Introduction
Medical malpractice is one of the many social issues that arise in the field of healthcare. Issues often arise particularly on how to recognize instances of medical malpractice and when to hold doctors and other practitioners liable for the same. Across the world, different countries have put in place diverse strategies and authorities for the identification, evaluation and litigation of cases involving medical malpractice. Medical malpractice is often judged based on the presence of a medical duty of care. This can be either in the ethical essence or professionally and can only be realized based on the existence of various conditions. While it may be easy to identify scenarios in which a medical malpractice has occurred, ascertaining the existence of a medical duty of care proves to be challenging at times. Various conditions must therefore preexist for a doctor to be charged with having a duty of care towards a patient and thus liable for any malpractice that occurs.
Various studies have been conducted in the past to explore what constitutes a medical duty of care. In different countries, the term is used variably and can thus present different conditions and meanings. However, Dean and others assert that the major preconditions for the existence of a medical duty of care in most countries include: the refusal of the doctor to provide medical assistance when required of him/ her; refusal of a doctor to identify themselves as a doctor in case where there is need; and the refusal of a doctor to offer requisite medical services after self identification.[1] In cases where there are allegations of medical malpractice, it is the responsibility of the body mandated to explore such cases to determine the level of accuracy in the allegations. If any of the conditions are confirmed to have been met prior to the occurrence of the malpractice, the doctor holds a duty of care to the patient either ethically by virtue of physical proximity or professionally through the ability to offer requisite services.
Thesis Statement
Many studies have been conducted in the past in regards to medical duty of care. In most of the studies, the concern of the authors is to determine the conditions under which a medical duty of care is owed to the patient. However, few studies carry out comparisons between various national laws to determine the extent of divergence with regards to considerations involving medical duty of care. Standards of practice may be similar across countries yet application of the law may diverge based on factors such as the sources of law in different countries. Because of this, there is need to study the extent of divergence across countries as one considers the litigation measures in cases involving medical duty of care. The present study aimed at determining the differences and similarities between considerations of medical duty of care in Saudi Arabia and Egypt.
Research objective
To clearly develop the intended depth of study in the present paper, a few questions were used to offer guidance to the research scope. The initial objective was to determine the extent of the law regarding medical duty of care in Saudi Arabia and in Egypt.
Research Questions
The research questions pertaining to the study included:
- What is the scope of the medical duty of care in Saudi Arabia?
- What is the scope of the medical duty of care in Egypt?
- What are the causes of medical negligence in Saudi Arabia and Egypt?
- What are the similarities/differences between the medical duty of care in Saudi Arabia and in Egypt?
Answering the research questions was instrumental not only in examining the scope of the law with respect to medical duty of care in the two countries but also in exploring the similarities and differences in the application of the same law across the two nations. This implies that the study was be exploratory in nature and based on a review of existing literature.
Study Methodology
To achieve the desired objective of the study, an exploratory research approach was adopted. This is a form of qualitative research which involves empirical evaluations of the existing information.[2] In most cases, exploratory research is aimed at enhancing the quality of information possessed regarding a particular phenomenon. In this case, the phenomenon in question was medical duty of care. Through exploration, various methods may be applied including experimentation, comparison and the application of different forms of primary research.[3] For the study, a comparative approach was adopted as this was found to be most suitable for the intended objective. The qualitative approach was also established to be effective in situations requiring analysis of existing information, especially where abstraction may be necessary.[4] Comparison was made between Saudi Arabia and Egypt since most of the information available on medical duty of care is neither comparative nor based on any of the two countries. Although the study was conducted based purely on a secondary approach, the methodology was effective in obtaining all the necessary information in relation to the subject of the study. In addition to this, it also helped to achieve greater accuracy in the information presented through the research findings.
