The Doctor's Error: Is He Liable?
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The first question of Fatwa No. ( 10890 )
Q 1: How is liability determined if the doctor did his best but made a mistake and caused a disability to the patient, or if he made a mistake but did not cause a disability? There is a case where a doctor diagnosed a patient as having appendicitis. When he performed the operation, he found the appendix to be healthy, so he removed it. Later, it was discovered that the patient was suffering from acute renal colic. The doctors said: This is a mistake that doctors often make. As for the removal of the healthy appendix, if he had not removed it, he would have faced difficulty with the patient, as he would have had to tell him that it was healthy and that he had not
removed it, which would cause him many problems, such as legal proceedings and a bad reputation. On the other hand, if he did not tell him, the patient might have developed an inflammation in it, and if he went to another doctor who saw the marks of the previous wound, he might not think that he was suffering from inflammation in it, and the patient might have died as a result of the deception and concealment resulting from the previous operation. Therefore, he must do one of two things: either tell him, or remove it. In this case, if he removed it in this manner, is he entitled to take the agreed-upon fee? This is just one example of the problems we face in our work. If we handle the matter other than by the Shari'ah—and this is what all doctors here do—there will be no problem, but we want to apply the Shari'ah to ourselves, so help us, may Allah help you.
Vol. 1: First: If the doctor does what he is ordered to do and is skilled in his craft, proficient in knowing the disease for which the operation is being performed and in performing it, and does not exceed what he should do, he is not liable for any error he makes, nor for death or disability resulting from the spread of the disease; because he did what was permitted to him by the Shari'ah. Its equivalent is if the imam cuts off the hand of a thief or does an act that is permissible for him and he is authorized to do. However, if he is not skilled, it is not permissible for him to perform the operation; rather, it is forbidden. If he performs it, he is liable for any error he makes and the spread of the disease. Likewise, if he is skilled but his hand slips by exceeding what the operation requires, or if he performs it with a tool that causes much pain, or at a time when it is not suitable for the operation, or if he performs it in
another place, or the like of that—he is liable for what he erred in and its consequences; because this is an act that is not permitted, but rather forbidden. Second: It is obligatory for the doctor to be careful in diagnosing the disease, and to cooperate with his colleagues in that before performing the operation, and to use modern instruments in diagnosis as much as possible, and not to rush the operation before confirming the diagnosis. And if he performs it and then makes a mistake, he must announce his mistake to those who are responsible before them, and not deceive or conceal. He must record it in the patient's file out of fear of Allah the Exalted, and fulfillment of the duty of trust, and preference for the patient's interest, and prioritizing it over the interest of the doctor, and repelling the bad consequences for the patient that may result from concealment and deception. He is not entitled to a fee for the operation in which he made a mistake in the previous example and its like. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Q 1: How is liability determined if the doctor did his best but made a mistake and caused a disability to the patient, or if he made a mistake but did not cause a disability? There is a case where a doctor diagnosed a patient as having appendicitis. When he performed the operation, he found the appendix to be healthy, so he removed it. Later, it was discovered that the patient was suffering from acute renal colic. The doctors said: This is a mistake that doctors often make. As for the removal of the healthy appendix, if he had not removed it, he would have faced difficulty with the patient, as he would have had to tell him that it was healthy and that he had not
removed it, which would cause him many problems, such as legal proceedings and a bad reputation. On the other hand, if he did not tell him, the patient might have developed an inflammation in it, and if he went to another doctor who saw the marks of the previous wound, he might not think that he was suffering from inflammation in it, and the patient might have died as a result of the deception and concealment resulting from the previous operation. Therefore, he must do one of two things: either tell him, or remove it. In this case, if he removed it in this manner, is he entitled to take the agreed-upon fee? This is just one example of the problems we face in our work. If we handle the matter other than by the Shari'ah—and this is what all doctors here do—there will be no problem, but we want to apply the Shari'ah to ourselves, so help us, may Allah help you.
Vol. 1: First: If the doctor does what he is ordered to do and is skilled in his craft, proficient in knowing the disease for which the operation is being performed and in performing it, and does not exceed what he should do, he is not liable for any error he makes, nor for death or disability resulting from the spread of the disease; because he did what was permitted to him by the Shari'ah. Its equivalent is if the imam cuts off the hand of a thief or does an act that is permissible for him and he is authorized to do. However, if he is not skilled, it is not permissible for him to perform the operation; rather, it is forbidden. If he performs it, he is liable for any error he makes and the spread of the disease. Likewise, if he is skilled but his hand slips by exceeding what the operation requires, or if he performs it with a tool that causes much pain, or at a time when it is not suitable for the operation, or if he performs it in
another place, or the like of that—he is liable for what he erred in and its consequences; because this is an act that is not permitted, but rather forbidden. Second: It is obligatory for the doctor to be careful in diagnosing the disease, and to cooperate with his colleagues in that before performing the operation, and to use modern instruments in diagnosis as much as possible, and not to rush the operation before confirming the diagnosis. And if he performs it and then makes a mistake, he must announce his mistake to those who are responsible before them, and not deceive or conceal. He must record it in the patient's file out of fear of Allah the Exalted, and fulfillment of the duty of trust, and preference for the patient's interest, and prioritizing it over the interest of the doctor, and repelling the bad consequences for the patient that may result from concealment and deception. He is not entitled to a fee for the operation in which he made a mistake in the previous example and its like. And success is from Allah, and may Allah send prayers and blessings upon our Prophet Muhammad, his family, and his Companions.
Source
www.alifta.gov.sa
The Arabic text is copied verbatim from the original source, without any edits.