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THE CONDITIONS AND CIRCUMSTANCES OF THE CIVIL LIABILITY OF
PHYSICIANS IN ISLAMIC JURISPRUDENCE AND THE STATUTORY LAWS OF
AFGHANISTAN
Mohammad Younes Nadaie
Master’s Student of Criminal Law and Criminology, Faculty of
Law and Political Science, Jami University, Herat, Afghanistan.
Abdul Qadeer Nadei
Senior Teaching Assistant.
Department of Criminal Law, Law and political Science Faculty, Herat University.
https://doi.org/10.5281/zenodo.15321195
Abstract. The civil liability of physicians in Islamic jurisprudence and the statutory laws
of Afghanistan is one of the complex and sensitive issues in medical law, referring to the
responsibility of doctors towards patients and the consequences resulting from their medical
actions. Civil liability of a physician means their obligation to compensate for financial,
physical, or emotional damages caused to patients. This liability typically arises when a doctor
fails to fulfill their duties or performs unauthorized or negligent medical procedures. The aim of
this study is to examine the conditions and circumstances under which physicians are held civilly
liable under Islamic jurisprudence and Afghan statutory law. The central question of this
research is: under what conditions and circumstances is a physician liable according to Islamic
jurisprudence and Afghanistan’s laws? It appears that if a physician causes harm to a patient
due to negligence, lack of caution, or excessive treatment, they are considered liable. This
research is conducted through library-based sources and employs a descriptive-analytical
method. The findings indicate that a physician cannot be deemed absolutely liable or entirely
acquitted; rather, they are liable in cases where they fail to obtain prior consent (discharge of
liability), lack sufficient expertise, or commit negligence. Otherwise, they are not considered
liable.
Keywords: Actions, Patient, Physician, Civil Liability, Treatment.
УСЛОВИЯ И ОБСТОЯТЕЛЬСТВА ГРАЖДАНСКОЙ ОТВЕТСТВЕННОСТИ
ВРАЧЕЙ В ИСЛАМСКОЙ ЮРИСПРУДЕНЦИИ И СТАТУТНОМ ПРАВЕ
АФГАНИСТАНА
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Аннотация. Гражданская ответственность врачей в исламской юриспруденции и
статутном праве Афганистана является одним из сложных и деликатных вопросов в
медицинском праве, касающимся ответственности врачей перед пациентами и
последствий, возникающих в результате их медицинских действий. Гражданская
ответственность врача означает его обязанность компенсировать финансовый,
физический или эмоциональный ущерб, причиненный пациентам. Эта ответственность
обычно возникает, когда врач не выполняет свои обязанности или выполняет
несанкционированные или небрежные медицинские процедуры. Целью данного
исследования является изучение условий и обстоятельств, при которых врачи несут
гражданскую ответственность в соответствии с исламской юриспруденцией и
афганским статутным правом. Центральный вопрос данного исследования: при каких
условиях и обстоятельствах врач несет ответственность в соответствии с исламской
юриспруденцией и законами Афганистана? Похоже, что если врач причиняет вред
пациенту из-за халатности, неосторожности или чрезмерного лечения, он считается
ответственным. Это исследование проводится с использованием библиотечных
источников и использует описательно-аналитический метод. Результаты показывают,
что врач не может считаться абсолютно ответственным или полностью оправданным;
скорее, он несет ответственность в случаях, когда он не получает предварительного
согласия (освобождение от ответственности), не обладает достаточным опытом или
совершает халатность. В противном случае он не считается ответственным.
Ключевые слова: Действия, Пациент, Врач, Гражданская ответственность,
Лечение.
Introduction:
Medical care has always served humanity from the earliest periods of human history to
the present, as humans have constantly faced physical problems and various pains.
Unfortunately, the history of medicine has not precisely recorded the responsibilities and
liabilities of physicians during ancient times. However, medical advancements in various
civilizations such as Ancient Egypt, Babylon, and more recently across the globe have led to
increased attention toward the regulations, conditions, and punishments related to medical
practice.
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In Afghanistan, the healthcare system faces multiple challenges that reduce the quality of
medical services. Among the causes of these issues are the lack of health awareness among the
public, a shortage of specialized doctors, and the failure of some physicians to observe ethical
and humanitarian standards. Unfortunately, the condition of many clinics and medical centers
reflects severe shortcomings in equipment and hygiene. Dirty environments and the disregard for
sanitary principles in many of these facilities have caused public concern and a loss of trust in
medical services. These issues not only affect the quality of treatment but also diminish public
confidence in the country’s healthcare system.
