The Hospital Liability in Medical Malpractice Cases
The Hospital Liability in Medical Malpractice Cases
Abu Dhabi Court of Appeal has confirmed in a recent ruling that the Appellants’ lawsuit for compensation from the doctor, resulted in the harm because of his medical negligence, without litigating the hospital where he works; they may be compensated but they may not claim the hospital for the same compensation after they dropped their choice in litigating the hospital and the doctor.
The appealed judgment ruling with rejecting the same is right. Deploring the judgment for different basis in the two cases and that they may claim them jointly and separately for the ruled with amount is unfounded deploring.
The provision of Article 113 of the Civil Transaction law states that ” No person shall be liable for the act of another person, but nevertheless the judge may, upon the application of an injured party and in the event that in his opinion there is justification for taking that course, render any of the following persons liable as the case may be to satisfy any amount awarded against a person who has caused the harm: (b) any person who has actual control,
by way of supervision and direction, over a person who has caused the damage, notwithstanding that he may not have had a free choice, if the act causing harm was committed by a person subordinate to him in or by reason of the execution of his duty.
This indicates that the legislator has permitted the accountability of a person for the action of others in two cases mentioned in Article 313 aforementioned; among them the principal’s accountability for the harm caused by its subordinate who caused the harm through an unlawful act. The legislator empowers the judge, if he finds a justification in the case documents,
to rule, upon the request of the aggrieved party, with abiding the principal by paying the guarantee, originally borne by the responsible party, or not to abide the principal by the same. This may only be achieved by litigating the principal besides the subordinate in the case filed by the aggrieved party against the latter, so that the court can consider the possibility of obliging the principal with paying the guarantee jointly with the subordinate or not.
If the aggrieved party chooses not to litigate the principal in the case, he may not file a case later against him after choosing not to litigate the principal with the subordinate in the previous case.
Whereas it is established in the documents that the Appellants previously litigated the Appellee Dr./……… in the case number 102/2014 Civil Plenary Al Ain requesting to abide him by compensating them against the harms because of his medical negligence in the operation of fixing artificial teeth he performed and resulted in serious harms and pains.
The court responded to their request and ruled for them on 11/6/2014 with the amounts it deemed appropriate to compensate them against these harms, and the judgment became final under the Appeal number 77/2016 which ruled that the appeal is inadmissible. Whereas the aggrieved parties chose to file the case against the doctor who performed the operation,
not the hospital where he works and which was not litigated and did not submit its defense and pleadings, and the court did not decide the principal’s accountability for its subordinate’s acts. The court of first instance ruled with rejecting the case and upholding the appealed ruling which mentioned that “It is confirmed from the case documents that
the judgment 102/2014 ruled for the Appellants with an amount of (2.008.000) AED, pursuant to the abovementioned judgment- as total compensation for the harm affected them. The case, subject of the appearing Appeal, aims at ruling with the same compensation for the same harm claimed by the Appellants in their previous case against Dr./……….none else,
given that nothing prevented them from filing their case at that time against the rest of the current Appellees, and they have no right to have another judgment against the convicted and others- all the current Appellees- as this results in two judgments for one harm and this is legally inadmissible.
The conclusion of the appealed ruling is acceptable and meets the right law and sufficient for the judgment and leads to the conclusion reached by the court, therefore 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
