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Medical errors in Kuwait between professional justifications and legislative confrontations

“Human error is prevalent in all works, but the extent of its impact varies from field to field. In the medical field, it is of particular importance, and any error is unacceptable because this field concerns human life and health, so it requires the creation of a highly efficient medical environment and staff and the enactment of legislation that punishes wrongdoers.”

Wisdom Center for Studies, Research and Consulting

Introduction

Although there is legislation governing and holding doctors responsible for their professional errors in Kuwaiti law, this did not achieve the desired results, This is confirmed by the statements of Director of the Forensic Medicine Department, that the General Directorate of Criminal Evidence considers about 450 cases of monthly medical error, indicating that the rate of these cases rose 900 % within 13 years ([1]).

The law fails to protect victims who have been victims of wrong medical diagnosis, as well as to deter wrongdoers, because its provisions don’t contain severe penalties, or difficulty in proving a doctor’s fault, or the absence of appropriate legislation to provide satisfactory compensation to victims for the damage they have suffered, bearing in mind that certain medical errors occur because of the patients themselves.

This research deals with the definition of medical error and the types and causes of its occurrence, and then the justifications of doctors that caused these errors, and laws regulating the liability of the doctor for his mistake in Kuwaiti law, and finally some legislative proposals that we see it can reduce the problem of medical errors.

First. Definition of medical error

Medical errors are generally divided into medical error of the Utilities, and the personal medical error ([2]), as follows:

1. Medical error of the Utilities

It is the result of a failure in the medical Utilities, whether this utility is public or private. The lack of vital equipment or medicines supposed to be available in each health Utilities or the lack of emergency doctors to deal with accidents and critical situations, and other violations, lead to harm to the patient.

2. Personal medical error

It is caused by a doctor or a member of the medical staff and causes damage to the patient, whether due to negligence or ignorance of technical matters supposed to be taught by a doctor in his scientific and functional degree, or to conduct experiments not scientifically dependent on patients, and this error is considered – With another consideration- under the heading of “scientific error” which will be defined later.

Errors in the medical field – From another recital- are divided into physical, technical and practical, as follows:

A – Physical error

It is related to non-compliance with caution and prudence during the performance of a professional duty toward the patient, for example, a physician’s surgical procedure using unsterile instruments, which endangers the patient’s life.

B – Technical error

It is related to the basics of the profession and is usually produced because of ignorance of medical assets or not applies it properly, and it causes allergies to the patient. For Example when the doctor prescribes a medication that causes allergy to the patient ([3]).

C – Scientific error

It is the fault that the doctor falls in, although he has taken all the caution and prudence means and used all the scientific means available in the examination, and is often in the diagnosis([4]).

Causes of medical errors ([5])

The occurrence of medical errors is due to several reasons, including lack of knowledge, or lack of caution and prudence, or negligence, and may occur due to lack of observance of laws, regulations and decisions, lack of training and medical information necessary for the doctor, excessive stress and excessive work.

Personal Medical Error forms ([6])

There are many forms of personal medical error, including:

– Misdiagnosis

It occurs at the stage of the examination of the patient and is due to negligence or scientific error on the part of the attending physician, and it follows that all subsequent stages of this stage are wrong and may lead to the death of the patient ([7]).

– Pharmacological and therapeutic errors

it is the mistake in prescribing a medication or using a wrong method of treatment, and this causes harm to the patient whether it was due to that the doctor didn’t follow the prevailing scientific principles or lack of compliance with the rules of caution and prudence ([8]).

Pharmacological errors are the most common errors, and not only to give wrong Medication for the patient but also include incorrect doses, lack of verification of drug interactions ([9]).

– Error in surgical operations

It is the case in which the doctor disrupt some of the obligations related to the operation, whether before, during or after the operation, such as his commitment to take the patient’s consent to the operation, and his commitment to the examination and radiology and correct diagnosis, and commitment to the utmost vigilance when the operation and the usual care, and commitment Supervision and prevention after the conduct ([10]).

Anesthesia errors

They occur in the field of anesthesia either as a result of the lack of full scientific knowledge of the anesthesiologist in his field or as a result of the recruitment of people who are not qualified to do the anesthesia ([11]).

Rays errors

Committed by A physician or radiologist as a result of a violation of one of the obligations to be made when performing the radiology, whether related to the safety of the equipment used or other obligations that cause harm to the patient in the event of a violation.

