Physician’s Liability

1.1 Practicing Medicine Without Qualification

Imam Abu Dawoud, Imam Nisa’i, and Imam ibn Maja reported from the narration of Amru-bnu Shu’aib that God’s Messenger, peace and blessings be upon him, said: “Whosoever claims to be a physician, though unknown to such profession, is subject to personal liability (damin).”

1.2 Medicine (Tibb) in Language

The above prophetic saying deals with three aspects: (1) linguistic; (2) jurisprudential; and (3) medical. As for the linguistic interpretation, and as in the English language, the word tibb in the Arabic language carries several meanings, among them: to amend, restore, adjust, improve, correct, as well as kindness, expertise, judiciousness, skillfulness, dexterousness, tactfulness, resourcefulness, competence, maturity, sagaciousness, habit, regular practice, perspicacity, intelligence, sophistication, cleverness, efficiency, ability to negotiate, mastering with consummate skills, finesse, as well as aspiration and glad tidings.

Besides nouns related to the above list, tabib (physician) in Arabic also could mean: medicine man, or sorcerer, while illness offensiveness, disease, weariness, affliction, falling in love, and disconsolation. Arabs used the term sick also to mean: sick at heart, enamored, in love, soul-sick, sore-heart, discontented, satiated, crazy, and so forth. Using the idiom tibb to mean falling in love, the Arab poet al-Hamasi said:

If I am sick,* then let this be my lasting illness

and, if I am bewitched,** then let it be an unbreakable spell.

The term ‘claim’ used by God’s Messenger, peace and blessings be upon him, to mean ‘profess to be a physician,’ also means: self-proclaim, allege, purport, or fake. For the act of claiming something one does not have, whether he does so intentionally or unintentionally, can possibly still bring about harmful results. It also means affectation and unnaturalness, which is seen in someone who compels himself to act as a physician, when he does not possess the naturalness and qualifications of the practitioners of such profession. This includes knowledge, balance, confidence, patience, forbearance, fear of wrongdoing, and similar professional characteristics, besides mastering the use of the tools of the profession.

*Sick: madly in love; Arb. Matbub.

**Bewitched: Arb. Mashur; matbub.

1.3 Liability of Physicians in Islamic Medical Jurisprudence

According to Islamic jurisprudence (Shari’a), the liability of a self-professed physician includes: infringement, felony, deception, and endangering others’ lives. Such act also proves that the ‘felon’, in this case, cares little about human life, and irresponsibly hastens to indulge in a profession about which he may have hidden motives, or for merely monetary gains. In such case, he deceives the patient at a time when his morale is very weak, and his desire for recovery is strong. The ‘felon’, in this case, is liable for all of the above, besides other incriminating charges, and must pay compensation for whatever damages he caused. The majority of Muslim scholars agree to that effect. However, in a different view, al-Khattabi* added: “I do not know of a precedent concerning a different verdict for a self-professed physician besides the above. Nevertheless, the judgment may be suspended, because permission to act was given to him by the patient, and he would not have been able to operate without such permission, and the patient’s failure to investigate the credentials of his physician remains his own fault.”

*Al-Khattabi, ibn Khabaza, Maimoun bin ‘Ali, d. 637 C.E.

1.4 The Five Categories of Physicians

Adverse results, or ‘mistakes’ rendered by physicians vis-à-vis the patients may be classified in five categories: (1) a physician who is highly trained, who adheres to the ethics of his profession, and who performed his services according to the rules, though according to the Divine Will, the patient’s destiny took an adverse and consequently his condition aggravated, resulting in the loss of a common natural ability, an organ, or a limb, or perhaps whose health complications could have led to his death. In such case, all Muslim scholars consent that the physician is not liable. Aggravation also can be caused by a pathogenic organism (Arb. Siraya), or by another causative agent. The same verdict is given in the case of circumcision (posthetomy), for example. If a qualified physician applies his expertise, and performs the operation on a child at a suitable age and time, and if after the surgical operation, the child should suffer from complications, or if such complications cause permanent injury to the child’s reproductive organ, the physician is still acquitted from any liability. The same opinion applies in the case of lancination (Arb. Batt), and whether the patient is mentally sound (orthophrenic), or otherwise, still, according to Islamic laws, the expert physician is not liable.

Such is the Islamic jurisprudential verdict in any operation or treatment consented to by the patient (Arb. Siraya ma’thouna or waiver). Hence, the benefits suggested by the prophetic guidance to seek the help of the best qualified person in every field are most praiseworthy, and even under such circumstances, should anything go against the physician’s plans, this will be attributed to the ‘Act of God’.

1.5 Liability According to The Four Imams

Imam Abu Hanifa, and Imam al-Shafi’i, both agree that contagion resulting from correctly performing one’s duty is not subject to compensation, while any damages resulting from felony, imposture, or malpractice entitle the patient, or in the case of his death, his family, to compensation. Furthermore, concerning the question of personal liability, Imam al-Shafi’i made an exception of the death of a rented animal for business or travel, in which scenario, if the animal dies as a result of abuse, or during the course of a journey, the renter is still liable for full payment.

In essence, the rule of liability as agreed upon by the host of Muslim scholars provides that consequential damages (siraya-tu jinaya), are subject to liability, while occupational mishap, complications, or losses (siraya-tul wajib) are not subject to restitution by the physician. The difference in opinion between the four scholars is that Imam Abu Hanifa made the rule absolute, and considered that the patient’s consent is given as a trust in the ability of the physician to perform; Imam al-Shafi’i excluded the ‘Act of God’ from personal liability; while Imam Ahmad and Imam Malik, God bless them all, considered the patient’s consent the needed element to absolve the physician from any liability.

1.6 Liability of A Felon

(2) The second category of a liability is that of an impostor or of an ignorant person, who is able to deceptively convince the patient of his ability to cure him. As a result, the patient may die, or his illness may compound. In this case, if the patient knew that his attendant is not a physician, and if he consented to the suggested treatment, then there is no liability. This determination does not contradict the above prophetic saying. However, if the patient unsuspectingly thinks that the person offering his services is a physician, or if the latter convinces the patient, by implied presentation, coercion, or by advocating firm knowledge in the matter, or if the felon prescribes a remedy, and if upon using it, the patient suffers from complications, then the violator is liable as clearly cited in the above prophetic saying.

1.7 Liability for Accidental Perpetration

(3) The third category of liability is that of a learned and experienced physician who performs his services according to the prescribed rules, and if accidentally his hand reaches to a healthy part of the patient’s body, and damages it by mistake, the physician is liable. In the abovementioned ruling, during circumcision for example, if the physician, by mistake, inflicts a cut in the urethra, or if his blade accidentally damages the scrotum or the testes of the child, the physician is held liable for the damages, and must compensate the patient, or his family. According to the Islamic law, this is called ‘accidental perpetration’ (jinayatu khata’).

1.8 Liability for Giving The Wrong medicine

(4) The fourth category of liability is that of a well-trained and learned physician who attempts his best, and still makes an incorrect diagnosis, or prescribes a harmful medicine by mistake. As a result of his decision, the patient suffers from complications, and if the medicine culminates in the patient’s death, the liability remains that of the physician. However, in this case, the compensation may be paid by either the physician or by the Muslim treasury (bait-ul mal). One of the precedents applying to this situation was established by Imam Ahmad in reference to a mistake of judgment made by a ruler or a judge.

1.9 Liability for Operating Without The Patient’s Consent

(5) The fifth category of liability is that of a well-trained and learned physician who performs his services according to the prescribed rules, though, in the case of circumcision, or in the case of operating on a minor, or on a mentally-retarded person, for example, the physician fails to obtain consent from the family, and should the patient or the child suffer from complications or losses, the physician is definitely liable. However, if the mentally-retarded, or a pubescent youth gives permission for the physician to operate on him as a charity, then the physician’s liability can either be established or withheld. In this case, the physician is doing charity, because the person with good intent should not be persecuted for consequential damages. The opinions of Muslim scholars vary in this case. The most strict of opinions requires the physician to compensate the patient or his family, whether he did obtain permission from the youth or not. In this case, some theologians consider it as an infraction, a violation of the patient’s innate rights, and a professional malpractice.

2. Who Is A Physician (Tabib)?

In the abovementioned prophetic saying: “Whosoever claims to be a physician,” the Arabic word tatabbaba used by God’s Messenger, peace and blessings be upon him, implies: (1) one who diagnoses people’s illnesses, treats their illness with his advice and prescriptions, sells herbs and herbal medicines, dispenses balms, stimulants, drugs, antidotes, cathartics, emetics, cough medicines, or any palliative, and who also advises customers on their dosage and usage, also known in Arabic as taba’i’i or specialist in natural medicin; (2) a practitioner of any of the branches of the healing arts, including manufacturers and sellers of medicinal formulas; (3) a surgeon; (4) an orthopedist; (5) a veterinarian; or any related or known therapeutic medical practitioners, including faith healing.

3. Rules of Medical Diagnosis and Treatment

An experienced and intelligent physician follows twenty rules in diagnosing an illness and in treating the patient, including:

1. Firstly, he determines and classifies the kind of illness.

2. Investigates the aetiology of the disease, its origin, and cause.

3. Investigate the body’s constitution, the patient’s present condition, and his points of strength and weakness. If the patient’s condition is able to combat the disease, the physician should abstain from, or delay, prescribing any medicines.

4. Examines the balance of humors.

5. Identifies the condition of the corrupt humor.

6. Considers the age of the patient.

7. Considers his habits.

8. Considers the season and time of the year, and what treatment can be more effective then.

9. Considers the motherland of the patient, and kind of soil he grew up in.

10. Considers the living conditions and level of air pollution surrounding the patient.

11. Defines the kind of restorative the patient can sustain.

12. Determines the potency of the medicine he intends to prescribe, and the necessary dosage needed to overcome the disease.

13. The physician’s goal should not be limited to overcoming the symptoms or isolating them, but instead, concentrate on expelling the illness in a way that will not promote aggravations, or more serious side effects. In such case, radical elimination of the illness requires gradual decrease of its intensity, before deciding whether surgery is needed, or whether a different kind of treatment is possible, such as in the example of varicose veins, except in serious cases.

14. In common situations, the physician must use his wisdom in prescribing the most simple of treatments before deciding on upgrading its potency. For example, it should be the physician’s pleasure to commence by addressing the illness by balancing the patient’s meals before treating him with dietary supplements, and he should prescribe simple drugs before prescribing compound drugs, etcetera.

15. The physician must study the disease and decide whether it can be treated or not. For a chronic illness, the physician’s input must be limited to reducing pain and suffering when possible, to isolating the disease, to limiting its damage when possible, and to reducing the possibility of its spreading to others. The physician also should respect himself and the profession and not hasten to use a futile treatment for cheap monetary gains.

16. The physician should not attempt the purgation of intemperaments or corrupt humors (akhlat) before their proper maturation; instead, he must await their full coction before resorting to purgation.

17. The physician also must have knowledge of the various diseases of the hearts and souls, the wisdom to deal with them, and their effective treatments. Having such knowledge plays a major role in the healing process, particularly in dealing with emotional stress resulting from illness. Such is the accomplished physician (hakim). As for a practitioner who lacks such expertise, and even if he were skilled at diagnosing the disease and prescribing the proper antidote, still, he will only be treating half of the illness. In fact, an accomplished physician, or a tabib kamil, must inquire about the condition of his patient’s heart, moral standing, piety, faith, devotion, gratitude, patience, spiritual goals, attachments to the ephemeral world, love for, and longing to meet his Lord, otherwise, he is not a true physician, instead he is a non-accomplished practitioner of the medical profession (Arb. Tabib qasir). Furthermore, the best cures for people’s illnesses remain in the remembrance of God Almighty, good deeds, charity, prayers, invocations of the Divine Attributes, and repentance. Such appeals have a great importance in repelling illnesses before they occur, and God willing, in effecting a cure for one’s illnesses. In fact, enjoying a healthy body is better than using the best natural remedies, though all of that depends on one’s psychological aptitude, faith, and willingness to hearken to the call of his Creator.

18. The physician must have compassion for the patient, and must treat him with kindness and understanding.

19. The physician must resort to natural remedies as well as spiritual ones. He must use his intelligence, psychological techniques, spiritual and ideological resourcefulness, and even mental persuasion of the patient that he will be well, or that his affliction will shortly pass. In fact, an accomplished physician will use any permissible technique to help the recovery of his patient; and finally,

20. The physician must carry on his goal of treating the patient, pursuing the six essential prerequisites of his profession, which are: (a) cultivating the patient’s present strength; (b) helping the patient regain the forfeited portion of his natural abilities as well as possible; (c) eliminating the cause of the disease when possible; (d) halting any further complications; (e) in the case of aggravated risks, choosing the lesser risk to treat the greater one; (f) and taking the course of the lesser danger to eliminate the possibility of a greater one. These six rules are the core of treating the patient. A physician who does not champion such rules is not even a physician –God knows best.

4. Pathology of A Disease

A disease goes through four pathological phases: (1) anlage, or the beginning of a disease; (2) pathobolism, or the progression path of a disease; (3) full maturation; and (4) its ebbing. A physician (tabib or taba’i’i) must give particular consideration to each one of these stages, and treat them accordingly. For instance, if at the early stages of a disease, he finds that the patient’s bowel movement is slackening, he must prescribe the needed aperients and cathartics to speed coction. Otherwise, if he fails to do so at the inception of the disease for adverse reasons, he must avoid doing so when the disease is progressing. Instead, he should wait for its full maturation and stabilization before attempting purgation. This will help the body concentrate its strength at fighting the disease, and when the disease is stabilized, the physician may then pursue purgation and the elimination of the cause when the disease is weak.

5. The Ethical Physician, or Taba’i’i

It is imperative for a skilled physician, or a taba’i’i, to follow simple procedures before attempting complex ones, and unless he fears complications, or rapid deterioration of the patient’s condition, he must prescribe simple remedies before attempting compound ones, and deal with dietary approach before prescribing drugs. Under adverse conditions, the physician must prescribe the appropriate dosage with sensitivity, so that the body becomes less acclimatized to the drug, and more accommodative of its purpose. The physician or taba’i’i must ascertain whether the disease is hot or cold, and he must not be tempted to experiment with any drug unless he is confident about its performance: (1) Assuming that the disease has compound symptoms, he should start with the most dominant one first. For example, when ulcer of the stomach is combined with internal inflammation, he should first work at abating the fever and inflammation before treating the ulcerous condition. (2) In another example, if he is treating septicophlobitis, resulting in blood putrefaction combined with acute inflammation of the veins, here again, he must abate the fever and inflammation first. (3) If he is treating a chronic illness with aggravated symptoms, mindful of the deep-seated condition –unless the symptoms are stronger than the disease, as in the case of colibacillosis (Arb. qawlanj), the physician usually treats the likely colic obstruction first, otherwise, he may commence by treating the pain, then advances to treating the colic obstruction. If he can pursue a natural treatment of detoxification by abstinence from food, by fast, or rest, he should forego purgation. Like that, to sustain a condition, he must balance it with its coequal, and to improve a condition, he must treat it with its opposite.


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