The Medical Liability Of The Otolaryngologists – UAE
The Medical Liability Of The Otolaryngologists UAE
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In light of the research prepared by the Medical Malpractice Liability Department at Mohamed Al Marzooqi Advocates and Consultancy Law Firm, and from the office experience in representing patients in many claims, doctors in some cases and medical service providers in other times, we find that rulings of the higher courts confirm that estimating the compensation against harm shall be made by the Subject Court but it has to state the elements of harm contributing in calculating the compensation as an adaptation to reality that is subject to the supervision of the Supreme Court- the omission of the judgment to indicate the elements of compensation is grounds for its rescission. It is established as well that the judgments must include what reassures their reviewer that the court has understood facts of the case and its pieces of evidence with foresight and insight, and that it dealt with the pleadings and essential defense they submitted- then to state the reasons for its opinion and its source of judiciary. It shall use all the means in its power to reach the truth of the case facts. It shall not ignore the litigants’ demands to review their aspects of defense. Violating this constitutes an invalidation. It is established as well, according to rules of the Islamic Sharia and jurisprudence of the jurists- that wounds and injuries affect the human body entitle the aggrieved party to blood money, estimated indemnity or government of justice. The blood money is due in case of murder or spoiling the organs’ functions. The indemnity is due in case of harm, or less such as cutting the limbs or spoiling their functions. In other cases of estimated blood money and indemnity, the court may rule for the aggrieved party with a government of justice, a compensation equals the harm affects him, considering the error gravity and compensation against the moral harm, other than the blood money.
The second and third Appellees- working at the first and fourth Appellees respectively- resulted through their negligence, when curing sinusitis and each performing an operation without considering the usual technical and medical principles – in his injuries stated upon in the report of the delegated medical committee, which are:
1- loss of the sense of smell,
2- external deformation of the nose, depression of the tip of the nose,
3- general atrophy of the mucous membrane,
4- posterior septal perforation,
5- widening the maxillary sinus opening,
6- loss of bone in the anterior part of the inferior concha,
7- loss of two thirds of the median concha bone,
8- widening the medial meatal sinus,
9- protuberance from the base of the skull,
10- signs of a small incision in the ears, where a graft was taken to graft the skull. He deserves a full blood money for some of them, and an estimated indemnity or government of justice for the others, in addition to compensation against the moral harms. The challenged ruling has not considered this defense and its judgment was limited to abiding the first and second Appellees jointly by paying an amount of 76666 AED- for an element of compensation against an injury other than the injuries mentioned in the deploring, despite its dependence on the medical committee’s report which includes these injuries. It did not consider this report “that the third Appellee neglected the Appellant’s treatment”- to estimate his contribution in the increase of harms affected the Appellant as a direct reason. In addition, it did not make a decision, positively or negatively, regarding the other elements of harm, or investigate whether the Appellant has already lost his smell sense to deserve a full blood money, according to the medical diagnosis, or not, to clarify the truth in the case- this defects the challenged ruling for deficiency in reasoning that necessitates its recission and referral.
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