One of the main challenges is the presence of unqualified physicians and the use of low-
quality medications, which lead to numerous physical and psychological problems for patients.
Despite scientific and technological advancements in the field of medicine, physicians'
accountability toward patients must be further strengthened. Although doctors may possess the
necessary experience and expertise, this does not always lead to positive outcomes; in some
cases, it even results in serious harm to patients. Negligence in treatment and failure to follow
ethical principles create serious problems in the healthcare system, which—alongside physical
and psychological harm to patients—undermine public trust in the medical profession.
Therefore, it is essential for the Ministry of Public Health and other relevant institutions
to take serious measures to reform this situation and improve the quality of healthcare services.
The Concept of Physician Responsibility
To begin, it is essential to define the key concepts of the discussion both linguistically
and terminologically, in order to clarify the subsequent topics and avoid any verbal ambiguities.
Definition of Responsibility
In Persian, the term "responsibility" refers to guarantee, obligation, and accountability.
In its active form, it is synonymous with terms such as being in charge, being obligated,
committed, or bound. In its passive form, it conveys meanings such as being liable or under
someone’s guarantee. The usage of the term "responsibility" in Persian originates from Islamic
customs and culture, in which any form of duty or obligation ultimately entails accountability
and questioning (Amiri, 2019: 67–68).
In other words, responsibility refers to a state or condition in which an individual is held
accountable by law for an act or omission. This accountability may arise from a breach of
statutory criminal laws, violation of a contract (written or unwritten), or failure to adhere to
professional and occupational standards.
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A physician may be subject to different types of responsibilities—criminal, civil, or
professional—depending on specific actions or violations of professional conduct. In some cases,
a single action may subject the physician to all these forms of liability.
For instance, a doctor who issues a license without following proper guidelines and
procedures is undoubtedly responsible from a professional standpoint due to violating those
regulations.
Criminal responsibility can be described as the obligation of a person to endure the
consequences of their criminal behavior. Alternatively, criminal liability can be defined as the
violation of laws and regulations established by society, committed knowingly and intentionally
(Nejati, 2010: 37). Therefore, from a criminal law perspective, the commission of a crime—or
more broadly, any violation of social regulations that carries a penal consequence—is considered
a necessary condition for establishing criminal liability (Validi, 1992: 26).
A. Linguistic Definition
The word "responsibility" (mas'uliyyat) is a derived noun (masdar-i sanāʿī) from mas'ul
and means guarantee, liability, accountability, and also refers to the state of someone being held
responsible for something—being liable for it, bearing it, or under obligation. It also conveys the
meaning of being questioned, held to account, and is used in the sense of assigning duties.
(Moein, 1992: 95).
B. Terminological Definition
The term "responsibility" in a technical or disciplinary sense can be examined from two
perspectives:
1.
Legal Perspective
In legal terminology, responsibility refers to a compulsory or voluntary obligation of one
person toward another, whether financial or non-financial. It is categorized into two types:
Criminal responsibility, which cannot be quantified in monetary terms.
Civil (financial) responsibility, which can be assessed in terms of monetary compensation
(Langroudi Jafari, 2008: 642).
It also means "guarantee, obligation, accountability, or the duty of a person to compensate
for the harm caused to another, whether such harm results from the person's own fault or their
actions." (Langroudi Jafari, 2008: 942)
It is worth noting that in Islamic jurisprudence, the term ḍamān (guarantee or liability) is
used instead of responsibility (mas'uliyyat), encompassing all forms of liability, both civil and
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criminal. As can be seen, the legal usage of "responsibility" aligns with its linguistic meaning,
revolving around accountability and obligation in response to one’s actions and behavior toward
others.
2.
Islamic Jurisprudential (Fiqh) Perspective
In Islamic legal and jurisprudential terminology, mas'uliyyat is synonymous with ḍamān
(liability). A person upon whom a responsibility is placed is referred to as mas'ul (responsible) or
ḍāmin (liable). Fiqhi liability in Islamic law is generally divided into three categories:
Responsibility toward God (Ḥaqq Allāh): where a person is obliged to perform certain
actions and refrain from others.
Responsibility toward oneself (Ḥaqq al-Nafs): duties related to the care and rights of
one's own self.
Responsibility toward others (Ḥuqūq al-Nās): duties and obligations one holds in relation
to other human beings (Misbah Yazdi, 1994: 177).
