A doctor is not a guarantor of cure — but they are obligated to exercise the necessary medical care according to established scientific standards. Law No. 25 of 1981 on the Practice of Medicine and related laws regulate medical liability in Kuwait.
Obligation of means: a doctor's obligation is one of means, not of result — they are not liable for failure to cure but for negligence or error in treatment.
Contents
1) The Concept of Medical Liability
- Definition: holding a doctor or healthcare practitioner accountable for harm suffered by a patient as a result of professional error in diagnosis, treatment, or surgery.
- Obligation of care: the doctor is obligated to exercise vigilant care at the usual professional standard — not to guarantee a cure.
- Standard: error is measured against the conduct of a doctor of the same level and specialisation in the same circumstances.
- Scope: covers doctors, pharmacists, nurses, lab technicians, and all healthcare practitioners.
2) Elements of Liability
- Error: the doctor's deviation from the usual professional standard — by negligence, recklessness, or lack of precaution.
- Damage: actual harm suffered by the patient — physical, psychological, or financial.
- Causation: a direct link between the doctor's error and the harm that occurred.
Burden of proof: the patient must prove error, damage, and causation — a heavy burden that usually requires medical expert opinion.
3) Types of Medical Error
Common errors
- Diagnostic error (omitting necessary tests).
- Treatment error (wrong dosage or inappropriate medication).
- Surgical error (leaving an instrument behind, injuring a healthy organ).
- Neglecting post-operative follow-up.
Aggravated cases
- Performing surgery without the patient's informed consent.
- Practising medicine without a valid licence.
- Refusing to treat an emergency case.
- Disclosing patient confidentiality without justification.
4) The Medical Liability Committee
- Establishment: a specialised committee at the Ministry of Health that reviews medical-error complaints.
- Composition: specialist doctors and legal experts — examining the case medically and legally.
- Jurisdiction: determining whether a medical error occurred and assessing its severity.
- Report: issues a technical report attached to the case file — relied upon by the judiciary.
- Binding nature: the committee's report is not binding on the court — but carries significant evidentiary weight.
Before filing suit: it is advisable to file a complaint with the Medical Liability Committee first — before filing a lawsuit — as its report strengthens your position.
5) Hospital Liability
- Employer's liability: the hospital is liable for the errors of its doctors and staff — vicarious liability of the employer for the employee's acts.
- Organisational error: inadequate equipment — insufficient staff — poor work organisation.
- Infection: the hospital is liable for hospital-acquired infections if negligence in sterilisation is proven.
- Joint liability: the patient may claim against the doctor and hospital jointly.
6) Compensation
- Material compensation: treatment costs — lost income — future expenses.
- Moral compensation: physical and psychological pain — disfigurement — loss of a limb.
- Diya (blood money): in case of death — assessed according to Islamic jurisprudence rules on diya.
- Arsh: in case of loss of a limb or function — assessed according to Islamic jurisprudence.
Assessment: the court assesses compensation based on the gravity of the error and the extent of the harm — and may appoint a medical expert to evaluate the damage. See contracts and obligations.
7) Criminal Liability
Involuntary manslaughter
- If the medical error leads to the patient's death.
- Imprisonment up to three years and a fine.
- Aggravated if the error was gross.
- Does not preclude civil action (compensation).
Negligent injury
- If the error leads to injury or disability.
- Imprisonment or fine.
- Permanent disability aggravates the penalty.
- The victim may join as a civil party.
8) Practical Guidance
For the injured patient
- Document everything — medical reports, invoices, and photos.
- File a complaint with the Medical Liability Committee at the Ministry of Health.
- Do not settle hastily — assess the damage carefully.
- Appoint a lawyer specialising in medical-error cases.
For the doctor
- Document the patient's informed consent.
- Record every procedure in the medical file accurately.
- Follow approved medical protocols.
- Consult a lawyer immediately if a complaint is filed against you.
Suffered a medical error and need fair compensation? Contact Attorney Meshari Obaid Al-Enezi — Yumnaak Law Firm.
