Kuwait Court of Cassation principle number 505

Summary: - A physician’s liability for professional error or negligence. Its criterion. Definitive proof that, through ignorance or carelessness, his conduct departed from the established principles of medical practice and its fundamental scientific rules that admit of no debate or disagreement, and the existence of a causal link between that error and the harm sustained by the patient. - Assessment of the existence or absence of error or the report giving rise to liability, and of a causal relationship between it and the harm. Questions of fact. Within the authority of the trial court without review. Condition thereof. - The expert report submitted in the proceedings. An item of evidence. Within its authority, the trial court may adopt it, discard it, or adopt some of it to the exclusion of the remainder. Condition thereof. It is not obliged to grant a request to appoint another expert or state why that request was not granted where it finds in the case papers and the report upon which it relied that which forms its conviction as to the view it reached. Rule: It is established in the jurisprudence of this Court that the criterion for a physician’s liability for professional error or negligence is that it be definitively established that, through ignorance or carelessness, his conduct contravened the established principles of medical practice and its fundamental scientific rules that admit of no debate or disagreement, and that there be a causal link between that error and the harm sustained by the patient. Assessment of the existence or absence of error or the report giving rise to liability, and of a causal relationship between it and the harm, are questions of fact falling within the trial court’s discretion without review, provided that its inference is reasonable and based on what is established in the papers. Within that authority, it may adopt the expert report submitted in the proceedings as an item of evidence therein whenever it is satisfied with it and convinced of the correctness of its conclusion, based on the reasons it sets out; or it may discard it, or adopt part and disregard the other part. Thereafter, it is not obliged to grant a request to appoint another expert or state the reason for not granting that request, provided it has found in the case papers, including the expert report upon which it relied, sufficient grounds for its conviction as to the view it reached.