Respectful Insolence

Who needs malpractice insurance, when you could have Sharia law? Check out this question to an Imam by a Canadian doctor regarding his culpability if a patient of his dies, and the Imam’s answer:

Here’s the question (typos not corrected):

Im a doctor and i want to ask about if i make a mistake that leads to the death of a patient .. is it considered as killing by mistake ? … or just a professional mistake

what i want to ask that if i caused the death of a patient – by mistake – do i need to pay fedia anf fast for tow consequent months ? .. or it is enough to take the punishment stated by law … insurance and such stuff ?


And here’s Mufti Ebrahim Desai’s answer:

A medical doctor and his services fall in the category of Ijaarah (hiring) in Shari’ah. A patient hires the services of a medical doctor. The general principle regarding a hired person is that he is an Ameen (a trusted person). It is expected of him to carry out his services with honesty and trustworthiness. If he makes a pure human mistake and the patient dies, then the doctor will not be sinful.

However, he will have to pay a diyat (blood money) of 100 camels or 1000 Dinars (gold coins) or 10,0000 Dirhams (silver coins) in an Islamic country upon the order of the Qadhi.

and Allah Ta’ala Knows Best

Mufti Ebrahim Desai

In a way, it doesn’t sound all that different from our present malpractice system here in the U.S., where a physician all too often ends up paying paying a judgment even when he did his best and was not at fault in the patient’s death.

(Hat tip: Jim Benton)

Comments

  1. #1 Scott Belyea
    April 14, 2006

    Rumour has it that there may be a few wild camels suriviving in southern British Columbia. Pretty tough to find 100 of them, I’d think.

    If Sharia ever comes to Canada …

    Well, the one time that was proposed in a limited way, it was rejected to what seemed like majority public approval.

  2. #2 Miguelito
    April 14, 2006

    Up until last year, the Ontario government had been considering allowing Sharia-law tribunals to help settle civil matters. After considerable protest by women, who were fearful that the Sharia tribunals would become stacked with extremists, did the Ontario government back off.

    http://www.cbc.ca/story/canada/national/2005/09/09/sharia-protests-20050909.html

    Given that 2/3rds of mosques in Canada have a barrier of sorts to separate men from women during prayers, I have little faith that a panel of moderate judges would be selected or even if the “moderates” could be considered moderate.

  3. #3 fierce lioness
    April 14, 2006

    Not that I expect anyone else to agree with me, but the imam’s answer strikes me as wise.

    He recognizes that because there was no intent to harm, no blame should accrue. But as a matter of justice, because the patient *was* in fact harmed, the patient should receive compensation.

    When someone has been injured, it is normal to want to be made whole again in some way – through an apology, an explanation, and/or reimbursement for the damage. In earlier times people might have paid this moral debt with cows or chickens or land or whatever; in 21st-century America, it’s money that talks.

    Too many doctors conflate the patient’s desire to be made whole with the physician being unfairly forced to assume all the blame. According to the imam, they are not one and the same thing – and I think that’s a pretty astute reading of how patients themselves often feel.

    I don’t blame the doctor and nurses who botched a medical procedure that resulted in my being permanently disfigured. It was done in the context of meaning to help. Their intentions, however, do not change the fact that I have a chunk of my arm missing. An apology or some expression of regret would have been nice; reimbursement for the surgery and the skin graft would have been nice. I got neither.

    We would all be better off if you guys would realize there is a difference between taking the blame for something and taking responsibility for it.

  4. #4 Ali
    April 14, 2006

    I was all ready to roll my eyes at some silly, archaic religious nonsense, but I’ve got to agree with fierce lioness. While Sharia doesn’t properly account for inflation, the spirit of the law stands the test of time.

  5. #5 Julia
    April 14, 2006

    “because the patient *was* in fact harmed, the patient should receive compensation.”

    Does the patient get the compensation? The quote says “pay . . . in an Islamic country,” but it doesn’t exactly say that the money goes to the patient. Does Canada count as an Islamic country, or would the money have to be sent elsewhere?

