Date : 18-04-2019

Question :

When a medical error takes place and a patient dies as a result, is Diyah an obligation?

The Answer :

Praise be to Allah the Lord of the Worlds.

A physician who masters his trade according to its correct rules isn`t liable for medical incidents (death or else) resulting, for instance, from complications of an illness. Ibn Hajar (May Allah be pleased with him) said: "Ibn Suraij mentioned that if treating the patient led to the latter`s death, while the physician masters his trade, then he isn`t held liable, but if he doesn`t master his trade, then he is liable." {Tohfat Al-Mohtaj, 9/197}.

Ash-Shirbini reported that Ibn Al-Monther said: "Scholars are agreed that if the physician doesn`t transgress, then he isn`t held liable." {Moghni al-Mohtaj, 5/539}.

The physician`s liability is limited to the medical error which results from his lack of knowledge in the principles of the profession of medicine or his violation of the rules of treatment agreed upon by medical experts, in which case specialized authorities should be referred to. The eminent scholar Ibn Farhoon, a Maliki, said: "But, if the physician was ignorant, took the liberty of doing what he wasn`t permitted to do, exceeded the allowed limits or was negligent, then he is held liable for the consequences." {Tabsirat Al-Hukkam, 2/340}.

The resolution of the International Islamic Fiqh Academy, on its twenty-third session, stated: "The physician is liable in case of negligence and misconduct that violates the rules agreed upon by medical experts." Misconduct is doing what is impermissible while negligence is not doing what should be done, and in this case, the physician is obliged to pay Diyah for he has transgressed.

However, if the fatality resulted from a medical error, then, in such cases, compensation must be given or Diyah (in case of death), but it isn`t obligatory to implement Qysas, unless it was proven that the physician had intentionally led to the death of the patient, because medical error takes the ruling of accidental killing. Al-Khattabi (May Allah be pleased with him) said: "There is no disagreement that if the physician transgresses and harms the patient, he is held liable….If his actions led to harm, then he is obliged to pay the Diyah and Qysas is waived, because he carried out the treatment with patient`s permission." {Ma`alim As-Sunnan, 4/39}.

If the physician`s action was an act of misconduct and negligence, wasn`t permitted to do so or he was ignorant, then he is obliged to pay Diyah, because, in this case, he must bear the consequences of his transgression. In conclusion, if the physician had failed to adhere to the rules and principles of the medical profession as agreed upon by the medical experts, or he had violated them and led to someone`s death, as a result, then the family of the deceased is entitled to receive Diyah from that physician. In addition, specialized medical authorities are in charge of determining liability for medical errors. And Allah the Almighty knows best.