The Concept of a Physician
A. Linguistic Definition
In linguistic terms, a physician is someone who attends to the ailments of the sick and
provides healing through careful management and the use of medicine. (Dehkhoda, Ali Akbar,
Dehkhoda Dictionary, via software)
B. Terminological Definition
In terminology, the term physician here refers to a skilled, professional, and qualified
medical doctor who has undergone formal academic education in the field of medicine,
successfully completed the necessary stages to gain specialization, and is authorized by law to
practice medicine upon receiving a formal license or certificate of qualification. (Nejati, 2010:
63).
Alternatively, it can refer to someone who has attained a high level of expertise in
medicine through experience and professional practice. Now, if such a physician—despite
applying all their efforts in good faith and adhering to technical principles and regulations—
treats a patient but the treatment results in the patient's death or permanent injury instead of
recovery, the question arises: is this physician liable or not?
On the other hand, if an ignorant individual falsely claims to be a physician and treats
patients without any knowledge of medicine—commonly referred to as a quack or unqualified
physician—there is no doubt or debate regarding their liability.
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Islamic texts and traditions emphasize the accountability of such individuals. First,
merely undertaking such a practice without proper qualifications is itself considered negligence
and automatically entails full liability. (Nejati, 2010: 59) Second, such individuals are prohibited
from practicing medicine, and they should not treat patients. To protect public welfare, such a
person is considered legally incompetent (mahjur), and the authorities are obliged to prevent
them from continuing medical practice in order to safeguard people's lives and property.
Medicine, being a collective obligation (wājib kifāʾī) in Islam, imposes a duty on anyone
who has acquired medical knowledge to take responsibility for their medical actions, especially
since they directly deal with human life and health. (Zuhayli, 1992: 49
4 –450)
In technical terms, medicine is the science that deals with the human div—studying
both the factors that maintain health and those that lead to illness or the deterioration of physical
well-being. In other words, medicine is the discipline concerned with preserving and promoting
health, preventing diseases, and treating the sick and injured. This goal is primarily achieved
through identifying, diagnosing, and then preventing or managing the progression of diseases
and injuries.
Conditions and Legitimacy of Medical Practices
Like other sciences, medical knowledge involves interactive and incremental issues and
has advanced through various tools. One of the new topics in this field is plastic, reconstructive,
and cosmetic surgeries, as well as treatments involving prohibited objects. These matters are also
considered new in both law and jurisprudence. Treatment using prohibited substances like
alcohol or impure medicines is only permissible in cases of necessity and to the extent required.
Similarly, using medicines that harm the patient’s div is prohibited unless it’s an
emergency. Medical treatment must be legitimate, meaning it should not contradict ethics or law.
Medical actions performed without legal authorization or those harmful to patients' health
are considered illegitimate. Law forms the basis of liability; therefore, physicians who perform
actions like abortion to save a life are not to be blamed if they act in accordance with the law.
The legitimacy of any medical action is dependent on the permission of the legislator.
(Mohseni, 2008: 192)
In fact, negligence is punishable regardless of the harmful effects of the action.
Negligence refers to the breach of laws and regulations that govern the conduct and
relationships of people; whether or not harmful results occur is irrelevant.
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For example, if driving without a license leads to bodily harm, it constitutes a violation of
two offenses: driving without a license and causing unintentional injury. (Tohid Khaneh, 2009:
154
-
153
).
A: Permission of the Legislator
Engaging in the medical profession without legal authorization, even if it does not result
in harm, leads to legal responsibility and prosecution. The adherence of the medical profession to
laws and regulations ensures the safety and progress of society. According to Article 210
of the
1306
Penal Code, practicing medicine without an official license is considered a crime and
punishable with discretionary penalties. Article 3
of the Forensic Medicine Law emphasizes that
individuals practicing in the medical field must hold a valid diploma from recognized domestic
or foreign institutions. Article 22
of the Public Health Law of Afghanistan stipulates that medical
services can only be provided with a certification from the Ministry of Public Health, and any
medical practice without this certification is unlawful and contrary to the law. Related
professions, such as pharmacy, dentistry, and laboratory activities, are also subject to these
requirements, and their licenses must be issued following evaluation and approval by the
Pharmacy Affairs Administration. According to Article 19
of the Public Health Law, any medical
procedures must comply with the law and be conducted through authorized centers. The use of
unauthorized drugs or engaging in activities without the necessary license is unlawful and
subject to legal prosecution. These laws are designed to protect public health and ensure the
quality of medical services, and compliance with them is mandatory to prevent violations.
B: Intent of Treatment
The absence of malicious intent in medical practice refers to the intent to treat and heal,
which in criminal matters can lead to the removal of criminal responsibility. Although, in
criminal cases, the mere occurrence of a harmful action is sufficient to prove liability, in the
medical profession, to prove the criminal liability of a physician, malicious intent as the mental
element of the crime must be demonstrated. According to Article 40
of the Afghan Penal Code,
malicious intent is considered present when the perpetrator has premeditated the crime. On the
other hand, if a physician acts with the intent to heal and follows professional and religious
principles, even if harm occurs to the patient, they are not criminally liable.
1
،(Afghan Penal
1
Surah At-Tawbah, verse 91, refers to the exemption of beneficent individuals from liability:
َِّ ِلِل اوُحَصَن اَذِإ ٌج َرَح َنوُقِفنُي اَم َنوُد ِجَي َلَ َنيِذَّلا ىَلَع َلَ َو ٰىَض ْرَمْلا ىَلَع َلَ َو ِءاَفَعُّضلا ىَلَع َسْيَل"
ْحُمْلا ىَلَع اَم ِهِلوُس َر َو
"ٌمي ِح َّر ٌروُفَغ ُ َّاللَّ َو ٍليِبَس نِم َنيِنِس
"
There is no blame on the weak, nor on the sick, nor on those who do not find anything to spend (in the cause of
Allah), provided they are sincere to Allah and His Messenger. There is no way (of blame) against those who do
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Code, 1396: Article 40) This is also reflected in Islamic jurisprudence through the principle of
"Ihsan": "There is no blame on those who act with good intentions," indicating that individuals
who act with good will should not be harshly judged and are not liable. (Mihahd Damad, n.d.:
264)
The Rule of Benevolence (Qā‘idah al-Iḥsān) applies in cases where the individual has no
intention of personal benefit and their action is, both rationally and socially, considered an act of
kindness. For example, doctors who tear a patient’s clothes in an emergency situation or
individuals who demolish a part of a building to extinguish a fire are exempt from liability due to
the absence of ill intent and personal gain. (Muḥaqqiq Dāmād, n.d.: 149).
C: Consent in Medical Procedures
The term riḍā (consent) is derived from the root raḍiya, meaning satisfaction or pleasure,
and is the opposite of anger and displeasure. Words such as riḍā, riḍwān, and marḍāt all convey
the meaning of contentment, and irḍā means to please someone. Thus, in its linguistic sense, riḍā
means permission, contentment, acceptance, and satisfaction (Mo‘in, 1992: 1659). In legal
terminology, riḍā refers to the heartfelt willingness towards a legal act that has occurred, is
occurring, or will occur.
Treatment of a patient through any medical method requires the patient’s or their legal
guardian’s consent. Doctors are not permitted to perform surgery or administer treatment without
such permission. Consent is one of the fundamental conditions for exemption from liability in
medical practice and is analyzed from three perspectives: first, divine approval as the primary
outlook; second, the welfare and health of the patient; and third, the patient’s or guardian’s
consent as a complementary and supportive factor. Patient consent implies prior authorization
and can be either oral or written.
According to Article 54
of the Afghan Penal Code, performing surgical procedures or
other treatments is contingent upon the patient’s consent and adherence to professional standards.
In the absence of consent, even if the doctor's intention was therapeutic, they may be held
civilly or criminally liable. Moreover, doctors are obligated to inform patients or their legal
guardians about the nature of the disease, treatment methods, type of surgery, and possible
consequences.
good. And Allah is All-Forgiving, Most Merciful." This verse indicates that those who act with sincerity and
goodwill, despite their limitations—such as weakness, illness, or lack of financial means—are not held accountable.
It serves as a basis for the legal and moral principle that beneficent individuals
(
)نينسحم should not be held liable
when acting with good intention and within their capacity.
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According to Article 20
of the Public Health Law of Afghanistan, in emergency cases
where delay in treatment may endanger the patient’s life, surgery may be carried out with the
approval of the treating medical team, even without the consent of the patient or their guardian.
However, in non-emergency situations, obtaining the written consent of the patient or
their guardian is mandatory under Article 27
of the Health Centers Regulation. Doctors are also
required to inform patients about diagnosis, likelihood of treatment success, and potential side
effects. Failure to do so constitutes a violation of patient rights and may result in legal
accountability for the doctors (Roy Balmer, 2009: 159).