Critical Evaluation of Issues
There are various studies that explore the law concerning medical duty of care. Even though most of these studies provide information that can be used to determine the applicability of this law in the event of medical malpractice, there is a key limitation in that most of them do not adopt a law perspective to the problem question. For instance, Mwaheb reports that medical malpractice has been increasingly recognized as a social issue in the present times. According to Mwaheb, doctors and other physician associations are increasingly adopting a negative stance towards laws that support the existence of medical duty of care.[5] Such negativity is derived from increasing number of reports regarding medical malpractice. In some cases, untrained persons or persons without the necessary experience and qualifications to handle certain medical cases have been charged with medical malpractice yet medical practitioners’ associations refute the claim that such persons hold a medical duty of care towards their victims. In various countries, the conditions under which a doctor may be charged with having a medical duty of care towards a patient include possession of the necessary experience and training to handle medical cases.[6]
Medical duty of care is defined by Mwaheb as the legal course of action which can result due to the deviation of a physician from standard practice. When such occurs, deterioration in health, disability and harm or death may result in the patient. The practitioner is then held liable for the negative outcome associated with his/ her actions. Patients who report having experienced negative outcomes following poor medical services may blame the physicians for negligence in medical practice. However, such blames are often treated as allegations until sufficient proof is obtained pertaining to the existence of a duty of care to the patient. Medical duty of care can only be explored where medical negligence results in mortality or morbidity in the patient. Other proofs are required for a person who alleges negligence to pursue litigation for the same.
While there are many deviations in the application of medical duty of care across countries, there are several issues that pose similarity worldwide based on the research conducted by several scholars. From the work done by Dean and others, doctors may hold a duty of care either ethically or professionally towards their patients.[7] The extent of the duty of care owed to the patient depends on the nature of the circumstances under discussion. According to a study conducted by Hassan, Shehab and Kotob, medical duty of care can be explored when a patient presents with conditions such as medical complications, therapeutic omissions, wrong medications and mistakes in caring for patients as some of the issues that can drive authorities into investigating the presence of medical duty of care.[8] In such cases, Constitute asserts that the breach of medical duty of care exists where such practices can be linked to medical negligence.[9] Considering the presence of a medical duty of care thus becomes a key factor in the progression of cases relating to medical negligence.
Medical Duty of Care in Saudi Arabia
In relation to the discourse conducted by Dean and others, medical duty of care can be confirmed to exist based on the satisfaction of three key conditions. A patient or potential patient of a doctor has an entitlement to the doctor’s duty of care. This means that the doctor is ethically or professionally bound to assist any patient or potential patient, especially in an emergency situation. In such cases, the doctor may breach the duty of care in ways such as by not being willing to offer the medical assistance required; by failing to identify themselves as doctors when necessary and by providing the right identification yet failing to offer the necessary assistance.[10] While these conditions may indicate a breach of medical duty of care, Al-Saeed, provides a different perspective that goes beyond considering the actions of the physician in the circumstances. Al Saeed discusses the medical duty of care law as applied in Saudi Arabia. In this regard, he asserts that in the country, medical duty of care can only be pursued in cases where negligence results in mortality or morbidity of the patient. In such cases, the doctor can only be held liable for a breach of medical duty of care if they are qualified for providing the medical services required; are experienced in the field of practice and are licensed to practice in that field. Expecting a doctor to provide services they are not qualified in or are not experienced in or even licensed to provide is considered unrealistic and unreasonable and thus indemnifies the doctor from medical duty of care.[11]
According to Jones and others, the application of the law on medical duty of care in Saudi Arabia is the responsibility of the Sharia Medical panel since the country operates in line with the Islamic Sharia laws. As such, the panel is held responsible for considering the claims brought forth by patients regarding the probability of medical malpractice. The panel comprises of judges and medical personnel who are conversant with laws regarding medical malpractice in the country. Following the reports filed by the patients, the Sharia medical panel is tasked with consideration of private rights when medical malpractice cases are brought forward and with consulting in cases where death, partial or complete organ loss is involved.[12] Where the patients have grievances based on the decisions of the panel, they are allowed to seek further redress from the board of grievances which was constituted to help in this. Additionally, the panel functions as a court albeit without the presence of a jury since there are qualified judges amongst the panel members. Alternatively, the patients who feel inadequately assisted could opt for higher court decisions. However, such decisions are only persuasive but not in any way binding and the panel makes the most crucial decisions. While awarding damages to the victims, the Sharia panel is prohibited from awarding compensations that go beyond ‘Diyah’, which is described as the amount of compensation that is awarded by an employee in case of death.[13]