  6. #6 Urizen
    April 14, 2006

    Fierce lioness, I have to respectfully but vehemently disagree. That the patient should be compensated by the doctor assumes a moral/legal obligation on the part of the doctor to be successful in treating each patient. I’m not opposed to clarifying the distinction between blame and responsibility, but I think both concepts have the aforementioned obligation at their foundation, and I don’t think such an obligation is particularly reasonable. If a doctor is performing to the best of his or her ability and the patient is fully informed of whatever the known risks may be, I don’t think there’s any reasonable basis for assuming that success is necessary in order for the doctor to have fulfilled his responsibility. As I see it, there are two potential ways to distribute the risk of failure. The first would be for a doctor to guarantee success, which is to say that he/she would be compelled to compensate the patient if the treatment/etc. fails. The second would be for the doctor to inform the patient of the risks of the procedure and to take responsibility for performing to the best of his or her abilities. In the former case, the weight of risk falls squarely on the doctor’s shoulders; in the latter case, it falls on the patient. It seems far more reasonable to me that the patient should, assuming he or she is properly informed, be the one to assume the risk in a responsibility sense, i.e. I recognize and acknowledge that there’s a possibility the procedure I’m about to undergo has a possibility of failure or side effects, and as long as the procedure is competently performed, that risk becomes a risk I’m taking, not a risk the doctor is taking.

    This is all to say that I don’t think the blame/responsibility distinction is really the proper one to be making here. If the patient is fully informed and chooses to trust the abilities of the doctor, then the ball is in the doctor’s court as far as performing up to standards, but the responsibility for making the choice in the first place is the patient’s. I’m not trying to be unsympathetic to the patient’s perspective (of course, as I’m not a doctor of any sort), but placing a legal burden for success on doctors seems to me a very bad idea, all in all. Any compensation that is to be made involves the taking of resources (money) from one party and the granting of those resources (money) to another party; you can certainly make the case that in some sense the patient in these situations deserves to be granted resources, but I don’t think the case for requiring taking those resources from the doctor is very solid.

  7. #7 Ahistoricality
    April 14, 2006

    This approach to medical responsibility and error goes back to Hammurrabi’s Code.

    I do think that, consistently applied, the effect would be to discourage doctors from taking on difficult cases.

  8. #8 fierce lioness
    April 14, 2006

    Urizen, you are reading way too much into my post. Nowhere did I say the physician has an obligation to treat successfully.

    What I *did* say was that when a patient is harmed, the just thing is to acknowledge it in some way, not just walk away and leave the patient to deal with the mess.

    I’m a little surprised that the Orackians are taking the imam’s commentary so literally instead of seeing the spiritual lesson it contains.

  9. #9 John Galt
    April 14, 2006

    In addition to URIZEN’s view, there should be reasonable peer review to ensure that a physician is practicing sound medicine. Unfortunately, in any profession, there are a few bad apples. That has been the problem with medicine for many years. Physicians have little desire or energy to police themselves and therein lies the rub, the lawyers will find a niche. But perhaps, it is difficult to criticize a colleague and/or hospitals are concerned about retaliation with lawsuit.

  10. #10 Urizen
    April 14, 2006

    Lioness:

    You argued that “as a matter of justice, because the patient *was* in fact harmed, the patient should receive compensation.” I’m assuming that by ‘compensation’ you don’t just mean ‘an expression of regret at the failed procedure.’ Arguing for mandatory compensation in those circumstances, as I said, assumes that the doctor is under an obligation to succeed; I realize you didn’t explicitly argue for the latter, but it’s a necessary foundation to your argument for compensation. Without such an obligation, there’s no justification for exacting payment from a doctor who makes a mistake if he made the mistake despite working to the best of his abilities. Should mistakes be acknowledged and apologized for? Certainly. That’s not really the same thing as compensation, though–”reimbursement for the damage,” as you suggested.

  11. #11 fierce lioness
    April 14, 2006

    I can see I wasn’t clear. In the paragraph you are referring to, I was summarizing the gist of the imam’s commentary as I understood it.

    My personal reference wasn’t to a failed procedure; the drug did exactly what it was supposed to do. What happened was a procedural mishap that resulted in an injury. For some reason it was never documented in the medical record, so it was not assessed until weeks later. By then a lot of the damage was done. In case you’re thinking I just sat on my duff and didn’t do anything, that wasn’t the case – I reported it promptly and continued to ask about it over the next two months. I don’t want to go into any more detail; it was a doxorubicin extravasation which I am sure Orac knows something about. He can feel free to post comments of his own.