Full awareness of the treatment process and possible surgical complications is essential.
Patients have the right to receive honest explanations about the surgical procedure,
anesthesia, and recovery time. They must also be informed of specific risks such as bleeding,
swelling, or the duration of treatment. If such information is not provided and surgery is
performed without the patient’s informed consent, the physician may be held accountable and
face legal consequences.
Article 27, Paragraph 1
of the Health Centers Regulation states that written consent from
the patient or guardian must be obtained before any surgery or medical procedure. Article 26,
Paragraphs 7– 8
further stipulate that informing the patient about the likelihood of treatment
success, diagnosis, and professional findings in written form is part of patient rights and service
provision. It obliges doctors and medical personnel to adhere strictly to these legally outlined
patient rights (Roy Balmer, 2009: 159).
M. Emergency Situations
According to Article 20
of the Public Health Law of Afghanistan, performing surgical
operations and using complex diagnostic methods for the purpose of diagnosis and treatment is
only permitted after obtaining the patient's written consent. If the patient is under the legal age or
suffers from mental disorders, consent must be obtained from the parents, relatives, or legal
representative of the patient.
In emergency situations where delays in diagnosis or treatment may endanger the
patient’s life and it is not possible to obtain consent from parents or legal representatives, surgery
may be performed with the written approval of the treating medical board, even without the
patient’s consent. In cases where neither the consent of the patient nor their guardians can be
obtained, and no relatives or legal representatives are present, doctors are permitted to proceed
with treatment or surgery in life-threatening emergencies without obtaining prior consent.
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In such cases, if harm or damage results from the medical intervention, doctors will not
be held liable, provided that they adhered to technical and professional standards. Furthermore,
Article 46
of the Regulation on Private Health Centers obligates private medical institutions to
provide essential and life-saving medical services free of charge to victims of natural and non-
natural disasters and to refer them to the relevant authorities after stabilizing their condition.
In emergency situations, doctors may rely on the following principles:
The existence of a serious threat to the patient’s life, which must be proven by the
physician (in case of disagreement, the opinion of the forensic medical authority will be
considered decisive),
and the inability of the patient to give consent.
However, once the emergency condition is resolved, obtaining the consent and legal
clearance (discharge of liability) from the patient or their legal representatives becomes
mandatory.
Civil Liability of Physicians
The civil liability of physicians in Afghanistan is based on the general principles of
Islamic jurisprudence and civil law, which are structured around the concepts of fault and
liability. This liability is essential to protect patients’ rights and ensure professional standards in
the medical field. In order to improve this area, legal reforms and the expansion of civil liability
insurance could play a significant role. Article 774
of the Civil Code of Afghanistan stipulates:
"A person who commits a harmful act such as murder, injury, beating, or other forms of harm to
the div is obligated to compensate for the damage caused."(Civil Code of Afghanistan, 1355,
Article 774).
The explicit wording of the lawmaker in this article shows that compensation is required
in all cases, without the need to prove fault or negligence, as the phrase "the person who
commits" is used. This means the person may be at fault, negligent, or even without fault.
However, a question arises: Is a person liable only when committing a harmful act, or does this
also apply to omissions? The answer lies in the phrase "harmful act," which refers to actions
leading to murder, injury, beating, or other harmful consequences. The purpose of using this term
is to exclude acts of benevolence (ihsan), as a person may unintentionally harm another while
acting out of kindness. According to the majority of Islamic jurists, a benevolent person is not
held liable(Mujaddidi, 1399: 212).
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Another issue concerns the damages suffered by a person due to an assault or injury. In
such cases, the perpetrator must not only compensate for the damage caused but also cover the
expenses of those financially dependent on the victim. In this regard, Article 775
of the Civil
Code of Afghanistan provides: "A person who causes the death of another due to injury or any
other harmful act is obligated to pay compensation to those who were financially dependent on
the deceased and have been deprived of support as a result of the death." According to this
article, the perpetrator is required to cover all the expenses of the deceased's dependents, with the
amount determined by the specific circumstances of the case(Mujaddidi, 1399: 213).
