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Presentation at the Faculty of Medicine, Ahmadu Bello
University, Zaria, Nigeria on 7 February 2014; by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH
(Harvard) DrPH (Harvard), Faculty of Medicine, King Fahad Medical City, Riyadh Email: omarkasule@yahoo.com
WEB: www.omarkasule-tib.blogspot.com
Case for Discussion
A Muslim with dual
Nigerian-Singaporean citizenship was involved in a car accident in Singapore
and was declared brain dead. Under the opt-out policy of Singapore his kidneys
had to be removed to save another Muslim patient. The family was not happy but
they could do nothing. The Surgeons insisted that a death certificate be
written before they proceeded to harvest the organs. The family protested that
a death certificate could not be issued for a person whose heart and lungs were
still functioning under artificial support. They quoted a fatwa that recognized
death only at cessation of the heart beat and respiration. The medical director
intervened and ordered the surgeons to proceed with the organ harvesting. Life
support was withdrawn as soon the organs needed were harvested and the patient
'died' the closure of the abdomen was accomplished after this. The family sued
the surgeons for operating on a living person and failing to maintain life
after the operation.
Definition of Medical Error
·
Medical error:
anything that goes wrong in patient management and related circumstances.
·
Errors include failure to perform according to professional standards,
honest mistakes (mistakes without negligence), avoidable mistakes, and
unavoidable mistakes).
·
An error is recognized even if no patient injury occurred.
·
Expected adverse or side effects medication or procedures are not
considered errors.
Definition of Malpractice
·
Malpractice is a form or medical error.
·
Violation of the physician oath and failure to fulfill the duties of
the physician to carry the trust, adau al manta.
·
Failure to and to carry out responsibilities of the physician, masuliyat
al tabiib.
·
Violation of the patient’s rights (e.g. autonomy, privacy,
confidentiality, disclosure, personal dignity, etc.).
Definition of Negligence
·
Negligence is a special type of malpractice that is accompanied by
patient injury.
·
Negligence is defined according to the customary standards of care.
·
The concept of negligence is relative; Negligence relates to
unreasonable error.
·
Negligence can be intentional.
Types of Physician Liabilities
·
Physician liability: lack of informed consent, Errors, Breach of duty,
Neglect of duty
·
Vicarious liability: is when someone is made liable for a negligence
they did not personally perform for example the employer.
·
Liability of hospitals
·
Manufacturer’s liability
·
Teacher's liability: an Islamic perspective
Elements of Proving a
Negligence Claim
·
Existence of a duty
·
Breach of the duty
·
Injury resulting from breach of duty
·
Burden of proof of the causal connection between breach of duty and injury
Physician Defense Based on the
Statute of Limitations
·
Court action must be instituted within a reasonable period.
·
The statute of limitations states that there is a fixed period after
the breach during which tort action can be brought.
·
The reason for this is that if the suit is delayed too long witnesses
or medical records may no longer be available.
Physician Defense Based on
Absence of Duty
·
Was the physician in charge of the patient?
·
Did a contract exist between the physician and the patient?
·
Who is liable? The primary or the consultant?
·
Patient assigned to a primary in the records but primary did not treat
him.
Physician Defense Based on
Breach of Duty 1
·
The standard of care is used to judge breach of duty.
·
The burden of proof of breach of standard of care lies with the
patient.
·
Proof of breach may be based on proof of causation of damage or risk.
·
The knowledge, experience, and impartiality of hostile expert witnesses
can be challenged.
Physician Defense Based on
Breach of Duty 2: Exceptions to the Rules
·
Boolam principle (1957):
The judge ruled that doctors could not be found negligent if they acted
according to a professional opinion accepted by a reasonable body of medical
opinion even if there could exist a contrary opinion by another responsible
body of medical opinion.
·
The Bolitho case:
Doctors are expected to follow responsible medical opinion but would not be
found negligent in cases in which that opinion did not stand up to logical
analysis. The implication of this was that medical opinion was not the final
arbiter of the standard of care to be used in defining negligence.
Physician Defense Based on Lack
of Damage
·
Not usually a successful defense; Patients do not go to court without
obvious injury / damage.
·
Establishing the history of the injury: Problem of old vs new injury.
Physician Defense Based on Lack
of Causation
·
The standard of proof used is a balance of probabilities.
·
Proof of breach may be based on ‘but-for’ test.
Physician Defense Based on
Contributory Negligence
·
Contributory negligence: the patient is contributory to the negligence
by unreasonable conduct or behavior.
·
Blame is apportioned between the physician and the patient.
Physician Defense Based on
Comparative Negligence
·
In comparative negligence the negligence is apportioned among several
physicians each according to the quantum of his/her contribution to the
negligence.
·
It does not absolve the physician but decreases liability.
Damages and Compensation:
Definition
·
The principles for damages for medical errors are generally the same as
those of injury causation in other areas of life with some exceptions.
·
Compensation, dhamaan, for doctor errors arises when the doctor
is found negligent.
·
In order to protect the public interest there is still liability in
erring while acting with good intentions, diyat al khataa.
Damages for Personal Injury
·
Pecuniary damages involve full compensation of losses in personal
injury which include medical expenses and loss of earnings including
prospective ones, and loss of earning capacity.
·
Non-pecuniary damages in personal injury involve fair or reasonable
compensation for pain, suffering, and loss of faculty which leads to loss of
amenity.
·
Aggravated damages cover pain and suffering.
·
Exemplary damages are punitive.
