Responsibility of doctors as viewed by Jurists

Responsibility of doctors as viewed by Jurists

His Eminence

    1. Responsibilities vary in importance and gravity according to impacts and results. It is indisputable that the responsibility shouldered by doctors is considered the greatest, because they are the guardians of souls and bodies of people, and because people are cured, God willing, from the most incurable and severest diseases through them. Any error or neglect on their part may lead to delay in recovery, or to ruin and death.
    2. The medical profession strikes deep roots along thousands of years, as man, at any time and in any place, seeks to be cured of diseases and may sacrifice all his property in pursuit of recovery. Therefore, health is a matchless blessing whose value is not perfectly known except by those who suffer the agonies of disease.

The honourable Hadith says:

“There are two blessings which many people lose: (they are) Health and free time for doing good”.

The divine Mercy of Allah, ordained for His subjects that some people exist, at all times and every where, and be successful in knowing the medicine that cures diseases and maladies.

If the miracles worked by Prophets are compatible with the practices in which their folk were skillful, we find that a large portion of the miracles of Jesus Christ, Peace be upon him, pertains to medicine because this profession, at his time, topped the other professions in which his kinsfolk were skillful.

Allah says:

AND CALL TO MIND WHAT TIME ALLAH WILL SAY: O JESUS, SON OF MARY, REMEMBER MY FAVOUR UNTO THEE AND UNTO THINE MOTHER WHEN I AIDED THEE WITH THE HOLY SPIRIT SO THAT THOU SPAKEST UNTO MANKIND IN THE CRADLE AND IN MATURITY, AND WHEN I TAUGHT THEE

THE BOOK AND WISDOM AND THE TORAH AND THE BIBLE, AND WHEN THOU FORMEDST OUT OF CLAY AS THOUGH THE LIKENESS OF A BIRD BY MY COMMAND, AND THOU BREATHEDEST THEREINTO AND IT BECAME A BIRD BY MY COMMAND; AND THOU HEALDEST THE BLIND FROM BIRTH AND THE LEPER BY COMMAND; AND WHEN THOU CAUSEDEST THE DEAD TO COME FORTH BY MY COMMAND..(1)

“The Law” on medicine, a book written by Avicenna, who died in 428 A.H., is considered one of the original medical references in Europe, to the extent that no medical diploma was awarded unless the candidate perfectly knows all theories included in this precious Book, which was translated into various languages.

And may Allah have mercy upon he who said: “The science of medicine entered Europe with an Arab Turban, but came back to us with a hat”. Reviewing the Introduction of Ibn Khadldun, one will find good words on the science of medicine, its various domains and methods of treatment, and also on the most famous books on this science (2).

 

    1. The Sharia of Islam ordained treatment of diseases, and mentioned several methods of treatment, among which are the following:

A. To seek the proper medicine through a reliable doctor, well qualified in this profession.

 

Al Bukhari and Muslim related on the authority of Abu-Huraira, that the Prophet, said:

“No disease Allah created, but that He created its treatment”.

In another account

“There is a remedy for every malady, and when the remedy is applied to the disease it is cured with the permission of Allah, the Exalted and Glorious”.

B. To take preventive measures against things leading to diseases through quarantine, and keeping away from those carrying contagious diseases.

The two Sheikhs Al-Bukhari and Muslim related – on the authority of Aisha – may Allah be pleased with her, she said:

“Plague was a punishment or torture which Allah sent on the children of Israel or on some people before you. So If you hear of its spread in a land, don’t approach it, and if a plague should appear in a land where you are present, then don’t leave that land in order to run away from it (i.e. plague)”.

When the companions, disagreed upon entering a region of Mesopotamia where the plague spread, Abdul-Rahman Ibn Auf said: “I have some knowledge about this. I heard the Messenger of Allah, may the blessings and peace of Allah be upon him, say:

“If you hear about it (an outbreak of plague) in a land, do not go to it, but if a plague breaks out in a country where you are staying, do not run away from it”.