Physician’s Responsibility in Prescribing Pharmaceutical Products
In the field of medicine, only a licensed physician is authorized to prescribe and issue
instructions for the use of pharmaceutical products. Accordingly, medications dispensed by
pharmacies without a physician’s prescription fall under the responsibility of the professional
distributor, not the prescriber, since only physicians are permitted to prescribe. Moreover,
medications listed and approved by the Ministry of Public Health are included in the scope of the
physician’s responsibility when prescribed and used. In this context, the physician’s
responsibility for compensating damage resulting from pharmaceutical products is clearly
identifiable. Many of the side effects and injuries caused by medications—especially in patients
with specific physical and psychological conditions—are directly related to the physician’s
prescription. Physicians prescribe medications with knowledge of the patient's condition and
potential drug reactions, making their role in compensating any resulting harm from drug use
highly important and necessary.(Maboudi, 1401: 3811).
In the past, the relationship between physician and patient was primarily considered a
legal contract. However, today, this relationship often occurs within the framework of legal
entities such as hospitals and clinics. In other words, the physician treats the patient as a
professional appointed by a hospital or clinic. If the patient has not entered into a direct contract
with the physician, the physician's responsibility is indirectly derived from the contract between
the patient and the hospital. This implies that the physician has accepted contractual obligations
toward the patient as part of the hospital’s duties. Additionally, the selection of the physician—
based on their qualifications and reputation—is an important factor in the treatment contract.
Patients often choose physicians unconsciously relying on their competence. In such
cases, denying the contractual nature of the physician’s responsibility would deprive the patient
of the benefits of contractual protections(Maboudi, 1401: 3811–3812).
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In modern law, especially in English law, there are distinctions between a physician’s
responsibility in prescribing drugs and in providing services. When a drug is prescribed via a
proper prescription, the physician is not directly liable; however, if the physician or drug
distributor acts arbitrarily, they are held responsible. In Islamic jurisprudence, there is no
distinction between medical services and the provision of goods; any damage caused to the
patient must be compensated by the physician. In contrast, Western legal systems differentiate
between services and goods, and a physician is liable for harm only if there is an act causing
damage to the patient. Ultimately, a physician’s responsibility in prescribing medication and
treating patients depends on the type of relationship with the patient, the obligations of the
hospital, and the accuracy in prescribing drugs and providing medical services(Maboudi, 1401:
3812).
Civil Responsibility of a Physician in Afghan Civil Law
In Afghan Civil Law, there is no explicit reference to the civil responsibility of
physicians, but this responsibility can be inferred from the general provisions of the law. The
civil responsibility of a physician is defined within the framework of Article 774 of the Afghan
Civil Code, which states that a physician, as an individual possessing medical knowledge and
expertise, is obligated to use their knowledge and experience to treat patients. However, if their
actions result in harm to the patient, the physician is required to compensate for the damage, as
outlined in this article. The text of the article reads: "A person who commits a harmful act such
as murder, injury, assault, or any other form of harm to a person is obligated to compensate for
the damage caused." Therefore, a physician, in the event of committing a harmful act such as
injury or harm resulting from negligence, error, or failure in providing medical services, will be
held civilly responsible.
The civil responsibility of a physician is divided into two main categories: contractual
liability and non-contractual liability. In cases where the physician acts based on a contract
between themselves and the patient, a breach of contract or failure to adhere to established
medical standards may lead to contractual liability. However, if there is no contractual
relationship between the physician and the patient, and the harm is a result of the physician's
actions or negligence, their liability falls under non-contractual liability, which is directly subject
to Article 774. One key element in determining the physician's responsibility is the element of
fault. If it is proven that the physician was negligent or careless in providing medical services,
such as improper use of medical equipment or incorrect diagnosis, their liability will be
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established. Furthermore, if the physician makes a mistake in performing a procedure for which
they lack sufficient knowledge or expertise, they will still be held responsible.
However, if the physician has adhered to all medical duties and standards and, despite
this, harm or damage occurs to the patient, the physician will not be held civilly liable. For
example, if a specific treatment causes harm due to the patient's physical condition or an
unexpected reaction to the medication, the physician may be exempt from liability unless there
has been negligence or error on their part.
Moreover, the civil responsibility of the physician can also be found in Article 775 of the
Afghan Civil Code. According to this article, the civil responsibility of a physician arises in
cases where the physician's actions, whether due to negligence, carelessness, or failure to follow
professional principles, result in the death of the patient. The article states: "A person who causes
the death of a person due to injury or any other harmful act is obligated to compensate for the
damage to those who were financially dependent on the deceased and have been deprived of that
support due to the death." Therefore, if the physician's mistake in diagnosis, incorrect
prescription of medication, or procedural error results in the patient's death, the physician will be
held civilly responsible not only to the deceased but also to the individuals who were financially
supported by the deceased. In this context, the physician's civil responsibility includes
compensating the material damage to the surviving family members, particularly those who
relied on the deceased's income or financial support. To establish this responsibility, a causal link
between the physician's action and the patient's death must be proven. For example, if the
physician fails to follow proper procedures during a surgical operation and this directly leads to
the patient's death, they will be required to compensate for the damage.
