Responsibility of the Physician in the Medical Malpractice cases – The Legal Perspective In UAE
Responsibility of the Physician in the Medical Malpractice cases – The Legal Perspective In UAE
Abu Dhabi Court of Appeal confirmed, in a recent ruling, that the physician does not guarantee what he misses unless he is ignorant or negligent. His responsibility is confirmed if it is proved that he did not perform his surgical work with the skill required for his profession, or he performed his work negligently and without precaution.
This work is based on risk because what is produced may not be achieved at the time of treatment. The basic principle is that it is permissible… and it is the duty of the physician. The rule is (the duty does not abide by the safety condition) as the physician’s obligation is to provide the necessary care, not to achieve the result.
Ibn Jazi Al-Maliki says in Al Qawanin Al- Fiqhiyyah, page 329 (similarly, a physician gives a drink to a patient or cauterizes him and the patient dies, the veterinarian discharge the animal and it dies, the cupper circumcises the child or removes the molar and the person dies; no guarantee is required from them because this is a risk. This, if he does not make a mistake but if he makes a mistake, he shall pay the blood money- and if he is a professional, he will not be punished for his mistake).
According to the Maliki Jurisprudence, the blood money is an original punishment and the blood money is obligatory for the fetus, which is known as (Al Gurrah), estimated as half a tenth of the full blood money in case of the still birth of the fetus. The judgment does not require the litigant’s request and the court is obligated to rule with this blood money. In case the fetus is born alive and then dies, the blood money for the male fetus is the blood money for the male adult,
and the blood money for the female fetus is the blood money for the female adult, if it is proved that the fetus was born alive or Al Gurrah if it is proved that the fetus was born dead. The various commentaries of Khalil can be reviewed when he said (or Gurrah) and Hashiyat Al Dusuqi Ala Al Sharh Al Kabir 4- 268 and Al Zarqani and Hashiyat Al Banani, vol. 8, page 31 and 32.
Article 14/1 of the Federal Law No. 10/2008 regarding medical liability stipulates that (1- The medical error is due to ignorance of technical matters assumed to be known for everyone practices the profession, or not giving the required care). Articles 15 and 16 of the same law show how the Supreme Committee for Medical Liability is formed, its functions and jurisdiction- and it is the reference for what is agreed or disagreed upon regarding a medical opinion in any incident.
It is proven from the documents of the appealed ruling that the autopsy report prepared by the Director of Forensic Medicine Dr. …………….., that the child and the victim suffered abrasive injuries according to what mentioned in the above-mentioned report, and this led to death and it is a suspected crime / medical liability.
She also expressed her opinion in the report of the medical committee formed under her presidency that the committee considers that this is an event of negligence and professional and technical medical errors. The physician who performed the delivery operation had made a mistake and the on duty consultant and the physician are to blame..
until the end of the report. A member of the committee, Dr. Andrew, said that there are a number of errors, none of which can be proven. The various failures of the management may have resulted in mistakes in the hospital system or the joint departments, rather than the individual failures. Dr. Salima Dani, a member of the committee, stated in the same report that some corrective procedures had to be taken and there are shortcomings in the hospital system not the individuals,
for determining the party responsible for the error. The child did not have any signs at birth, such as panting and there was no error or negligence by the specialist who performed the delivery nor her assistant, but there is a misconduct or ignorance of how to deal with such fetuses despite the effort to try to save the fetuses. It is evident from the opinions of the members of the medical committee that they did not agree on one opinion to attribute the error to the perpetrator.
The child died and the injuries are indisputable and whether she died in her mother’s womb or outside- as each case has a blood money if the act is attributed to the perpetrator. In this case, it is a technical work to be decided by a specialized expert authority and the court may not replace the expert in such a case, and the decision shall be taken according to the law number 10/2008 aforementioned.
Mohamed Mahmoud Al Marzooqi law firm
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE
