The criminal liability of the physicians for the professional works

The problem of the medical errors is no longer confined to its cadres in the medical field, it is a social problem that is of special importance to all the categories and classes of the society being a concern for the people of law and justice. In some cases, medical errors result in the death or disability of the patients, leading to search how to address these errors and the risks that result from them.

The practice of medical and surgical work by the physician requires the relation with the safety of the human body, such as examining the patient’s body, describing the medications, giving some narcotic drugs, conducting a surgery, removing parts of the human body’s tissues or samples of his blood for analysis. Theses acts –if done by a regular person -form crimes under the penal laws, as well as the laws of the practice of the medical professions.

However, the real problem is when the patient’s life is contacted by the physician, it is known that physicians intentionally commit intentional errors such as abortions, falsification of reports, failure to provide assistance to people in case of danger, and other cases, the non-intentional errors were identified in the following cases.

-The case of carelessness, negligence and lack of attention. 

- Non- precaution, and failure to observe the laws and regulations regulating the profession of practicing medicine.

Therefore, this profession should be regulated through observance to avoid these cases, which is known as the criminal liability of the physician, to reduce the medical errors and impose sanctions commensurate with the action taken against the patient.

The relationship between the physician and the patient is a moral and legal relationship ,obligating him to exercise caution and care in order not to harm the others, and any breach that results in harm leads to the criminal accountability of the physician for this behavior. For example, if the physician describes an inappropriate medication for the patient or makes an error in the detection of the doses required for the treatment (Diagnostic errors) or increases the narcotic material for the patient, and this resulted in a harm ; so he bears the criminal liability.

The French courts judged by the criminal liability on the physician for performing a complete surgical operation, while partial surgery was possible, and so they imposed the criminal liability of the physician.

The Bahraini legislation has stated these trends by refraining from the discussions that lead to making the error by the physician or not, by leaving the matter to the competent committee to reach the appropriate decisions in this regard, in accordance with Article no. 5 of the Decree-Law no. (7) of the year 1989 about the practice of human medicine and dentistry.

Article no.(27) of this decree determines the liability of the physician in the following cases:

1- If he commits an error that causes harm to the patient as a result of ignorance of technical or practical matters that every physician is supposed to know.

2- If the patient is harmed as a result of the physician’s negligence or lack of care.

3- If he performs on his patients experiments or scientific researches that are not approved by the Ministry of Health, and these would cause harm to them.

The committee provided for in Article no.5 of this law shall be responsible for determining the occurrence of the errors referred to.

We conclude from the above that the legislator has basically defined the errors of the physician as a result of the practice of medical work without entering the technical issues that have been left to the experienced physicians to detect some technical aspects that may relate to the error and clarify the liability of the physician for his work ,and here lies another problem in the difficulty of proving the medical error.

The provisions of the law are devoid of any definition of the medical error in particular, although they have addressed the concept of the error in general in the Bahraini Penal Code where the legislator only mentioned various forms and examples of the error in general, such as negligence, these forms were mentioned as an example only.

The physician in this form will then be subject to the general rules that are applied to the regular person but in front of the special nature of the profession of medicine ; it is no longer acceptable to be equal to the regular person being required to exercise a higher degree of precaution, the seriousness of the profession of medicine based on the human body that is protected by all laws and constitutions , imposing the need to adopt new rules in the criminal liability in a way that reflects the nature of the seriousness of the medical profession, on one hand, and on the other hand provides the penal protection for the patients from the errors of the physicians which destroy their right to life and safety of the body.

But the question remains, are these applicable laws are sufficient for the determination of the error being committed intentionally or unintentionally to deter the medical errors? or it is necessary to speed up the privatization of the medical profession by means of independent legislative texts, by passing a law that regulates this profession in a legal manner that ensures the protection of the physician and the patient, and hence the patient avoids the scourge of harms caused by the medical errors.

With seeking to the establishment of a specialized judiciary, or at least the composition of the judges in this very complex area of the criminal accountability for the medical errors.