    1. It there are good qualities and noble characteristics which should be observed in dealing with others, the foremost among people who should enjoy such good qualities must be with greater reason doctors.

On top of such qualities are the following:

A. Mercy, tender-heartedness, gentleness and patience. Doctors should stick to such characteristics because they deal with people inflicted with illness which makes them psychologically stressed.

It is indisputable that such patients are the foremost among other people who should receive due care, mercy and leniency, especially from doctors to whom they are entrusted if a doctor loses such qualities, he then loses the most important characteristic in his profession.

B. Among the most important qualities which a doctor should observe is honesty in the broadest sense.

The doctor should guide the patient to that which will benefit him in absolute honesty and precision. He should not divulge patient’s secrets unless there is a necessity. He should exert his utmost to make the patient comfortable and lead him to recovery.

    1. Jurists specified certain conditions for those who profess the medical practice. They have defined doctors’ rights and duties, and cited many examples of penalties against those who act in transgression against this sublime profession.

Among the conditions laid down by jurists for those professing the medical practice is that the doctor should be learned in the profession specialized in the medical practice, an expert at its details and subtleties. Ignorant practitioners in medicine must be declared incompetent and prevented from treating people.

It is unequivocally irrefutable that the criterion of knowledge in medicine varies through different ages and along with the advancement of sciences. In some ancient eras, the criterion was the fame attained by the doctor that he perfectly masters the medical practice. Two other doctors, of the same profession, and with profound knowledge in medicine would testify that such a person was eligible to practise the medical profession. The basis for this can be found in the Hadith related by Abu Dawud, Al-Termidhi and Ibn Magah that the Messenger of Allah, may the blessings and peace of Allah be upon him, said:

“He who practices medicine and is not therein verse is deemed like a guarantor”.

In the Book, “Ikhbar Al-Ulama bi Akhbar AlHukama”, 130, by Imam al Qifti, it was stated that Al-Muqtadir the Abbasid Caliph, ordered his physician Sinan Ibn Thabit Ibn Qurra Al-Harrani to examine the physicians of Baghdad at his time, and to grant those satisfying him in knowledge and practice a licence to practise the branch of medical profession in which he is versed.

The order of Al-Muqtadir, the Abbasi Caliph, was due to a physician’s error in treatment that lead to the death of a patient. It is worthy mentioning in this respect that this Caliph ordered his Muhtasib, then like a minister of interior, to consider that matter, so that no one would be permitted to practise medicine, unless licensed by his physician Sinan Ibn Thabit, who died 331, A.H.

In this Book, “Maalim Al Kurba Fi Ahkam Al-Hesbah” by Muhammad Ibn Muhammad Al-Qurashi Al-Shafii’, and after a long talk on the control over physicians, surgeons and bone setters the following conclusion on medicine and its requirements was stated:

The physician is the most learned on the physical constitution of human body, disposition of organs, the diseases inflicting them, causes, symptoms and signs and useful medicines, the methods of replacing such in case of non availability, ardent efforts to extract such medicines, means of treatment by prescribing sufficient doses of medicines according to the severity of disease, giving different doses according to quality, so that He who Is Not Aware of Such Matters, May Not Be Permitted To Treat Patients. It Is Not Permissible For Him To Embark Upon Prescribing Any Treatment With Risks Involved In His Endeavour. He Must Not Attempt That Which He Knows Not.

In the Hadith related by Amro Ibn Shu’ib, from his father from his grandfather, he said, the Messenger of Allah, may the blessings and peace of Allah be upon him, said:

“He who practices medicine and is not known to be such practitioner is deemed like a guarantor”.