While the Saudi Arabian law requires consideration of various factors prior to deciding whether a doctor has a duty of care towards a patient, the law also provides for criminal liability in cases where the doctor or physician in question does not possess a duty of care towards their patient or potential patient. For instance, as previously discussed, a doctor who is inexperienced, unlicensed or unqualified cannot have a duty of care towards the patients. This does not mean that the patient will suffer at the hands of unscrupulous persons without redress. Jones and others confirm that Saudi Arabian law provides for the exertion of due care according to established standards. For example, punitive measures have to be taken against doctors or persons who practice with medical license, provide false information in order to maintain the license or decline to treat a patient unjustifiably. In such cases, the liable persons may be punished in accordance with criminal law.[14]
Medical Duty of Care: Egypt
In Egypt, confirmation of medical negligence is similarly relies on various conditions. From the work presented by Mwaheb, the prevalence of medical malpractice in Egypt has driven many medical practitioners’ associations to push for reforms in medical law. For instance, there have been efforts to push for reduction of compensations where medical negligence is involved. The rise in cases of medical malpractice in Egypt is attributed to technological advances and increase in the number of medical personnel, both of which lead to divergence of skills and knowledge. The consequence of such has been increased probability of medical malpractice. From the reports made by Dean and others, medical negligence is directly linked to medical duty of care. One of the conditions under which this duty is confirmed to exist is through physical proximity to the patient at the time when the help is needed. Such a case is reported in emergency situations such as the case of Lowns v Woods where the doctor refused to attend to a patient in an emergency situation after self identification.[15] Besides emergency situations, it becomes necessary to confirm the existence of a medical duty of care where a patient reports medical negligence. In the report by Mwaheb, any individual who reports medical negligence must first prove the existence of a duty of care by the doctor. Other conditions include the existence of compensable injury or death, connection between the injury and the lapse in care provision, and violation of applicable medical care standards. [16] The rates of breach of medical duty of care in Egypt are significant with general hospitals leading with more than 67.3 percent of the reported cases. This could also be indicative of the limited number of medical personnel in relation to the number of patients attended to per day. Medical duty of care is thus explored as being either ethical or professional based on how it results. In cases where the doctor is requested for assistance, an ethical duty of care is possessed. Once the doctor accepts to provide healthcare services, he/ she hold the duty of care to provide competent services. Violation of any of the conditions at either stage constitutes a breach of medical duty of care.[17]
Most of the literature that provides information regarding medical duty of care contains relevant information to the study objective. However, the articles are also limited in terms of their coverage of the law details with regards to medical duty of care. In the case of either country, most of the information provided is generalizations of the context of medical practice in the country. As such, extracting crucial information from such pieces of literature proves to be challenging as well as complex in that the information obtained requires extrapolation.
Findings and Discussion
Medical negligence in the two countries of study is explored differently. According to research conducted by various authors, there are differences and similarities in the scope of medical negligence cases between Saudi Arabia and Egypt. In Egypt, the presence of a duty of care to a patient or potential patient forms the point of origin for all cases involving medical negligence. Because of this, any registered allegations relating to medical negligence have to be evaluated for accuracy based on the existence of conditions that warrant presence of medical duty of care. Such conditions include qualification, experience and licensure. In cases where all the conditions exist, cases involving medical duty of care are then followed up by the Forensic Medical Authority to ensure that the culpable persons are placed under the necessary corrective measures.
On the other hand, Saudi Arabian cases are handled by the Sharia Medical panel which applies the Islamic Sharia laws to determine accuracy of allegations. In cases where the victims are found to be justified, the panel advices for the compensation as long as any compensation approved does not go beyond the statutory compensation for death. As opposed to the Egyptian laws that do not provide for criminal liability in cases of doctors who violate criminal rather than medical laws, Saudi Arabian medical practice law provides the opportunity for certain actions to be punishable by criminal law. For instance, doctors who practice without licenses are punishable by criminal law.
The causes of medical malpractice in the two countries are not clearly discernible. However, the reports provided by Mwaheb clearly explain that in Egypt, such practices may be attributed to technological advancements, increase in the number of practitioners and diversity of skills and knowledge. Moreover, the prevalence reports regarding medical malpractice in Egypt are also indicative of the probability that the low ratio of medics to patients may also result in cases of medical negligence among patients. This is based on the argument that general hospitals, in comparison to clinics and private hospitals are more likely to serve a larger population of patients with a small percentage of doctors and other medical practitioners.
