This study elucidated a glimpse on ancient Mesopotamia' society
social and judicial order. It gives flavor of rough justice of (Eye for
eye) principle. The code by its nature does not show how these laws
were implemented. On the other hand due to difficulties in
understanding the archeological clay tablets preserved till today did
not cast light on the total picture. Many researchers [9, 10, 11 ,12] summarized medicine in Hammurabi's Code of Law as follow: Hammurabi made the first declaration of human rights in history:”To cause justice to prevail in the land. . ., that the strong may not oppress the weak. . .”.
The practice of medicine was regulated by the state. Malpractice was
recognized and was punishable by law. Hammurabi's Code of Law
specified: “If a surgeon performs a major operation on an 'awelum'
(nobleman), with a bronze lancet and caused the death of this man, they
shall cut off his hands”. However there is no proof that such a
punishment was ever carried out. Hammurabi also specified fees for
lifesaving operations: “Ten shekels of silver for ‘awelum', five shekels for ‘mushkenum' (poor man) and two shekels for a slave”.
No analysis was made of veterinary medicine or wet nursing. The medical
practice was not linked to pre-requirement regarding learning the use
of knife in surgery but made strict conditions of his therapy and
linked it to good outcome.
Ethical And Legal Aspects Of Hammurabi's Code
indicated the implementing of legal processing in management of human
nobles and slaves on one side and animals on the other: “ Carelessness
and neglect were severely punished, as in the case of the unskillful
physician, if it led to loss of life or limb, his hands were cut off, a
slave had to be replaced, the loss of his eye paid for to half his
value; a veterinary surgeon who caused the death of an ox or ass paid
quarter value; a builder, whose careless workmanship caused death, lost
his life or paid for it by the death of his child, replaced slave or
goods, and in any case had to rebuild the house or make good any
damages due to defective building and repair the defect as well. The
boat-builder had to make good any defect of construction or damage due
to it for a year's warranty.” 
The Tribunal system of Babylon
We can summarize the legal system as follow
Lawsuit: the plaintiff offered his own plea. Although there is no mention of advocates, but the plea might be in writing helped by the notary.
The judge dealt with the plea, called the other parties before him and
sent for the witnesses, or he might adjourn the case for their
production, specifying a time up to six months on a fixed day.
- The more important cases, especially those involving
life and death, were tried by a bench of judges, a body of elders, who
shared in the decision, but whose exact function is not clear.
- Agreements, declarations and non-contentious cases
are usually witnessed by one judge and twelve elders. Parties and
witnesses were put on oath.
- The penalty for the false witness was usually that which would have been awarded the convicted criminal.
- In matters beyond the knowledge of men, as the guilt
or innocence of an alleged wizard or a suspected wife, the ordeal by
water was used. The accused jumped into the river, and the innocent
swam while the guilty drowned. The accused could clear himself by oath
where his own knowledge was alone available.
- The plaintiff could swear to his loss by brigands,
as to goods claimed, the price paid for a slave purchased abroad or the
sum due to him. But great stress was laid on the production of written
evidence. It was a serious thing to lose a document. The judges might
be satisfied of its existence and terms by the evidence of the
witnesses to it, and then issue an order that whenever found it should
be given up. Contracts annulled were ordered to be broken. The court
might go a journey to view the property and even take with them the
sacred oath symbols.
- The decision given was embodied in writing, sealed
and witnessed by the judges, the elders, witnesses and a scribe. Women
might act in all these capacities. The parties swore an oath, embodied
in the document, to observe its stipulations. Each took a copy and one
was held by the scribe to be stored in the archives.
- Appeal to the king was allowed and is well attested.
The judges at Babylon seem to have formed a superior court to those of
provincial towns, but a defendant might elect to answer the charge
before the local court and refuse to plead at Babylon.
- Finally, it may be noted that many immoral acts,
such as the use of false weights, lying, &c., which could not be
brought into court, are severely denounced in the Omen Tablets as
likely to bring the offender into “the hand of God” as opposed to “the
hand of the king.”.
- The commonest of all penalties was a fine. This is
awarded by the Code for corporal injuries to a muskinu or slave (paid
to his master); for damages done to property, for breach of contract.
The restoration of goods appropriated, illegally bought or damaged by
neglect, was usually accompanied by a fine, giving it the form of
multiple restoration. This might be double, treble, fourfold, fivefold,
six folds, tenfold, twelvefold, even thirtyfold, according to the
enormity of the offence.
