Physicians and medical responsibility

It is related by Aboo Daawood, al-Nisaa’ee and Ibn Maajah, from hadeeth of ‘Amr ibn Shu‘ayb, from his father, from his grandfather: The Messenger of Allaah sallallaahu‘alaihiwasallam said:

من تطبّب ولم يعلم منه طب قبل ذلك فهو ضامن

“If anyone carries out medical treatment, yet previously he was not known as a medical man, then he takes the responsibility.”[1]

This hadeeth is concerned with three points, one linguistic, one legal and one medical.

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The words of the Prophet sallallaahu‘alaihiwasallam were: “Whoever practises medicine (tatabbaba)”, he did not say “whoever is a physician (tabba)”. The expression of the fifth form (tafa‘ala) indicates some constraint in the action, and entering into it with difficulty, and that the one so described is not originally one of its practitioners. Similarly, we find the expressions: to attempt clemency (tahallama), to show courage (tashajja‘a), to adopt patience (tasabbara) and others of this kind. Thus, ‘to force oneself’ (takallafa) is formed upon this pattern. The poet said: ‘And Qays of ‘Aylaan, and whoever sought to be a Qays (taqayyasa).

The legal (shar‘ee) aspect is that this hadeeth establishes the liability of the ignorant practitioner. For if he assumes the knowledge and practice of medicine, without formerly having any acquaintance with it, by his ignorance he risks causing harm to the lives of people; he practises irresponsibly what he does not know and, thus, deceives the sick person. Therefore he must be held responsible. This is the consensus among all scholars.

Al-Khattaabee said: I do not know of any disagreement regarding the fact that when a person carrying out treatment transgresses the limits of his knowledge and expertise and causes harm to the patient he should be held responsible. One who lays claim to knowledge or practice which he does not have is an impostor. When injury is brought about by his action, he is responsible for the blood-money, and he has no right to retaliation (qawad); for he has no authority without the sick person’s permission. The consequences of the practitioner’s felony – according to the opinion of most jurists – falls upon his clan (‘aaqila).

My own comment:[2] there are five categories:

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[2]: The second example is that of an ignorant practitioner who treats a person and injures him. In this case if the person thus injured knew that he was ignorant, that is to say, without knowledge of his profession, yet permitted him to treat him, the practitioner is not held responsible. This kind is not opposed by the obvious sense of the hadeeth. For the context and purport of the words show that he deceived the sick person, and made him think he was a physician, while he was not. If the sick person thinks him to be a physician and permits him to treat him on the basis of his knowledge, the physician is responsible for any injury he commits. Similarly, if he prescribes him some medicine to take, and the patient thinks that he has prescribed it because of his knowledge and skill, yet is injured thereby, he is responsible for that. The hadeeth here is clear and obvious.

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[1] An-Nasaa’ee (4830, 4831), Saheeh Ibn Maajah (2791), Aboo Daawood (4586) – Hasan (Sh Al-Albaanee).

[2] i.e. Ibn-ul-Qayyim’s comment

[From At–Tibb-un-Nabawee by Ibn-ul-Qayyim, translated by P. Johnstone, pp101-106, with additional takhreej of the ahadeeth]