resulted in the mistakes made by the physician and his actions during and after the operation that were not in conformity with the medical principles that must be followed in such cases. The Committee revealed the causal relationship between these errors and the harms resulted to the patient.

Therefore, the conclusion of the appealed ruling that he is liable for these harms and his abiding, jointly with the Appellant, by paying the ruled with compensation was justified and based on fixed documents, accordingly the deploring was unfounded.               

It also affirmed that it is established that the liability of the principal for the acts of the subordinate is based on the provision of Act 313/b of the Civil Transaction law on the actual authority element and that authority shall focus on supervision and direction and the subordinate commits the error while performing his job or because of the same. It is also established that it is sufficient for the availability of supervision and direction element that the principal has the effective authority to issue orders and directives in his work, even if a general directive, means that it is not necessary for the principal to be able to supervise technically, it is sufficient for him to supervise and direct administratively.

Therefore, there is a dependency relationship between the physician and the hospital where he works. Whereas this and the court has heard the Appellant’s defense and ruled with rejecting the same based on its judgment that “It is permissible to file a guarantee case directly against the principal according to Article 313, civil transactions, as the entity with authority over the subordinate in supervision and direction even if not free to choose, in case the harmful act is caused by the subordinate while performing his job or because of the same.

Since there is no dispute that the second Appellee works in the hospital of the Appellant and under its supervision and direction and it is responsible for providing the necessary supplies to its physicians so that they can perform their duties as required, and the harms claimed to be compensated occurred during the physician’s performance of his duties in the principal’s hospital- the Appellant- therefore it shall be responsible for every defect or deficiency occurs to the equipment or any mistake committed by its subordinate while performing his duties. It is obliged in its capacity for compensation based on the liability of the subordinate towards the principal determined by the provisions of Article 313 referred to.

Whereas the appealed judgment has ruled with abiding the same, jointly with the second Appellee, by compensating against the errors committed by its subordinate, this ruling is correct and has a fixed origin in documents, and it does not violate the law, and deploring the same is unfounded.

It is established as well that the material damage is a breach of the financial interest of the aggrieved party, and it includes everything impoverishes his patrimony, estimated in proportion to the harm and missed earning of the aggrieved party. The estimation of the guarantee is under authority of the Court of Subject, unless there is a provision in law or agreement abides the same by following certain criteria when the elements of harm are evidenced and its judgment is justified and based on a fixed origin in documents. Whereas this and the appealed ruling has indicated, in its reasons,

the harms affected the aggrieved party, resulted by the medical fault of the second Appellee, indicated in the report of the Supreme Committee for Medical Liability, upon which the aggrieved party, a young man in his early life, has become in a comatose state from which there is no hope for recovery, according to what the physicians have confirmed. Whereas this state requires constant attention from his appealed parents and expenses of his care, this would constitute a heavy burden deserves compensation. In addition, his survival requires his parents to provide constant care and this will hinder them from pursuing their interests and work in normal circumstances.

Whereas the Court has explained these elements in its judgment and explained their reasons and effects on the Appellants, and correctly concluded their entitlement for the ruled with compensation. Its conclusion in this regard is justified under the documents and the report issued by the Supreme Committee for Medical Liability in which the patient’s condition is diagnosed and the state of his health after the operation performed. These elements are enough to rule for the compensation ruled with, therefore deploring the appealed ruling is unfounded.

It concluded as well that the provision of Article 2/293 of the Civil Transaction law states that “It shall be permissible for an order to be made by way of compensation for moral damage caused to a spouse or relatives of the family, by reason of the death of the injured”. This indicates- according to the judiciary of this Court- that the legislator, after deciding the principle of compensation against moral harm, it revealed who is entitled to claim; the injured and whoever morally affected because of the death of the injured, such as spouses and relatives. Accordingly, if the injured person is still alive they do not deserve compensation for the moral harm because of his injury.

Whereas this and it is established in documents and the report of the Supreme Committee for Medical Liability that the aggrieved party, although affected with serious harms because of the surgical operation and became in a coma, this did not lead to his death and he is still alive. This is not affected by the deploring of the Appellants that the condition of their son caused them grief and anguish and forced them to neglect the rest of their children to provide him the necessary care,

considering that the elements of moral harm are available at their side and there is no justification for depriving them of the same, but assuming that this situation has caused harm to them, it is not permissible for them to request compensation against the moral harm as the aggrieved party is still alive, this is in implementation of the provisions of Article 2/293 aforementioned. Therefore, the appealed ruling has applied the right law when it has cancelled the moral compensation for the parents, ruled by the first degree judgment, and deploring the same is unfounded.                     

 

Mohamed Mahmoud Al Marzooqi law firm

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

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