Medical Negligence and Malpractice
By: Noura Freihat
1. Definition of Medical Negligence
Medical Negligence is defined as an error resulting from a physician’s oversight, such as administering inappropriate medication or dosage, failing to check for patient allergies, failing to sterilize instruments, or lacking sufficient expertise. It represents a deviation by medical authorities from their prescribed duties and a failure to perform them correctly due to clear neglect, lack of vigilance, and failure to safeguard the patient’s rights. The fundamental duty of the medical field is to preserve the patient’s life and health rights while adhering to the standards of due care and caution.
2. Legal Definition of Medical Error
Article (19) of Decree-Law No. (31) of 2018 defines a medical error as:
“A mistake committed by a practitioner that causes harm to the service recipient due to any of the following:
Ignorance of technical matters that are expected to be known by any practitioner of the same rank and specialization.
Failure to follow recognized medical and health professional rules and standards.
Failure to exercise necessary care.
Negligence, omission, and failure to exercise caution.”
3. Elements and Nature of Liability
Medical errors involve direct harm to human health and body. Recently, litigation and investigations—both in Palestine and abroad—have become prolonged due to the high volume of cases and the difficulty of proving professional “malpractice” under civil liability rules. Furthermore, a persistent sympathy toward physicians often comes at the expense of the victim.
Liability is divided into two main categories:
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Civil Liability: Arising from a breach or neglect of a legally mandated obligation, resulting in damages that require compensation.
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Criminal Liability: Arising when a physician violates a legal rule or commits an act criminalized by law (e.g., organ trafficking, illegal abortions, or “mercy killing”/euthanasia in some jurisdictions).
4. Causes of Medical Errors
Medical errors can stem from numerous factors related to the physician, the patient, or the hospital environment:
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Technical Ignorance: Lack of specialized knowledge.
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Professional Breach: Not following medical protocols.
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Inadequate Consent: Failure to explain treatment or obtain patient approval.
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Psychological Factors: Anxiety, stress, or lack of focus due to physical fatigue.
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Administrative & Technical Failures: Lack of modern equipment, poor sterilization, or slow emergency response.
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Administrative Negligence: Failure to maintain a detailed medical file for each patient.
5. Types of Medical Errors
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Material Error (Physical): Neglect in basic duties of caution, such as leaving surgical instruments inside a patient’s body or using unsterilized tools.
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Technical Error: Neglect of medical principles or ignorance of appropriate methods, such as prescribing a known allergen to a patient.
6. Recommendations for Reducing Medical Errors
To mitigate these risks and ensure legal deterrence, the following is recommended:
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Activation of Laws: Strict application of judicial rulings against those responsible for medical harm.
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Legal Literacy: Promoting legal awareness among patients and establishing accessible complaint centers.
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Neutral Committees: Forming impartial specialized committees to investigate errors transparently.
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Medical Protocols: Establishing clear, detailed protocols where a violation constitutes prima facie evidence of error.
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Strict Monitoring: Regular inspection of medical services and equipment.
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Mandatory Documentation: Obligating the creation of a comprehensive medical file for every patient.
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Central Registry: Maintaining a national registry of medical errors to track the professional history of service providers.
7. Global Context
Medical negligence is a global phenomenon. The World Health Organization (WHO) indicates that healthcare-related errors affect 1 in 10 patients worldwide, meaning 10% of medical service recipients are exposed to some form of error or negligence.
Conclusion: Reporting medical errors is a duty for every patient. It prevents recurrence, ensures accountability for incompetent practitioners, and serves as a deterrent that encourages greater care for human life.