At the same time, the physician's responsibility under this article is subject to certain
conditions. If the physician has adhered to all scientific and professional standards and the
patient's death results from factors beyond the physician's control, such as the patient's critical
condition or the div's failure to respond to treatment, the physician will not be held liable.
However, this must be substantiated with sufficient evidence and documentation.
The Physician's Discharge of Liability and Responsibility in Sunni and Shia
Jurisprudence
The civil responsibility of a physician arises from their conduct and actions in relation to
patients.
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If a physician’s treatment results in the patient’s death or the loss of a limb, there are
various opinions among the five Sunni schools of thought regarding the liability of the physician.
The following discusses these opinions:
A. Hanafi School
In the Hanafi school of thought, if a skilled and capable physician treats a patient with the
patient’s consent (or the consent of their guardian) and the patient dies or suffers harm as a result
of the treatment, the physician is not held liable. Some Hanafi jurists argue that if the physician
performs their duty diligently and without negligence, and if the patient’s death occurs despite
this, the physician will not be liable (Kāsānī, 1409: 305). Al-Baghdādī holds the same view (Al-
Baghdādī, n.d.: 48). Another jurist suggests that if the physician makes a mistake that results in
the patient’s death, the physician will be held liable (Ṭūrī, 1404: 56).
Thus, Hanafi jurists do not hold a competent and skilled physician liable for two reasons:
1. Consent and Permission: The patient’s or their guardian’s consent absolves the physician
from liability. If the physician adheres to medical rules and treats the patient accordingly, they
will not be held responsible if the patient dies.
2. Social Necessity: Many members of society rely on physicians’ services. Exempting
physicians from liability encourages them to treat patients, which benefits society as a whole
(Zuhaylī, 1405: 450-499).
The argument is that the patient’s consent or that of their guardian is sufficient to remove
liability, and no formal discharge of liability is required, provided the physician does not make
an error. However, if a mistake is made, the physician will be held liable (Muḥammadi, 1390: 8).
B. Mālikī School
Mālikī jurists hold that if a physician is skilled and administers a treatment that results in
death, the physician and their family (ʿāqilah) are not liable. However, if the physician makes a
mistake leading to death, they will be liable. In cases where the loss of an organ is less than a
third of the full blood-money, the physician will pay from their own wealth; if it exceeds a third,
the responsibility lies with the ʿāqilah (Abūl-Barakāt, n.d.: 355). Al-Desūqī adds: “If the
physician is unskilled and their treatment leads to harm, there are two opinions: one holds the
physician liable, while the other, by Ibn Qāsim, places the responsibility on the ʿāqilah. The first
opinion is stronger” (Al-Desūqī, n.d.: 28).
Ibn Rushd maintains that if the physician is not knowledgeable in medicine, they
themselves are liable, not their ʿāqilah, citing a hadith from the Prophet (PBUH) who said:
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"Whoever practices medicine without prior knowledge of it, is liable" (Abū Dāwūd al-Sijistānī,
1369: 1148).
Therefore, the Mālikī school asserts that a physician is not liable if they possess expertise
and obtain permission from the patient or their guardian, as long as they do not err in their
treatment.
C. Shāfiʿī School
Shāfiʿī jurists argue that if a skilled physician treats a patient with the consent of an
authorized person, and no negligence occurs, the physician is not liable. However, if the
physician makes a mistake and harm results, they will be held responsible for the loss (Al-
Nawawī, n.d.: 391; Al-Sharbīnī, n.d.: 202). Al-Shirwānī states: "If the physician errs and harm
occurs, they will be liable, and a physician who is unskilled is also liable if harm results" (Al-
Shirwānī, n.d.: 197).
The reasoning for exonerating the physician is that their actions were performed with the
patient’s consent, and their intent was to heal the patient, not to harm them. If these two
conditions are met, the treatment is deemed lawful, and the physician will not be held liable for
harm, provided their actions align with recognized medical practices (Shāfiʿī, 1403: 62).
Thus, in the Shāfiʿī school, if the patient suffers harm or dies, neither the patient nor their
family can demand the physician’s punishment or blood-money, as long as the physician adhered
to medical standards and acted with the intention of curing the patient.