Conclusion and Recommendations
Based on the findings obtained through the study, it can be argued that the research satisfactorily achieved its purpose of exploring the extent of medical duty of care in Egypt and Saudi Arabia. It has been established that while the two countries may be similar in the conditions under which medical duty of care is said to exist, the extent of application of these conditions differs across the two countries. Similarly, the causes of medical malpractice may also be different across the two countries in spite of information pointing to understaffing and technological advancements as some of the key issues that may result in malpractice. It can thus be concluded that the study has been effective in answering the research question. However, it is still limited in that a lot of information is still required in order to cover the scope of medical duty of care in the two countries. It is therefore recommended that besides engaging in greater emphasis on the extent of the law, the applicability of the laws to the international context should still be pursued.
Bibliography
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Al-Saeed, AH. ‘Medical liability Litigation in Saudi Arabia’. (2010) SJA 4(3).
Bergold, J. and Thomas, S. ‘Participatory Research Methods: A Methodological Approach in Motion’. (2012) QSRF 13(1).
Constitute. Egypt’s Constitution of 2014. Constitute Project, Translated by International IDEA, 2014.
Creswell, J. Qualitative Inquiry and Research Design: Choosing among Five Approaches. Sage Publications, 2013.
Dean, J., Mahar, J., Loh, E. and Ludlow, K. ‘Duty of Care or a Matter of Conduct? Can a Doctor Refuse a Person in Need of Urgent Medical Attention?’ (2013) 41(10) DC.
Hassan, D., Shehab, A. and Kotb, H., ‘Alleged Medical Malpractice: A Retrospective Study of Forensic Evaluation of Cases in Cairo and Giza Regions- Egypt (2009- 2011)’. (2014) JFR 5(239).
Jones, W., Shabnam, K. and Loise M. ‘Saudi Arabia: An Overview of Medical Malpractice in the Kingdom of Saudi Arabia.’ Clyde and Co Consultants, 2014.
Luton, L., ‘Review of Qualitative Research Approaches for Public Administration’. (2014) JPAE 17(2) 305, 308.
Mwaheb, M, Screening of Alleged Medical Malpractice in Egypt (Fayoum Governorate). Journal of Forensic Research, 7(2016), 341.
[1] J Dean, J Mahar, E Loh, and K Ludlow, ‘Duty of Care or a Matter of Conduct? Can a Doctor Refuse a Person in Need of Urgent Medical Attention?’. (2013) 41 DC 746, 748.
[2] L Luton, ‘Review of Qualitative Research Approaches for Public Administration’. (2014) 17 (2) JPAE 305, 308.
[3] J Creswell, Qualitative Inquiry and Research Design: Choosing among Five Approaches. (Sage Publications, 2013).
[4] J Bergold, and S Thomas, ‘Participatory Research Methods: A Methodological Approach in Motion’. (2012) 13 QSRF.
[5] M Mwaheb, ‘Screening of Alleged Medical Malpractice in Egypt (Fayoum Governorate),’ (2016) 7 JFR 341.
[6] AH Al-Saeed, ‘Medical liability Litigation in Saudi Arabia’. (2010) 4(3) SJA 122, 126.
[7] Dean et al (n 1), 746.
[8] D Hassan, A Shehab, and H Kotob, ‘Alleged Medical Malpractice: A Retrospective Study of Forensic Evaluation of Cases in Cairo and Giza Regions- Egypt (2009- 2011)’. (2014) 5 JFR, 239.
[9] Constitute, ‘Egypt’s Constitution of 2014.’ (Constitute Project, Translated by International IDEA, 2014)
[10] Al-Saeed (n 6, 124).
[11] J Al Jarallah, ‘The Pattern of Medical Errors and Litigation against Doctors in Saudi Arabia.’ (2013) 20(2) JFCM 98, 105.
[12] W Jones, K Shabnam, and M Loise, ‘Saudi Arabia: An Overview of Medical Malpractice in the Kingdom of Saudi Arabia.’ (2014) CC.
[13] Ibid 4.
[14] Al Jarallah (n 11) 99.
[15] Dean (n 1), 748.
[16] Mwaheb (n 5), 342.
[17] Ibid 343.