Medical Malpractice and the Law

The responsibility they have toward the sanctity of human life puts medical practitioners under more scrutiny than any other professionals. A physician is someone who, in the eyes of his patients and the institution he works for, possesses the competence and expertise to heal the sick. Unfortunately, errors in the medical practice are often irrevocable and leave the physicians with little, or any chance to undo the medical damage inflicted on patients.

According to the Lebanese law, the professional malpractice is the “error committed by members of a profession during their practice and whereby they breach the regular professional conduct or the duty of care expected of them as per the rules in force.”

Article 122 of the Code of Obligations and Contracts stipulates that, under the principle of general liability, any act that yields an illicit harm to the interest of others should be compensated when committed by a judicious and reasonable person. If the harm is caused by a non-judicious person, and if the affected party fails to obtain compensation from the caretakers of that person, the judge can order the offender to pay a fair compensation to the affected party after considering the conditions of both parties.

The physicians must advocate the best treatment, which means dedicating the utmost care that falls in line with the proper standards of practice and employing all the means available to the benefit of the patients. However, recovery is not always a function of the care administered by the medical provider and can be affected by other elements. In other words, even the best medical performance can sometimes fail to generate the desired outcome in the recipient, due to a multitude of reasons. Hence, the physician is only to be blamed and held accountable when he has clearly committed an error or neglected the standards of practice.

Subsequently, medical errors result from one of two cases:

Errors arising from the negligence of human duties.

• Failure to respond the rescue call. The Code of Medical Ethics No. 288 dated February 14, 1994 prescribes that the physician, however his specialty, should be committed to provide assistance to any injured person or patient who happen to be at risk under his watch and to ensure that they receive the appropriate medical aid, except in cases of force majeure.
• Failure to obtain the approval of the patient.
• Disclosure of confidential medical information.
• Decision to use euthanasia on a patient.
• Decision to perform in-vitro fertilization.
• Failure to inform the patient about his health condition so the patient can balance between the prospective risks and benefits as per the Code of Patient Rights and Informed Consent No. 574, dated February 11, 2004.

Errors arising from the negligence of technical duties.

• Misdiagnosis
• Wrong treatment choice
• Surgical errors
• Patient safety guarantee

Substantiation of Medical Malpractice Claims

In most cases, plaintiffs fail to prove the occurrence of a malpractice act, as it is difficult to provide the evidence-based facts necessary for the judge to draw inferences, form opinions and deliver a ruling accordingly. Unfortunately, the patient is usually the weakest link in the chain for in all likelihood he happens to be partly or completely unconscious when the error takes place, not to mention that he might be suffering from poor health conditions or coming from a modest socioeconomic background that doesn’t allow him to bear the cost of prosecuting the responsible physician or medical provider.

Medical Errors

There are probably tens, even hundreds, of cases where deaths and injuries have been sustained due to medical negligence but most of these are swept under the rug.

Former Head of the Lebanese Order of Physicians, Dr. Sharaf Abou Sharaf confirmed the existence of tragic medical errors committed by physicians or hospitals stressing that the Order of Physicians addresses this plight through its investigative committee which probes into the patient complaints and grievances it receives. He added that an average of 130 to 150 complaints is filed annually and that negligent physicians are responsible for 30% of the cases. Those are brought to accountability through a series of actions ranging from warnings to expulsions. Four physicians were dismissed from the Order a month ago on grounds of malpractice.

Below are samples of the medical malpractices cited in local newspapers:

• Hoda Hallaq, from An-Nabi town in Qada’a Al-Mennieh, died due to alleged medical errors in one of Tripoli’s hospitals where she was admitted to treat the bruises she sustained while doing household chores. (December 2009)
• Palestinian Claudia Tahhan, from Ain el-Helwi Camp, died during a c-section performed in a hospital affiliated with the Palestinian Red Crescent. (September 2012)
• Salam Houseeini who admitted herself to one of Tyre’s hospital to apply a cast to her fractured leg falls into a coma due to wrong anesthesia dosage. (October 2011)
• Medical negligence kills Rita Jebrael, who was seven months pregnant, and her unborn baby. The obstetrician was released on bail amounting to LBP 50 million (May 2012).