Physicians should have a senior chief of the same profession. It was narrated that Greek kings used to install in each city a physician renowned for his wisdom and let him interview and examine the other physicians in the city and give orders to those with imperfect knowledge to work hard and read to gain more knowledge and discontinue practicing medicine. If a physician come to examine a patient, he should ask him about the cause of his illness and also ask him to inform him of renewing pains. The physician should afterwards, prepare a prescription of syrups and other drugs. He should write a copy of the prescription to patient’s relatives or witnesses present with him during examination. The next day he comes and considers the illness and the flask (3), and ask the patient: Does pain decline, or not? Then, he prescribes the proper medicine accordingly and writes a copy to be delivered to patient’s relatives. The physician should repeat the same process on the third and fourth days and so on until the patient recovers or dies. If the patient recovers. The physician receives his fees and honorarium, but in case the patient dies, his relatives come to the renowned physician showing him all the copies written by the treating physician. If he deems the prescription compatible with the principles of wisdom and medical practice without the least omission and/or carelessness on the part of the physician, he then says: patient has died because his life terminated, but if he considers the matter otherwise he advises patient’s relatives to take blood money for their dead man from that physician as it was he who killed the patient through improper practice and omission. In such a noble picture they were prudent to the extent that medicine may not be practised unless by those eligible and that, the physician may not neglectfully practise the profession. The Muhtasib should put the physicians under the obligation to take the Oath of Hippocrates, which he made physicians take, i.e. to swear not to give any one a harmful medicine, nor prepare a poison for anyone nor prescribe for women medicine that causes miscarriage nor for men and drug which prevents begetting of children, to lower their sights so as not to see that which they should not when they enter the houses of patients, not to divulge secrets, nor unveil that which is covered, nor expose themselves to disapproval.

The physician, moreover, should possess all medical tools in full. etc (4).

From this long text, it is clear to us that jurists properly defined the term “physician”, and laid down precise conditions for those who wish to profess the medical practice.

They also decided that physicians should have a senior who looks after their affairs and examines those wishing to profess medicine. Moreover, they defined the professional liability for doctors, and penalties imposters who do not belong to the profession.

The Muhtasib should also put the physicians under the obligation of a solemn covenants and Oath to properly perform their functions, and to abide by the sublime ethics dictated by their noble profession when practising medicine.

    1. The late Dr. Ahmad Essa in his Book, “History of Lunatic Asylums in Islam”, quoted two copies of medical licences awarded to a phlebotomist and the other for a surgeon.

Following is the text of the first licence: this is a copy of what the Reverend Sheikh, Dean of physicians, the guiding light of the intelligent, Sheikh Shihab Eddeen Esaiygh Al-Hanafi, Physician Chief of Egypt, wrote to award the learned youth Muhammad Azzam, one of the apprentices of the Reverend Sheikh Zain Eddeen Abdulmo’ti, Surgeon Chief, the medical licence for memorizing the treatise on phlebotomy. Then he mentioned the licence and the function of licensee, and stated that he was assistant to the Sheikh (Chief) of surgeons in Al-Mansouri Lunatic Asylum etc. in book already referred to.

The second licence was issued by the Surgeon in Chief at Al-Mansouri Sanatorium, Sheikh Shams Eddeen Muhammad Al-Qaiyem. In the end it reads: “I asked Allah, the Exalted, for proper guidance and granted the surgeon licence to practise surgery as much as he perfects knowledge of it in order to attain success in surgical operations, phlebotomizing veins, cutting off arteries and extracting bad teeth.. etc., dated the good Safar, 1011 A.H., 1602 A.D.

His eminence the late Sheikh Abdulaziz Al-Maraghi commented on both licences saying: considering the two licences, we realize that they were awarded on the basis of either submitting a treatise for discussion which the candidate defends, or commenting on treatises, formerly submitted by others, which he verifies while providing a definite scientific contribution by way of commentary, as the case is with Ph.D. Theses in our present time. Nicely enough the one who granted the first licence was Ahmad Ibn Siraj Eddeen, styled Shihab Eddeen, known as Ibn Al-Saiygh Al-Hanafi. He was Chief of Hanafitics in Egypt, and their teacher at Al-Barquqiya, though acting also as physician chief. He had only one daughter who assumed the sheikhdom of medicine after his death (5).

    1. Jurists have also decided that doctors like other people of other professions, are held accountable for their errors which are avoidable, and which may inflict harm upon the patient.

