Kuwait Court of Cassation principle number 493

Summary: - A physician’s obligation in treating his patients. An obligation to exercise care, not an obligation to achieve a result. His liability for his technical error if the patient suffers harm as a result. The reason: striking a balance between physicians’ need for reassurance and the patient’s need for protection. Its implication: the basis of a physician’s liability is proof that, through ignorance or negligence, his conduct contravened the established principles and fundamental rules of medical practice. Assessment of the existence of error or negligence and a causal relationship between it and the harm. A matter of fact. - Absence of error in treatment and establishment that surgical intervention is optional for the patient, for which the physician is not liable, according to the forensic medical report. The challenged judgment’s conclusion that the subordinates of the second appellant, in his official capacity, were at fault, based on the medical committee’s report drawing the treating physicians’ attention, which did not indicate that the absence of surgical intervention was what caused the harm. A contradiction of what is established in the papers requiring cassation of the judgment. Rule: It is established that a physician’s obligation in treating his patients is not an obligation to achieve a result but rather an obligation to exercise sincere care towards their recovery, and that he is nevertheless liable for his technical error if the patient suffers harm as a result. This is because a balance must be struck between physicians’ need for reassurance, confidence and freedom in practising their work and the patient’s need for protection from their errors. However, the basis of a physician’s liability for his professional error is that it be established with certainty and clarity that, through ignorance or negligence, his conduct contravened the established principles of medical practice and its fundamental rules in which there is no room or disagreement. Assessment of the existence of the negation of error or negligence giving rise to liability and of a causal relationship between it and the harm is a matter of fact falling within the authority of the court of merits, without review, provided that its inference is reasonable and based on what is established in the papers. The forensic medical report stated that the respondent sustained, on 15/3/2011, a fracture of the lower end of the radius at the left wrist, and was treated conservatively by application of a splint and repeated monitoring by imaging and X-rays, a procedure consistent with medical principles in a case such as the respondent’s state of health and age; and that displacement at the fracture site is something that may occur without any error in the treatment of his condition causing harm to the patient, and the procedural violation in surgical intervention is a matter optional for the patient for which the physician is not liable. Since the challenged judgment based its ruling establishing fault on the part of the subordinates of the second appellant, in his official capacity, on what the medical committee’s report stated concerning drawing the treating physicians’ attention to the failure to mention surgical intervention, which error caused him harm, it contradicted the conclusion reached by the medical report established in the papers, thereby rendering it defective and requiring its cassation.