D. Ḥanbalī School
According to the Ḥanbalī school, if a skilled physician treats a patient with consent and
does not transgress, but harm results from the treatment, the physician is not liable, even if the
disease spreads. This is similar to a judge executing a punishment, where the judge is not liable if
the punishment leads to death, provided no transgression occurs. However, if the physician
makes an error or acts recklessly, they will be held liable (Ibn Qudāmah, 1406: 124). Ibn Mufliḥ
states: “If a physician is skilled and their treatment results in harm, they are not liable as they
have done something lawful” (Ibn Mufliḥ, 1400: 110-111).
Thus, the Ḥanbalī school holds that a skilled physician is not liable unless they make an
error, in which case they would be responsible for the harm caused.
E. Shīʿī School
Shīʿī jurists assert that if the physician acts excessively or negligently, even with the
consent of the patient or their guardian, they are liable.
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This is because the consent of the patient is only for treatment and not for causing harm
or death. Ayatollah Arākī has stated that a physician is liable in three cases: lack of expertise,
negligence, and lack of authorization. However, if the physician possesses expertise, does not
neglect their duty, and obtains consent from the patient or their guardian, they are not held liable
(Ḥujat, 1375: 149).
Before him, jurists such as al-Ṣāḥib al-Jawāhir, al-Shahīd al-Thānī, and al-Ṣāḥib al-Riyāḍ
have also held physicians liable for negligence, even if they had the patient's consent (Najafī,
1400: 44; Jabbāʿī Āmilī, 1419: 49; and Ṭabāṭabāʾī, 1404: 596). Imam Khomeini even went
further, stating that the physician is liable despite having sufficient expertise and authorization
from the patient, even if there was no negligence (Mūsawī Khomeinī, 1390: 560).
In contrast, some jurists argue that consent alone is not sufficient, and that a formal
discharge (barāʾat) is necessary to absolve the physician of liability (Madani Kāshānī, 1408: 49).
Conclusion:
The findings of this research on the civil and criminal liability of physicians in Islamic
jurisprudence and Afghan law demonstrate that this issue is a sensitive and complex area of
medical law, directly related to both the ethical and scientific principles in the medical
profession, as well as to the health and rights of patients. In Islamic jurisprudence, a physician's
liability is primarily based on the principles of justice and compensation for harm. A physician is
obligated to perform their duties with care and diligence. If a physician neglects their
responsibilities or their treatment results in harm to the patient, they will be held liable,
particularly in cases of either unintentional or intentional errors. Islamic jurisprudence, guided by
the principle of "La ẓarara wa la ẓirār" (no harm and no harm done), considers the compensation
of harm a general duty, holding the physician accountable for any harm caused to the patient. In
cases of intentional error in treatment, the physician not only bears civil liability but may also
face criminal prosecution.
Regarding criminal liability, Islamic law holds physicians accountable with greater
scrutiny, depending on the severity of the damage caused to the patient. If a physician’s error
leads to death or serious injury, they are recognized as committing a crime and are subject to
criminal penalties such as blood-money (dīyah), imprisonment, or other punishments. In this
regard, Islamic laws specifically recommend that physicians exercise the utmost caution and
diligence in performing medical procedures to prevent any unfortunate incidents.
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Afghan regulations also address the civil and criminal liability of physicians within the
framework of the country's domestic laws. According to Afghan laws, a physician is required to
use their knowledge and skills in treating patients. In the case of a violation of this responsibility,
the physician is obligated to compensate for the harm and comply with relevant laws. Negligence
or errors in diagnosis and treatment can create civil liability for the physician, and if the harm is
significant—whether physical or financial—the physician may be subject to legal prosecution.
Additionally, if a physician's actions result in the death or disability of a patient, they will
be criminally prosecuted. Specifically, Afghan law requires physicians to use only legally
approved tools and medications.
Overall, the civil and criminal liability of physicians in both Islamic jurisprudence and
Afghan regulations is designed to protect patient rights and improve the quality of medical
services. Physicians must act not only as knowledgeable professionals but also as individuals
with ethical and legal responsibilities toward their patients. Similarly, Afghan laws place
significant emphasis on adhering to strict medical standards and regulations, ensuring both the
health and safety of patients and the accountability of physicians for any misconduct. In this
context, it is essential to balance the responsibilities of physicians with the rights of patients. To
improve public health, continuous medical education and rigorous oversight of physician
practices are essential to ensure better healthcare outcomes and uphold ethical standards in the
medical profession.
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