Childbirth errors

These are the mistakes made by the doctor on the pregnant woman from the moment of the pregnancy until the childbirth Operation and after the operation, then until the reassurance on her and the newborn, and breach of any obligation during these stages to cause harm to them, and the doctor is responsible for that damage as capable.

Second – the justifications of doctors for their medical errors

Doctors in Kuwait justify the occurrence of medical errors with several reasons, including reasons unrelated to the medical profession, such as the side effects of some drugs and primary tools for surgical operations such as an aesthetic and its impact on the bearers of certain diseases, for example. Although it must be used in some operations or surgeries.

This justification is unacceptable, so the doctor should be aware of the side effects of the drugs, which he can familiarization it by asking the specialists in this or through the Internet.

Some attributed the occurrence of some medical errors to that In some specialties the doctor does not get the required rest, and It is a justification that must be studied and treated carefully, the doctor must get enough rest so that he can make a proper diagnosis and avoid the error as much as possible, and this will only come when compensate for the shortage in the medical staff by providing them with the necessary elements.

Many doctors attributed medical errors to the doctors or nursing category of expatriates, where there are no controls or requirements to bring the best medical competencies, which leads to the recruitment of beginners or those who do not have enough experience to work in the medical field, in this case, must be put all controls that Ensure the recruitment of the best medical competencies ().

The doctors also attributed some medical errors to the patients themselves, for example, some patients have several complaints at the same time, and when they visit the doctor begin to list all the complaints they suffer, which takes more than the time allowed for consultation, so the doctor must listen carefully to each What the patient suffers, with controls that prevent the patient from consuming the time of the doctor in what does not benefit.

And some of what doctors have said in this context is that some patients are not sufficiently forthright with the doctor who treats them even unintentionally, hiding some of the essential things related to them and affecting their treatment, such as the precedent of certain diseases or taking certain medicines or their allergic to some pharmaceutical.

Hiding any information on the part of the patient, even if simple, can be life-threatening, but the doctor must inquire from the patient about everything that affects his treatment without waiting for the patient to disclose it on his own.

Finally, some doctors argue that there is no culture in the Kuwaiti community about the difference between medical error and medical complications. Most errors in hospitals are medical complications, not errors, so the medical culture should be spread in general to the community.

Third – the responsibility of the doctor for medical error

In Kuwaiti law, the work of a physician must be in conformity with scientific and practical principles in order to be permissible. If he violates these assets and causes damage to the patient, he shall be subject to disciplinary, civil and criminal responsibility, whatever the degree of gravity or type of error ([12]).

And the skill only of the doctor is not enough, it must be accompanied by the usual care by who like him when examining the patient and when treated, if he falls short to do that, he is the guarantor of any damage resulting. Criteria for error are sometimes associated with the assessment of the physician’s behavior, potential, level and professional in his responsibility for his medical error.

The jurisprudence and the judiciary decided to determine the responsibility of the doctor for his technical error of any kind or degree of severity, but provided that this error is firmly established in his right, and the judge in order to verify this has the rights to seek the opinion of technical experts, the judiciary stipulated that the medical error must be existing and distinctive, to The responsibility of it be held for the doctor ([13]).

Due to the absence of a specialized law to regulate the issue of medical errors in Kuwait, three laws are used to address them, namely the law of practicing the medical profession, the penal code, and the civil law, review as follows:

The responsibility of the doctor for his medical error in Law No. 25 of 1981 on the practice of the profession of human medicine and dentistry and their auxiliary professions.

Article 4 of Law No. 25 of 1981 on the Practice of Human Medicine, Dentistry and Associate Professions states:

“Every physician licensed to practice the medical profession in Kuwait shall endeavor in the performance of his work to preserve human health. He should use all of his information, conscience and professional ethics to achieve this objective and, if necessary, seek appropriate advice”.

It is clear from the text of this article that there is an obligation on the doctor to maintain the health of the patient, and implicitly understand that it must do everything possible to achieve this, even if it is forced to seek the opinion of other specialists.

Article 13 of the same law stipulates that:

“The doctor shall not be responsible for the condition reached by the patient if it turns out that he has taken the necessary care and resorted to all means that anyone in his circumstance would resort to diagnose the disease and treatment, but shall be responsible in the following cases:

A) If a mistake is made as a result of ignorance of technical matters that each physician should be familiar with it, whether in terms of diagnosing the disease or prescribing the appropriate treatment. and This error resulted in harm to the patient

B) If he conducts experiments or scientific researches that are not technically dependent on his patients and consequent harm to them.