The legal affecting physicians
and other similar craftsmen are building on lake of intention. So if a
patient lost his life the physician may be sentenced to have his hand
cutoff, if the patient was a nobleman, and paid the price of the slave
to his master. “The Code recognized the importance of intention.
A man who killed another in a quarrel must swear he did not do so
intentionally, and was then only fined according to the rank of the
deceased. The Code does not say what would be the penalty of murder,
but death is so often awarded where death is caused that we can hardly
doubt that the murderer was put to death. If the assault only led to
injury and was unintentional, the assailant in a quarrel had to pay the
doctor's fees. A brander, induced to remove a slave's identification
mark, could swear to his ignorance and was free. The owner of an ox
which gored a man on the street was only responsible for damages if,
the ox was known by him to be vicious, even if it caused death. If the
mancipium died a natural death under the creditor's hand, the creditor
was scot free. In ordinary cases responsibility was not demanded for
accident or for more than proper care. Poverty excused bigamy on the
part of a deserted wife. Throughout the Code respect is paid to status.
Suspicion was not enough. The criminal must be taken in the act, e.g.
the adulterer, ravisher, &c. A man could not be convicted of theft
unless the goods were found in his possession.”
cotes in medical literature refer to the code in few sentences to
indicate the severity of the punishment and some indicated the managed
health care and compensation for the patient concept's root [14,15,16,17,18,19,20].
As for the main purpose of this paper the authors would wonder if the
medical litigations and medical malpractice issues in contemporary
societies and if they offered better solutions. Considering some recent
literatures dealing with this issue we cote two examples one in Kingdom
of Saudi Arabia (KSA) and another in United State of America (USA)
which may cast light on the possible need for better solutions.
Professional liability in KSA as an entity covers three different aspects:
- The Civil liability which is the responsibility of a physician
towards the patient when harm being inflicted as a result of wrong
direct action, i.e. against medical rules, from the physician or as
result of proven negligence,
- The Punitive liability that deals with physicians who violate the
rules and regulations of medical practice even with no subsequent harm
resulted to the patient, and
- The Disciplinary liability where a physician failed to meet the professional standards, requirements and ethics [21,22,23,24,25,26].
Finally claim may lead to a verdict of one or more of the following:
- Issuing administrative warning
- Financial compensation, to the patient of his dependents, according to Islamic Shariaah's law,
- Prohibiting the physician from medical practice and withdrawal of medical license or
- Imprisonment in some cases [21,22,23,24,25,26].
will show that medical litigations are in transition between medical
supremacy fading away to situation where the physician is questioned,
investigated and sentenced either to bay compensation and or imprisoned.
USA the medical litigation system and lawsuits against doctors are
notorious for high compensation in settlements which made medicine a
protective, costing more in term of excessive investigations and fee
terms. This may deprive the patient from highly complicated medical
interventions. The call for urgent reform was outlined recently as
follow: “Indeed, in some specialties, high premiums are forcing
physicians to give up performing certain high-risk procedures, leaving
patients without access to a full range of medical services. …it has
become clear …that if we are to find a fair and equitable solution to
this complex problem, all parties — physicians, hospitals, insurers,
and patients — must work together. Instead of focusing on the few areas
of intense disagreement, such as the possibility of mandating caps on
the financial damages awarded to patients, we believe that the
discussion should center on a more fundamental issue: the need to
improve patient safety”
It seems that the relation between patient and physician is not a
simple contract. It is political issue concerning health care and the
service provider and cost provider causing many forces applying
tremendous pressure on this complex modern view of patient autonomy and
physician autonomy. Just when it appears that the persistent issue of
medical error has been bumped from the national spotlight, a
particularly egregious incident will surface to catapult the topic back
to the front pages, reignite public outcry, and galvanize demands for
change. Media coverage and public perception aside, however, the scope
and pervasiveness of this problem are undeniable. More than one-fourth
of U.S. A. adults have experienced a medical error, despite the fact
that the United States spends much more on health care than any other
country.  The solution is far from indeed. The debate is between two opposing views: “Providers
and hospitals insist that caps on damage awards in medical malpractice
suits are necessary to stem rising malpractice insurance rates.  The other side is also strongly arguing. “Trial lawyers counter that spiking rates are more attributable to trends in liability insurance markets. . All are defending and agreeing that that patient safety matters
conclusion; the surgical care in the time of Hammurabi was
authoritarian; there were possibility of legal actions to insure
justice and equity particular to each social class in the kingdom. Code
of Hammurabi can be considered the genesis of the current concepts of
There is no final answer. Human civilization continues the drive for
better condition of deals committing the justice system to the echoes
of the society. There is no absolute solution.