·
Provisional damages are paid if further deterioration is expected.
Provisional payments may be made while waiting to ascertain full damage.
Damages for Death
·
Court actions for the benefit of the deceased continue after death.
·
The survivors are entitled to compensation of financial support in case
of fatal accidents. They also get payment for bereavement and loss of
dependency.
Damages for Wrongful Birth or
Wrongful Life
·
A woman can bring charges against a physician for wrongful birth due to
failure of contraception.
·
Damages for wrongful birth include mother’s lost earnings and the cost
of child maintenance.
·
A child can bring action claiming damages for wrongful life due being
born with severe congenital anomalies. The child can claim a legal right to be
dead rather be alive with such severe disability.
Other Forms of Damage
·
Action for damage can be brought for emotional distress, economic loss,
and breach of confidence.
·
The physician must be careful in answering queries about a patient from
the police, employers, and child protection agencies.
·
A physician cannot volunteer to give evidence about a patient in a
court of law. He can go to court only on subpoena.
Damages for Injury and Death:
The Shari’at Perspective
·
The shari’at has very advanced concepts for assessing damage that need
to be studied and to be applied to modern forms of injury.
·
The conceptual basis of the shari’at guidelines on damages is
far superior to the conventional standards that are used today.
·
Intentional causation of death
·
Un-intended causation of death
·
Intentional causation of injury
·
Computation of diyat
Intentional Causation of Death:
Overview
·
Purely intentional homicide, qatl 'amd, is deliberate
pre-planned and pre-meditated murder. The perpetrator of the crime sets out
with a clear intention to terminate the life of an individual for a specific
motive.
·
It can be conceived in three forms: criminal homicide, judicial
homicide, and medical procedures involving deliberate termination of life.
·
The hospital shares in the liability and pays a portion of the diyat
because it is responsible for background checks not to allow criminal persons
as hospital employees.
Intentional Causation of Death:
Criminal Homicide
·
Criminal homicide for personal reasons is rare in a medical situation
and if it occurs should be handled according to the normal rules of
retribution, qisas.
·
The punishment could be execution or payment of blood money, diyat.
·
The family of the deceased could forgive the killer because the
shari’at treats homicide as a civil case.
Intentional Causation of Death:
Judicial Homicide
·
Judicial homicide occurs when a physician is ordered by governmental
authorities to take part in execution of a criminal such as giving a lethal
injection or operating an electrocution apparatus.
·
This does not lead to any liability for the physician but physicians
are advised not to participate if they can because the role of executioner is
contrary to the primary role of the physician to preserve and protect life and
health, hifdh al nafs.
Intentional Causation of Death:
Medical Procedures
·
Some medical procedures have a non-criminal intention to terminate.
·
End of life: euthanasia both active and passive, withholding and
withdrawal of life support, physician-assisted suicide, do not resuscitate
orders.
·
Reproduction: termination of pregnancy, separation of siamese twins
involving letting one die so the other can survive, selective killing of
fetuses in multiple pregnancy so that some can survive, craniotomy or any
procedure that involves killing a fetus who cannot be delivered otherwise in order
save the mother’s life.
·
Some of these procedures have been allowed by the jurists while others
have been prohibited.
·
If a physician commits a forbidden procedure he will be liable for
destruction of life but the punishment cannot be the same as that of criminal
homicide but this matter is better left to the jurists to determine.
Un-intended Causation of Death,
qatl khata
·
Purely accidental homicide is defined as death ensuing due to an honest
mistake.[1]
This occurs in iatrogenic death due to wrong medication or wrong surgical
procedures.
·
For example diyat is due if an ignorant or incompetent physician
makes a mistake leading to death.[2]
·
Expiation is carried out by fasting 2 consecutive months in addition to
the diyat.
·
The diyat is reduced and is called ghurrat (about 10% of
the full diyat) if the victim was a fetus.
Intentional Causation of
Injury: Overview
·
Purely intentional injury is one in which the criminal had malicious
intent to cause injury. Purely accidental injury or negligence resulting in
harm has no pre-meditated intention to harm.
·
Unintended injury accidental injury occurs in the course of medical
treatment.
·
Criminal intentional injury is rare in a medical environment. If it
occurs it is punished by the usual rules of retribution, qisas.
·
Unintentional injury occurs in medical practice. Diyat is
imposed on the physician and the hospital. Full diyat (equivalent to the
diyat of homicide) is imposed for destruction or loss of function of
single organs: the nose, the eye, the tongue, the lips, the penis, and the
testicles.[3]
Half of the full diyat is imposed for destruction or loss of function of
paired organs like the hand, the eye, the ear, the foot.[4]
Ijtihad is made for injuries to other organs.
Computation of Diyat
·
The computation of the diyat involved is complicated and
requires new ijtihad.
·
The classical Law manuals various amounts of diyat in terms of
camels or other objects for different types of injury. Not all possible
injuries were covered.
·
Modern medical knowledge enables us to describe injuries in a more
precise way. We are also better able to describe and assess functional
disability resulting from the injuries.
·
A study is also needed to clarify the distinction between punitive and
compensatory awards for body injuries.
Disclosure of Errors
·
The physician involved in treating a patient is required to inform the
patient of any error. The disclosure must be immediate and complete.
·
All members of the healthcare team are obliged to make the disclosure
to the hospital authorities if the treating physician refuses to do so.
·
Disclosure can be made to the family if the patient is incompetent or
nor ready to handle the stress of the disclosure.
REFERENCES