The responsibility of the doctor for his medical error in accordance with the Kuwaiti Penal Code No. 16 of 1960.

As for the criminal liability of the doctor for medical error, it is dealt with in accordance with three articles of the Kuwaiti Penal Code No. 16 of 1960, namely: Articles Nos. 154, 164 and 168.

Article 154 of the Code deals with the death of a patient as a result of a doctor’s error. It stipulates that “Whoever kills a person accidentally, or frivolity, negligence, carelessness or lack of compliance with regulations, shall be punished by imprisonment for a term not exceeding three years and a fine not exceeding three thousand rupees or one of these penalties”.

Article 164 deals with the case of a patient being harm or injured as a result of a medical error, which states that: “Any person who causes injury to a person or Accidentally causing significant harm to him, whether that is caused by negligence, frivolity, negligence, carelessness or lack of compliance, Subject to the regulations, imprisonment for a period not exceeding one year and a fine not exceeding one thousand rupees or one of these penalties”.

Article 168 referred to them, which states that: “Everyone who has committed-other than an emergency-to perform surgery or treatment of another person or Doing a project that involves a life or health threat, and He did not have the necessary expertise or due diligence in carrying out his work, resulting in the death or injury of the victim, shall be punished in accordance with the provisions set forth in Articles 154 and 164″.

We note here that the provisions of the Kuwaiti Penal Code governing the liability of a doctor for his medical error are not sufficiently deterrent by making the prison sentence optional for the judge even in the case of manslaughter, as well as that some unintentional errors may be so serious as to be intentional, and should Criminally treating as an intentional mistake.

The provisions of the Kuwaiti Penal Code governing the liability of the doctor for his medical error do not extend to the rest of the medical staff, that one of them may cause any death or harm to the patient, as it is implied that the intention is solely the doctor alone.

– The responsibility of the doctor for his medical error in the Kuwaiti Civil Code No. 67 of 1980.

The Kuwaiti civil law faced the responsibility of the doctor for his medical error in five articles, articles 227,231,240,250,251. The first three articles laid the basis of the liability of the doctor and the medical facility for the medical error that resulted in harm to the patient and the types of damage and entitled to compensation, where article 227 stated that: “Anyone who, by doing wrong, has caused harm to others shall be liable to indemnify him, whether indirect or causative harm, A person is obliged to indemnify the damage arising from his wrongdoing and if he is indistinguishable”.

Article 231 states that: “Compensation for unlawful work shall deal with damage, even if it is moral, and in particular moral damage, including sensory or psychological harm caused to a person as a result of prejudice to his life, body, freedom, display, honor, reputation, Financial consideration, social or moral status, also moral damage includes the feeling of sadness and sorrow and the lack of love and compassion as a result of the death of a Dear, however, it is permissible to award compensation for moral damage resulting from death only for husband or wife and relatives to the second degree”.

Article 240 stipulates that: “The Followed shall be liable in the face of the injured for the damage caused by his follower to his unlawful action when it is because of him either in the performance of his job or because of it. The Association of Dependency shall, even if the Followed is not free to choose his or her follower when the task entrusted to him or she affirms that the subject has effective authority to control and direct it”.

The other two articles show the amount of blood money and those who are entitled to it and how it is distributed. Article 250 stipulates: “If the blood money deserves, for the loss of self, it is shared by the heirs in accordance with the legitimate assessments”.

Article 251 stipulates that: “Full blood money is estimated at ten thousand dinars. The amount may be amended by a decree, and a decree of schedule of blood money shall be issued in accordance with the provisions of the Islamic Shariah, according to which the cases of eligibility for blood money are determined in whole or in part, all of which is conditional on that the patient or his family or his representative must prove that the error was committed by the physician. And that there is harm caused to the patient between it and the doctor fault a causal relationship. If this happens, the doctor’s responsibility for such damage shall be held and he shall be obliged to guarantee the harm caused to the patient due to his mistake, negligence or default ([14]).

Procedures generally followed when a medical error occur ([15])

In case of a medical error, a complaint is submitted by the patient. A committee is formed from inside the hospital to discuss the medical error, then a committee from the Ministry of Health, after which a larger committee is formed from the Faculty of Medicine in cooperation with the Ministry of Health in which doctors from the University.