Jurists stated that if a doctor makes an error in treatment, by prescribing a drug other than that specified by Medicine and known to doctors, as being the adequate drug for a certain disease but it has inflicted harm upon the patient or led to his death, the doctor should, in this case, pay blood money or what the judge may deem as indemnity for the error made.

Al-Shihab Al-Ramli commented on the Book “Sharh Al-Rawd” saying that if the doctor commits an error in treatment and caused detriment, his folk should pay the indemnity.

Imam Al-Shafii in his Book, “Al-Om”, vol. 6, p. 166, said what can be summarized as: “If a physician cups a patient, circumcises his boy, or treats his riding-animal and detriment resulted due to his treatment, physician may not pay indemnity if the treatment is similar to that prescribed by other physicians for the good of the patient as known by the learned people of the medical profession, but if the physician purposely treats patient in a way his peers will not do for the good of patient, then he must pay indemnity”.

In his book, “Tabserat Al Hukam Fi Usul Al-Akham”, Judge Borhan Eddeen Ibrahim Ibn Farhoun Al-Malki commented on the indemnity paid by craftsmen and physicians saying: “If the person who circumcises is not known to be versed in this profession, then he is therefore held accountable and should pay the indemnity, with no liability on the part of his clan i.e. his folk. Moreover, the fair Imam must give him a deterrent punishment by slashing his back or prolonging his imprisonment. The same is applicable to the physician, cupper and veterinarian for what they do and in the same manner of formerly described in the case of the circumciser”.

From these juristic texts, it is clear that jurists expounded the lawful punishments against violation by physicians and others in respect of requirements of profession, such as honesty, experience and sound performance.

To sum up what they said: If the violation made against the ethics of the profession is a criminal act, then he should receive the right penalty otherwise, the Muhtasib may impose disciplinary punishment as this is within his competence. In former times, the Muhtasib enjoyed the competence of any administrative authority or Doctors’ Syndicate with the necessary regulations and rules of today.

Islamic Jurisprudence has, thus, organized the medical profession and has also restricted its practice to persons eligible for this humane delicate profession by those who are experts in this, on top of whom is the Physician in Chief.

Suffice it to quote what Abu-Naeem narrated that the Messenger of Allah, may the blessings and peace of Allah be upon him, said:

“He who practices medicine and is not qualified and causes harm to a human soul or to a soul lower (than human) he is deemed like a guarantor”.

    1. As Jurists have categorically settled the cases in which profession- also, first among whom are physicians, can be held accountable for the results ensuing from the mistakes they make, they have also settled the cases which spare them such liability.

To sum up their opinion, we may say: Not to be responsible is contingent upon (having a permission when the work done is usual and routine and does not exceed what is customarily done in similar operations) that is when what is done by the physicians is in conformity with standard practice in such cases. Al-Dur Al-Mokhtar and Commentary thereon states: No indemnity is payable by a cupper, veterinarian or phlebotomist who does not exceed the usual limits…” i.e. who does not do something in violation of what fellow physicians used to do when treating this injury or that disease.

These were only excerpts and examples of the responsibility of doctors as viewed by jurists. We can clearly see how they did not fall short of showing the responsibility, or unequivocally state points of dispute, and even more defining what duties are imposed on doctors and what rights they have.

Annotations

  1. Surat Al-Ma’idal/10.
  2. See the Introduction of Ibn Khaidun Vol. 3. p. 1441, commentary by Prof. Dr. Ali Abdulwahid Wafi.
  3. The “flask” may refer to the tube where there is the patient urine which served for following up development of the disease through its colour, or it may refer to the drug prepared.
  4. From a Research Paper on “Responsibility of Physicians” by the late Sheikh Abdulaziz Al-Maraghi – Al-Azhar Journal, vol. 20, 1368 A.H., 1948 AD, p. 206.
  5. Ibid.

Dr. Muhammad Sayed Tantawi Mufti of Egypt

Leave a Reply

Your email address will not be published. Required fields are marked *