A surgical error, a missed diagnosis, a pharmacy mistake — what can a patient in Kuwait actually recover, and how is fault proved? Medical liability claims turn on expert evidence and on records that are held by the other side. In this article, Attorney Meshari Obeid Alenezi explains how medical malpractice claims work in Kuwait.
The legal basis
- Duty of care: a practitioner owes a duty to exercise the care of a reasonably competent practitioner in the same specialty and circumstances.
- Obligation of means, not result: the doctor undertakes to provide diligent care, not to guarantee recovery. A poor outcome is not fault by itself.
- The exception: where the intervention is largely a matter of technique, such as certain cosmetic procedures, the expectation is closer to a defined result.
- Three elements: fault, damage, and a causal link between them. All three must be established.
- Parallel tracks: a civil compensation claim and a criminal complaint are separate proceedings with different standards.
Who can be liable
| Party | Basis of liability |
|---|---|
| The treating practitioner | Personal fault in diagnosis, technique or follow-up |
| The hospital or clinic | Vicarious liability for staff, and its own fault in equipment, staffing or hygiene |
| The pharmacist | Dispensing error, wrong dose, failure to check interactions |
| The laboratory or imaging centre | Erroneous or delayed reporting |
| The manufacturer | Defective device or product |
Suing the institution as well as the individual usually improves the prospect of actual recovery.
Informed consent
- The requirement: the patient must be informed of the nature of the procedure, its material risks and the available alternatives.
- Not a waiver: a signed consent form does not excuse negligent performance. It addresses risk, not fault.
- Defective consent: consent obtained without real disclosure, or from a patient not in a position to understand, is open to challenge.
- Emergencies: where the patient cannot consent and intervention is urgent, different rules apply.
- Minors and incapacitated patients: consent is given by the person with authority over them, within the limits of the patient’s best interests.
Evidence and the medical record
- The record is the case: notes, orders, imaging, laboratory results and the operation report determine the outcome.
- Request it early: a patient is entitled to their medical record, and a formal written request creates a dated trail.
- Non-production: where a provider withholds records without justification, the court may draw an inference against it.
- Expert determination: courts routinely appoint medical experts, and the report is usually the pivot of the judgment.
- Engage with the expert: attending the expert meeting and submitting a reasoned memorandum matters more than the pleadings.
- Forensic medicine: in death cases, the forensic report is central to causation.
What can be recovered
- Treatment costs: corrective procedures and continuing care.
- Lost income: during incapacity, and future loss where impairment is permanent.
- Permanent impairment: assessed by reference to the degree of disability.
- Moral damage: pain, suffering and disfigurement.
- Death cases: the diya was raised to KD 20,000 by Decree-Law No. 8 of 2025 amending Article 251 of the Civil Code, and it is distributed among the heirs.
- Separate heads: other proved heads of damage may be claimed alongside, so settling for the diya alone can understate the claim.
Steps to take
- Request the complete file in writing and keep proof of the request.
- Obtain an independent opinion before commencing proceedings.
- Preserve everything: prescriptions, invoices, images, appointment records and messages.
- Note the timing: claims are subject to limitation periods, and delay also degrades the evidence.
- Do not sign a release early: a discharge signed before the full extent of harm is known can extinguish the claim.
- Consider both tracks: a complaint to the regulator, a civil claim, or both, depending on the facts.
Frequently asked questions
The operation failed. Is that automatically malpractice?
No. A doctor’s obligation is generally one of means, so an unsuccessful outcome is not fault in itself. What must be shown is a departure from the standard of a reasonably competent practitioner, together with damage and causation. That is why an independent medical opinion at the outset is worth more than any assertion.
The hospital refuses to give me my file. What can I do?
Make the request in writing and keep the proof. A patient is entitled to their medical record, and unjustified refusal can be held against the provider. If refusal continues, the record can be sought through the court, and the refusal itself becomes part of your case.
How much is a fatal medical error worth?
The full diya is KD 20,000 following Decree-Law No. 8 of 2025, distributed among the heirs according to their shares. Other heads of damage may be claimed alongside it depending on the facts, so an insurer’s first offer is rarely the measure of the claim.
Can I complain and also sue?
Yes. A complaint to the competent health authority and a civil claim for compensation are separate routes with different objectives and standards. The findings in one can support the other, and the sequence is a matter of strategy in each case.
If you or a family member has suffered harm from medical treatment, you may book an appointment with the office of Attorney Meshari Obeid Alenezi or call 22204490.
Disclaimer: this article provides general legal information and is not a substitute for specialised legal advice.
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