It is noteworthy that there are no controls to ensure the impartiality of any of the committees formed to investigate in case of medical error.

It is noteworthy that it is difficult to prove medical error due to the lack and scarcity of specialists in the analysis of medical errors, and there is another reason lies in the multiplicity of elements of health service, such as radiology, analysis, medicines, surgical operations, nursing, medicine and many others, and the difficulty of identifying who caused the medical error, along with mediation, courtesy and nepotism From within the profession ([16]).

Therefore, the medical error reporting system should be readily available with clear information on how to report([17]).

Fourthly- Processors and suggested results

Having reviewed the medical errors in terms of concept, types, causes, and reasons for the doctors’ reasons for their responsibilities, we have reached several conclusions, some of which we referred to during the study and summarized as follows:

1- Medical errors, although mostly due to doctors, but some of them are due to patients.

2- The lack of an independent law that fully governs medical errors in Kuwait, and it is even dealt with under three laws in the previous detail.

3- The question of whether to sign a sanction against the perpetrator of the medical error depends on the report of a medical committee formed by doctors and university proficeors, which may lose the neutrality and credibility of the report as a result of sympathy among the sons of the same profession.

4- There are no strict regulations that guarantee to bring the best medical competence to work in Kuwait.

5- The provisions of the Kuwaiti Penal Code governing the liability of a physician for his medical error are not sufficiently deterrent, since some unintentional errors may be of such gravity as to be of such magnitude as to result, in certain cases, the serious non-intentional fault must be treated as a willful fault.

6- The provisions of the Kuwaiti Penal Code governing the physician’s liability for medical error do not extend to the rest of the medical personnel, any of whom may cause death or injury to the patient.

Fifth. Recommendations for the decision maker

1- A special law to confront medical personnel errors is being drafted, and a special law is proposed to cover all medical staff errors from doctors, nurses and others, providing for the necessary penalties and compensation in the event of medical errors that cause damage or death to the patient, as well as disciplinary penalties, whether they are for doctors, nurses or others covered by the medical staff description. A committee of senior doctors should be used before it is set up and discussed.

2- Perform a legislative amendment in the provisions of articles 168, 164, 154 of the Kuwaiti Penal Code, which allows for a more severe punishment if the accused is a doctor or any medical staff member, and a legislative amendment in article 164 of the Kuwaiti Penal Code, making imprisonment and punishment in case of serious error by the doctor or any medical staff, and extending the concept of article 168 of the Kuwaiti Penal Code to apply to all medical personnel who cause harm or death to the patient only.

3- Establishing legislative controls related to the recruitment of doctors and nurses from abroad, aiming at obtaining the best competencies, for example, as a condition of obtaining a master’s degree from a reputable university at the international level, in addition to the requirement of practical experience of not less than 10 years in the specialization required from a government hospital in the next country. As for the nursing staff, it is required to graduate from an accredited higher institute of nursing or an accredited government college of nursing, in addition to the practical experience of not less than 10 years in the required field.

4- To establish legislative controls to ensure the impartiality of medical committees formed to investigate any medical error, and to ensure that the medical error file does not reach the Public Prosecutor’s Office without holding any party responsible, otherwise the State represented in the Ministry of Health will be held fully accountable to the injured or his heirs.

5- Legislation or amendments to existing legislation to protect physicians from malicious attacks and complaints by patients or their relatives, and we suggest that this protection be extended to the rest of the medical staff.

References

– As’ad Obaid Al-Jumaili, Error in Civil Medical Responsibility (Jordan, Dar Al-Thaqafa for Publishing and Distribution, 2011), p.

– Ahmad Abdul-Karim Al-Sarayrah, Civil Liability Insurance resulting from Medical Errors, Comparative Study (Amman, Wael Publishing & Distribution, 2012).

– Mustafa Ashraf Mustafa cosmology, medical error concept and its effects in the Sharia (Master Thesis, An-Najah National University, Palestine, 2009) p 104, link: https://bit.ly/2SJcKw7.

– Faisal Ayed Khalaf al-Shura, Medical Error in Jordanian Law (Master Thesis, Middle East University, Jordan, 2015), p. 39 et seq., Link: https://bit.ly/2MhyKgl.

– Mohammed Ali al-Najjar, on the responsibility of doctors, Al-Azhar magazine, (Islamic Research Complex in Al-Azhar, Volume 20, 1368 e).

