The Legal Dimension of the Borderline between the Error and the Fault Causing Medical Liability of Health Professionals

Abstract

The medical profession is linked to the patient's direct physical safety, and the purpose of intervention of health professionals is to bring the situation back to its level or to relieve pain. Therefore, the essence of health professionals’ obligation is an obligation of means, but that doesn’t mean there’s no medical liability for the doctors when they commit a fault, which is considered the cornerstone for confirming medical liability. For doctors to carry out their activity spontaneously away from anxiety and fear of medical liability, it is necessary to define and understand the fault because the latter is not any act causing damage; before, during, or after the exercise of the medical activity, but there must be a probability of the error, which is considered natural and excludes medical liability. The most important question is whether there is room to consider the error as well as the mistake from the doctor's practice of cosmetics surgeries that are supposed to be the doctor's obligation of result, not an obligation of means. In this case, we cannot talk about mistake rather than error. Therefore, error will be the focus of our discussion to see whether it is synonymous with mistake or independent of it. The doctor and his team must be aware of the facts and principles of mistakes requiring medical liability and the place of error over mistake. For an objective approach, we will refer to the Federal Medical Liability Act No. 4 of 2016 and the analysis of judicial decisions in the Federal Courts and Courts of Appeal in the United Arab Emirates compared to French courts.