Bahraini Court Judgment
Hatem Elkatan Senior Associate, Litigation
Ayman Haider Trainee Lawyer, Litigation
Under Bahraini law, law doctors must exercise the necessary degree of care and use all means to diagnose a patient’s illness or administer the required treatment to a patient. In this regard, doctors will be liable in the event they are negligent or act in a manner contradictory to customary medical practices (unless it is established that the doctor exercised reasonable care in treating the patient) (as provided for in Article 27 of Decree-Law no. 7 of 1989 concerning the Practice of Human Medicine & Dentistry). This standard of care was applied in a judgment of the Bahraini Cassation Court (in case No. 2016/822 dated 19 February 2018) in distinguishing between the occurrence of common medical complications following treatment by the doctor, on the one hand, and a case of medical malpractice, on the other.
A patient filed a complaint before the National Health Regulatory Authority (NHRA) in Bahrain against a doctor for alleged medical malpractice endangering the patient’s life. The NHRA upheld the complaint and decided to suspend the doctor from practicing medicine for six months. This is the sanction applied by the NHRA where the doctor is not found to be negligent but his or her conduct is the subject of conflicting views between his or her peers. The doctor challenged the disciplinary decision by way of a grievance before NHRA, which was dismissed by a technical committee assigned to review the case. Subsequently, the doctor filed a claim before the Administrative Court at the Ministry of Justice, Islamic Affairs and Waqf requesting the NHRA’s decision to be revoked. The doctor argued that he had exercised the necessary degree of care in treating the patient’s condition.
The Court of First Instance judgment dismissed the doctor’s claim and agreed with the NHRA’s decision. The Court of Appeal upheld the Court of First Instance judgment following an appeal by the doctor.
The doctor filed an appeal before the Court of Cassation. The Court of Cassation overruled the Court of First Instance and Court of Appeal judgments, deciding in favour of the doctor. The doctor argued before the Cassation Court that the appeal judgment did not consider the arguments made by the doctor. In particular, the report that led to the doctor’s suspension (on which the Court of First Instance and Court of Appeal relied in delivering their respective judgments) did not cite any scientific medical opinion or publication of an internationally recognised medical school, but relied instead on the personal opinions of its members. The doctor had submitted guidelines from the Royal College of Obstetricians and Gynecologists (RCOG) and an expert opinion from a leading medical professor specialising in gynecology and fertility treatment in support of his claim that his treatment of the patient was correct from a medical standpoint and complied with best practices in the field of gynecology.
Furthermore, the doctor relied on the recognition in the technical committee’s report that the patient and her husband was informed of the potential complications of treating her condition and they agreed to go ahead with the procedure. In light of the foregoing, the doctor argued that his alleged liability for error or negligence was not established and the NHRA’s decision failed to differentiate between common medical complications following treatment by a doctor and a case of medical malpractice.
The Court of Cassation accepted the doctor’s arguments and upheld his appeal. It noted that Article 27 of Decree-Law no. 7 of 1989 concerning the Practice of Human Medicine & Dentistry provides that a doctor shall not be responsible for the patient’s condition, if it has been proved that he exercised the necessary degree of care and used all reasonable means to diagnose the patient or administer the required treatment. The court also noted that a doctor will be responsible, however, if he makes a mistake that causes injury to the patient because of his or her ignorance of technical matters, or harms the patient due to his or her negligence or failure to provide care to the patient. Thus, the Court of Cassation held that a doctor is only responsible if an alleged case of medical malpractice is attributable to the negligence of the doctor.
“…the Court drew a distinction between achieving a desired result (for which the doctor is not liable) and exercising reasonable care in performing professional obligations (for which the doctor is liable).”
Although the Bahraini Law 7 of 1989 is silent on the issue, the court drew a distinction between achieving a desired result (for which the doctor is not liable) and exercising reasonable care in performing professional obligations (for which the doctor is liable). The court drew this distinction by analogy with Bahraini contract law. In this regard, Article 214 of the Bahraini Civil Code provides:
Subject always to any provision of the law or agreement to the contrary in the case of an obligation to do something, a debtor who is required to preserve a thing, to manage it or to act with prudence in the performance of his obligation, satisfies his obligation if he brings to the performance thereof the care of a reasonable person, even if the objective in view is not achieved.
The debtor always remains liable for fraud or gross negligence.
The court’s judgment echoes its findings in an earlier judgment (Appeal No.82 of 1993), in which it held that: “The liability of a doctor is considered to be similar to contractual liability. The doctor in this contract is not obligated by the contract to fully heal patient as the doctor’s obligation is not a promise to achieve a certain result. However, the doctor will be obligated to exercise reasonable care in healing his patients, reasonable care must be done diligently and such professional knowledge and skill expected of a doctor in his field.”
Where a doctor is found to be negligent, he or she will be under a contractual liability to compensate the patient for the loss and harm the patient has suffered (Article 233 of the Bahraini Civil Code). This compensation will be assessed by the court such as to compensate the patient for the loss and harm caused by the doctor’s negligence.
This judgment is important as it confirms the nature of a doctor’s liability for medical negligence and sets out the test that will be applied by the court. For a doctor to be liable he must have made a mistake that caused injury to the patient because of his or her ignorance of technical matters or negligence or failure to provide care to the patient, (Article 27 of Decree-Law No. 7 of 1989 concerning the Practice of Human Medicine & Dentistry). However, the doctor will not be liable where he or she does not achieve a certain outcome. Where the doctor is found to be liable, he or she will be required to compensate the patient for the resulting loss and harm in line with contractual principles.
For further information, please contact Hatem Elkatan and Ayman Haider.
Published in June 2022