– Muhammad Azmi al-Bakri, Encyclopedia of Jurisprudence, Judiciary and Legislation in the New Civil Law (Cairo, Mahmoud Publishing House, Volume VIII, no publication date).

– Saleh Abohatham, “Scientific Symposium on Medical Error between Legislation, Control and Accounting” (paper presented at the Scientific Symposium on Medical Error between Legislation, Control and Accounting, Beirut, 7-9 December 2014).

– Fatal anesthesia errors in an interview with Prof. Al-Huraibi, Yemen Medical Journal, 5/11/2018, link: https://bit.ly/32ZMIJG .

– Medical errors between justification and criminalization, Kuwaiti website, 26/8/2015, link: https://bit.ly/2NGFFlB .

– Sami Milad, medical errors and legal liability of the doctor, Al-Qabas newspaper, 8/4/2007, link: https://bit.ly/30kS9Ay .

– The responsibility of the doctor for medical error, Moudi Al-Mousa Law Firm, articles, 13/5/2013, link: https://bit.ly/2S1zWoH

– Abdullah Jassim, jurists: medical errors need to be proven, electronic day, 20/12/2017, link: https://bit.ly/2LveWGw .

– Adel Sami, medical errors obsession worries everyone, the newspaper website, 3/9/2015, link: https://bit.ly/2JvKYio

– Abdullah Jassim, jurists: medical errors need to be proven, electronic day, 20/12/2017, link: https://bit.ly/2LveWGw .

  1. – Abdullah Jassim, jurists: medical errors need to be proven, e-day, 20/12/2017, link:. https: // bit

    .ly / 2LveWGw .

  2. – Adel Sami, medical errors obsession concerns everyone, the newspaper website, 3/9/2015, link: https://bit.ly/2JvKYio .
  3. – Asa’ad Obaid Al-Jumaili, Error in Civil Medical Responsibility (Jordan, Dar Al-Thaqafa for Publishing and Distribution, 2011), p. 109.
  4. – Mustafa Ashraf Mustafa cosmic, medical error concept and its effects in the Sharia, (Master Thesis, An-Najah National University, Palestine, 2009) p 104, link: https://bit.ly/2SJcKw7 .
  5. – Saleh Abohatham, “Scientific Symposium on Medical Error between Legislation, Control and Accounting” (paper presented at the Scientific Symposium on Medical Error between Legislation, Control and Accounting, Beirut, 7-9 December 2014), p. 8.
  6. – Faisal Ayed Khalaf al-Shura, Medical Error in Jordanian Law (Master Thesis, Middle East University, Jordan, 2015), p. 39 et seq., Link: https://bit.ly/2MhyKgl .
  7. – Ahmad Abdul-Karim Al-Sarayreh, Insurance from Civil Liability for Medical Errors, A Comparative Study, (Amman, Wael Publishing & Distribution, 2012), p. 39.
  8. Osama Abdullah Al-Qayed, Civil and Criminal Liability for Physicians, A Comparative Study (Cairo, 2010), p. 41.
  9. – Jodie price , Types of medical errors and how to avoid them , published 3/6/2015, https://bit.ly/2pA2Fnx .
  10. – Ahmad A. Al-Sarayreh, Civil Liability Insurance resulting from Medical Errors, op. Cit., P. 6 ff.
  11. – Fatal anesthesia errors in an interview with Prof. Al-Huraibi, Yemen Medical Journal, 5/11/2018, link: https://bit.ly/32ZMIJG .
  12. – Mohammed Azmi al-Bakri, Encyclopedia of Jurisprudence, Judiciary and Legislation in the New Civil Law (Cairo, Mahmoud Publishing House, Volume VIII, no date of publication), p. 377.
  13. – Mohammed Ali al-Najjar, on the responsibility of doctors, Al-Azhar magazine, (Islamic Research Complex in Al-Azhar, vol. 20, 1368 e) p. 51.
  14. – Saleh M. Al-Otaibi, Medical Errors and Estimation of Compensation in the Saudi System (Master Thesis, Naif Arab University for Security Sciences, Riyadh, 2014), p. 92, link https://bit.ly/2YaFwLV .
  15. – Adel Sami, Medical Errors Obsession Concerns Everyone, op.
  16. – The previous reference
  17. – medical errors :what they are , how they happen , and how to avoid them – an international journal of medicine , volume102 , issue 8, August 2009 , page 516 , published :20 May 2009, https://bit.ly/2Kc411y
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