In the Name of Allāh,

the Entirely Merciful, the Especially Merciful

Praise is due to Allāh, Lord of the worlds, may the blessings and peace be upon our master Muḥammad, the last of prophets, on his family, and all his companions.

Resolution No. 223 (7/23)

Doctor’s Liability for Non-Intentional Medical Errors from an Islamic Perspective

The Council of the International Islamic Fiqh Academy of the Organization of Islamic Cooperation, holding its 23rd session in al-Madinah al-Munawwarah, Kingdom of Saudi Arabia, on 19–23 Ṣafar 1440h (28 October – 1 November 2018),

Having reviewed the resolution of the scientific conference on the Doctor’s Liability for Non-Intentional Medical Errors from an Islamic Perspective, held by the Islamic Organizations for Medical Sciences in Kuwait on 5–7 Jumādā al-Akhirah 1436 (26–28 March 2015),

Having listened to the in-depth discussions,

Resolves

First: Non-Intentional Medical Errors

1. Approval of the definition of a ‘medical error’: a failure in achieving a planned action as intended due to negligence or shortening, and so
2. Approval of the definition of a ‘medical accident’: damage that occurs due to medical intervention, and not caused by the patient’s principal health conditions.
3. Approval of the definition of ‘institutional accidents’ as accidents caused by the synchronous occurrence of factors on different levels leading to the error, in addition to the internal causes related to the health system, which raise a high chance for risks occurrence due to a chain of extenu- ating
4. Approval of the definition of medical profession’s good practices as: “Well established processes and rules which are scientifically and practically rec- ognized constant rules and ”
5. Establishing scientific programs based on extensive studies and research regarding causes and circumstances leading to medical errors, in order to develop appropriate solutions to reduce them as much possible.

6. The need to establish an appropriate environment and circumstances, ex- ternal and internal, with regard to health care to ensure its successful
7. Patients safety must be the principal concern for all health
8. Workshops should be organized for all workers in the health care sector in order to train and nurture their awareness and religious consciousness and to overcome mistakes they face, as such workshops are considered an essential part of the tasks of health practice.
9. Providing necessary means such as machines, laboratories, and informa- tion, and the commitment to international professional protocols, in or- der to contribute to and assure accurate characterization and diagnosis of the disease.
10. Commitment to international labour rules and laws by not exceeding working hours of the medical staff beyond eight hours a day, particular- ly during alternation, in order to preserve doctor’s concentration which affects the patient’s
11. Commitment to reduce the number of patients per doctor as much as possible in order to give the patient adequate time to explain his health
12. The need to periodically review laws and regulations concerning safety guarantees and patients’ protection from medical
13. Confirming the importance of periodic medical equipment mainte- nance by competent specialized professionals to ensure their safety and
14. Work on establishing a higher authority on medical errors, which gathers professionals of different specialities with credited expertise, honesty, and sincerity, affiliated to the relevant One of its tasks should be to investigate medical incidents, whether they have caused injury or not, as quick as possible before its symptoms and effects disappear.

The investigation should be complete in order to determine the cause and effect of the error if damage occurs. Its reports should be submitted to the concerned authorities attached with recommendations to avoid such errors in the future.

15. Encourage doctors to disclose their errors in order to show transparency and clarity that provide a valuable service to the future of medical prac- tice and its success, and to find legal outlets to reduce their
16. Encouraging insiders, aware of medical errors, to report them while en-

suring their legal protection against harassment and revenge.

17. A databank of medical errors need to be established by a select committee of medical doctors, fuqahā (fiqh jurists), and law experts, and passing a law that requires all operating departments in health ministries to report errors and provide the databank with information leading to its causes and
18. A special authority should evaluate the medical staff member if the latter is involved in severe errors that resulted in damage in order to find out more about his working circumstance, equipment, and its
19. Urge the responsible authorities to record and supervise pharmaceuticals and medicines, in order to confirm the adequacy of their procedures, and to track them after usage, especially hazardous ones, and to record any observations on the side effects, drug interactions, or the damage level, if any, and to take necessary measures
20. Raising awareness to change the social perception of medical errors and to accept the possibility of errors in medical practices.
21. Working on creating a digital card with a barcode system for all people in every country, which will be used for all medical actions while con- firming the need to verify the barcode device validity from time to
22. Working on the publication of research, protocols, and working manuals to ascertain patients’ information database, health conditions and
23. The need to commit to gathering and classifying medical practice errors in order to utilize them in developing scientific reports and analysing every type of these errors.
24. Distinguishing between medical errors resulting from doctors’ negligence and medical errors resulting from shortages inside medical institutions, underdevelopment of their systems and devices indispensable for medical
25. Distinguishing between medical errors and the undesirable counteractive medical accidents that are out of doctors’ control and between medical errors and predictable medical complications that could follow medical
26. Considering the doctor liable in cases of shortages and infringements contrary to established medical treatment practices agreed upon among medical experts; as well as in cases when the doctor treats the patient without his permission or the permission of his guardian, or the appro- priate authority, in cases which require

27. Charging the guarantee (compensation) to the person responsible for transgression or negligence as per Shariah and common
28. Designing textbooks and courses on medical practice ethics, and medical errors in all specialities, and how to prevent them, and introduce these as a compulsory subject in medical schools.
29. The doctor should seriously care about the patient, his disease, and the treatment’s consequences for ensuring the patient’s wellbeing based on social circumstances and the nature of the prevalent culture.
30. The doctor should take care of the patient as a full-hearted
31. Preventing doctors from disclosing the medical secrets of their patients. The doctor becomes liable for whatever may result from disclosing se- crets, whether moral or physical See also the Academy resolution no. 79 (10/8), and the recommendation of the symposium of the Islamic Organization for Medical Sciences held in Kuwait in April 1987.