  12. #12 Jason Stokes
    April 14, 2006

    This guy’s a Doctor?

    I hope he passed his medical exams with better scores than he passed his English exams.

  13. #13 Jason Stokes
    April 14, 2006

    Not that I expect anyone else to agree with me, but the imam’s answer strikes me as wise.

    He recognizes that because there was no intent to harm, no blame should accrue. But as a matter of justice, because the patient *was* in fact harmed, the patient should receive compensation.

    In the context of Arab culture, I’m not sure you’re correctly interpreting the motivation. There’s a general pattern in the law for paying “blood money” for accidental deaths caused by someone, irrespective of the intent or “justice” of the act. Here’s a corpus of Muslim laws on blood money. If there’s culpability, this can be matched with “retaliation”, ie, execution.

    While you’re reading, doctors who perform abortions might want to check out this section on one authority’s opinion of the blood money for the killing of a fetus:

    Yahya related to me from Malik from Ibn Shihab from Abu Salama ibn Abd ar-Rahman ibn Awf from Abu Hurayra that a woman from the Hudhayl tribe threw a stone at a woman from the same tribe, and she had a miscarriage. The Messenger of Allah, may Allah bless him and grant him peace, gave a judgement that a slave or slave-girl of fair complexion and excellence should be given to her.

    You think camels are hard to find? Try locating a “slave girl of fair complexion and excellence” in Canada. Seriously, Islam sounds like the kind of religion John Norman would create.

  14. #14 Thursday
    April 15, 2006

    While I’m glad to see that the imam removed the spectre of sin from medical accidents, I’m not convinced that willingly undergoing a surgical procedure should be considered the same as having an electrician fix your television. The variables when dealing with a biological entity are far more complex than the physics of wiring. Surgeons usually give a “percentage success rate” to hedge their bets on what could be considered very basic operations because of those variables. Any time you cut the skin, there’s a chance of infection which _might_ lead to unforseen complications…

    The only people who would be safe from this ruling would be homeopaths and faith healers: “Sorry about your mom, but she obviously just didn’t believe enough.”

    I say this as someone who had two family members not make it off of operating tables. Without evidence of incompetence, I’m not going to blame the surgeons, and I don’t think they should be punished for failure.

  15. #15 Anna in Cairo
    April 20, 2006

    The doctor who wrote the question said he had made a mistake or an error, not that he had used a procedure that ended up not working as well as it could have. There is a difference there. If he made a real mistake and the patient’s death resulted the Fidiya (death payment) thing actually maeks sense and is completely like malpractice payoffs. The camel reference is indeed a bit quaint sounding but the principle is not that weird. the death payment of course could not be given to patient him/herself (being dead) but to the next of kin.

    Death payments are also payable in cases like hitting a person with your car, e.g. and lots of other similar type situations.

    I find Islamic legalism fascinating. Sometimes it does not make a lot of logical sense to me (especially in issues involvign marriage/divorce) but in these issues it seems to be quite similar to civil law in its reasoning and the type of penalties/fines it asks for.

  16. #16 Anna in Cairo
    April 20, 2006

    Also, re the example posted above about the slave girl, Abu Hurayra (father of the little cat which was the guy’s nickname) is a controversial hadith relater among modern Muslims who study these things precisely because a lot of the hadith related by him are inexplicably weird. Also he is the source of a huge number of misogynistic type hadith (such as the infamous the majority in hell are women, or a kingdom ruled by a woman cannot prosper, etc. ones. I find it a lot easier jsut to ignore hadiths that are traced back to him. Even at the time he was questioned by others. Omar Bin Khattab (the second caliph after the death of the PRophet) remarked that ‘Abu Hurayra reports too many hadith’, meaning that he could not possibly have really memorized that much of what the Prophet supposedly said. (Remember all of these are oral traditions. They were not collected in written form until about 200 years after the Prophet’s death, when all of the orgiinal reporters were also dead.)

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