Determination of Damages in Medical Negligence Cases: An Overview of Sharī‘ah & English Law

Abstract

Medical profession is considered as one of the noblest professions of the world. Despite the wealth and social prestige that this profession enjoys, it attracts a large number of complaints too from patients and their families. Sometimes these complaints are genuine and medical practitioners are responsible for the harm thus caused. The NHS has a proper mechanism of payment and pays in billions for indemnification for medical errors. However, there is no uniform criteria for quantification of the loss. Pakistan follows English Law in cases of medical negligence. However, Pakistan lags way behind in compensating the claimants.  Sharī‘ah, on the other hand, has a complete tariff system ‘Diyah’ for indemnification in cases of homicide and bodily injuries. Pakistan can learn from English law, NHS and Sharī‘ah and adopt a uniform mechanism for monetary liability and manage it through proper institutions. This article aims at revisiting the mechanism of indemnification in both legal systems and scrutinizing the shortcomings and giving recommendations.