Second: Medical Consent

A: The basic principle is to require medical consent

No exceptions are to be made except for a few cases, which are the following:

1. Urgent cases that have a threat to the patient’s life or his essential body parts when it is not possible to acquire consent from the patient or his
2. Cases in which the general interest requires curing it, or preventing it, such as contagious diseases which represent a threat to public health.
3. If the patient has a mental or psychological illness threatening his life or the lives of others, he must be forced for treatment after taking necessary

B: Medical Consent Waiver

1. If the patient’s guardian refuses to grant consent, the patient’s guardianship will shift to the next guardian in line or to the general guardianship (i.e. government or authorities).
2. In critical cases, when a sane adult patient refuses to grant consent for treatment, he should be informed clearly about the potential risks of his disapproval. The doctor should record this clarification in an official form, and the consent cannot be waved as long as the patient’s mind is still conscious.

1. It is necessary to conduct more research and studies on cases requiring a caesarian birth to save the mother’s life, fetus’s life, or both, such as the nuchal cord wrapping over the fetus’ neck if the mother refuses to grant consent for caesarian birth.

Recommendations

1. Calling the Islamic Organization for Medical Sciences to undertake com- parative studies of the principles of Shariah in the field of medical prac- tice and the liability on medical practice errors, and legal provisions and judicial principles in force in both the Arab and Muslim worlds. The IOMS is also recommended to suggest necessary actions to realize full compatibility between Shariah, these laws and judicial principles.
2. Coordination between the Organization of Islamic Cooperation and the Arab League, and similar organizations in the Muslim world, to study the establishment of a unified legal guiding project on the rulings of medical practices and the liability of its errors, which Arab and Muslim countries will utilize in enacting laws on medical practices, and medical errors.
3. Establishing an independent specialized body in every Arab and Muslim country, which will be distinguished to provide expertise reports in civil and private court lawsuits and in disputes for arbitration committees and tribunals on medical practice errors.
4. Introducing the reconciliation system in criminal lawsuits related to med- ical practice errors at any stage of the lawsuit, in which case reconciliation would result in dropping the criminal lawsuit and dropping the execu- tion of penalties if reconciliation happened at the end of the criminal lawsuit when its verdicts become
5. Broaden the means of solving disputes and recourse to arbitration regard- ing civil liability resulting from medical practice errors.
6. Establishing special tribunals to look into non-criminal civil liability law- suits for errors of doctors and assistants, provided that its jurisdiction be exclusive in this regard.
7. Raising awareness and spreading knowledge on all thematical and oper- ational issues related to the principal teamwork components and rein- forcing them through programs and training in an early stage at medical universities and institutes.
8. Doctors should receive training in practice and reactions (crisis manage- ment) related to developing teamwork knowledge and skills in order to refine the acquired competencies at universities, academies, and

9. Training doctors during the residency in reinforcing the importance of teamwork in health care in order to facilitate transformation towards a safety
10. Health care sector should develop and intensify the lessons acquired from advanced qualifications programs.
11. Doctors’ teamwork competencies should be enhanced through proce- dures of granting licenses for professional practice.
12. License examination by specialized boards should include an evaluation of new doctors’ knowledge of the teamwork components and their com- mon career expectations.
13. Study the establishment of insurance regulations on risks emanating from medical practices to encourage doctors to make more efforts in patient
14. Media and other means of awareness-raising should draw spcial attention to the information on psychological disorders, to treat it early and effi- ciently and to raise awareness on the rights of psychiatric patients.
15. Cooperation between Arab and Muslim countries to issue a unified guid- ing law on psychological health, inspired by Shariah principles, as well as relevant international conventions and principles.
16. The OIC, in coordination with Arab and Muslim governments, should adopt a unified guiding law for mental health, inspired by Shariah prin- ciples and relevant international conventions.
17. Hold a specialized seminar on psychological and mental health to discuss its ethical and legal issues and to conclude with specific recommenda- tions in that regard.
18. Medical institutions should hold periodical meetings for doctors and their assistants, to investigate and study new issues in the field of medical practices, and to exchange views about the problems and obstacles of the medical profession, and to study medical errors, and suggest means and methods to prevent or minimize them.
19. Developing doctors’ skills in communication with patients and their rel- atives in order to achieve the patients’ welfare by following their health timeline and the problems that may occur during medical procedures’

Indeed, Allāh is All-Knowing.