Many people resort to alternative medicine for various reasons, one of the most important being its proven therapeutic effectiveness in numerous studies and medical trials. Its significance lies in its association with the traditional heritage and culture of each country, leading individuals to rely on and resort to it despite advancements in modern medicine. However, there are some incorrect practices that may cause serious harm to individuals, necessitating the need to assign and limit these practices to licensed alternative medicine practitioners, and to define civil liability, whether contractual or negligent, ultimately reaching compensation for the injured party. The Kingdom of Saudi Arabia has paid attention to and organized the practices of alternative medicine due to its importance and connection to human health, the numerous violations and errors committed in this field, and the trust placed in alternative medicine practitioners with regard to human health and life. Therefore, the practitioner must master his work to the best of his ability, fulfill the obligations contained in the medical profession's code of ethics, the health professions law, and the regulatory regulations of the National Center for Alternative and Complementary Medicine.
**Definition of Alternative Medicine: **
Alternative medicine is defined as: any therapeutic method that does not use chemical drugs and medications to treat diseases, but rather focuses on the use of herbs and the collection, selection, and formulation of herbal medicines for the purpose of treating diseases. It requires prior knowledge of the properties of these herbs, their nature of action on the human body, and the extent of their side effects if taken incorrectly. It also includes a series of therapeutic practices performed by the practitioner, such as cupping, acupuncture, and other practices that vary according to the culture, beliefs, and popular heritage of each society.
**Types of Alternative Medicine Practices: **
The Saudi regulatory regulations for alternative and complementary medicine clarify that alternative medicine practices are the types of complementary alternative medicine that are licensed to be practiced within the Kingdom of Saudi Arabia. These include cupping, Chinese acupuncture, osteopathic treatment, chiropractic treatment, naturopathy, and any future additions by the National Center. Some of the most important practices are:
First: Cupping
Cupping is defined as: the creation of congestion on the skin surface as a result of placing a cup and absorbing the air inside it to create negative pressure. If the skin is scarified or punctured, it becomes wet or bloody cupping.
There are two types of cupping:
Dry cupping is named so because it is performed without the use of a scalpel, unlike wet cupping. In Arabic, dry cupping is referred to as cupping without a scalpel. The mechanism of dry cupping involves placing an air cup in specific areas of the human body, where it collects blood under the cup. The blood and fluids that have accumulated in the tissues are then suctioned or drawn out. It has not been proven in the prophetic tradition that the Prophet, peace be upon him, practiced dry cupping. It is shown from the Hadiths that the Prophet practiced wet cupping.
Secondly: Chinese acupuncture therapy:
Chinese acupuncture therapy refers to very thin needles that are inserted into specific locations in the body to treat or prevent certain diseases. It is a peaceful and natural method of treating many diseases and imbalances in the human body, as it involves treating all aspects of the body, whether physical, mental, or emotional. Chinese acupuncture therapy has been used to treat many serious diseases and to alleviate their pain, including all types of paralysis, rheumatism, migraine headaches, anxiety, insomnia, depression, diabetes, viral hepatitis, and many other conditions. However, there are several precautions to consider when treating with acupuncture, as it is not recommended for pregnant women, hemophilia patients, or patients with cardiovascular disorders.
Thirdly: Herbal medicine:
Medical herbs and plants refer to any plant or part of a plant (leaves, roots, stems, flowers) that is used in its natural state or after being dried and ground into a powder, and that has a medical or therapeutic claim. Herbal medicine is one of the most widespread branches of medicine, and herbs and their uses are diverse, with over 750,000 plant species. Some of these plants have been studied and their effectiveness in treatment has been proven through trials. Herbal medicine is one of the oldest branches of medicine, as humans relied heavily on the trial-and-error method of testing herbs. Despite the primitive nature of this method, it led to the discovery of the effectiveness and benefits of these herbs, such as the successful trial of the plant called Al-Bare. The plant can be boiled and drunk for treating kidney and urinary tract diseases. With the advancement of science, this plant was studied, a compound was isolated from it, and its effect on the body was studied, and it was found to be effective in treating kidney colic and kidney stones. It is a safe compound and has no side effects if used in the specified dose.
It is important to exercise caution when using herbs and plants, as some of them can cause side effects and serious complications. It is necessary to consult a doctor beforehand and not to take these herbs based on recommendations or advice from non-specialists. Some herbs do not suit everyone, and mixing medical herbs with some modern medications can cause serious complications. Excessive consumption of these herbs can also lead to adverse effects.
Additionally, the Saudi alternative and complementary medicine system does not specifically include herbal medicine as a practice. The regulation of herbal medicine is left to the Food and Drug Authority, which has issued regulations regarding herbal medicine and the sale of pharmaceutical products, dietary supplements, or prohibited substances. According to Article 20 of the Health Requirements for Herbal Shops regulations, it is completely prohibited to display or sell drugs, pharmaceutical products used for human treatment, dietary supplements, or prohibited substances. Only medicinal herbs may be sold as raw materials.
It is important to regulate herbal medicine and include it as part of alternative and complementary medicine practices, as it is becoming more widespread among the general public, and mixing substances without experience or knowledge can be dangerous.
Fourth: Cupping Therapy
Cupping therapy is known as the exposure of a specific area of the body to heat for the purpose of treatment, and the specific area includes the skin, blood vessels, and others. Cupping therapy has been used as a therapeutic method since ancient times, and the methods and tools used for cupping therapy have evolved over time. Cupping can be performed using fire, where the affected area is directly cupped using a wick, herb, or similar methods. This method is known to be one of the most intense forms of cupping in terms of pain and impact. Cupping can also be performed using metals that are directly exposed to fire and then used in the area to be treated. With the advancement of techniques, electricity has also been used, known as electroshock therapy, which is based on a low-voltage electrical current that leads to the improvement of the patient's mental state. It regulates the patient's nervous system and is used in the treatment of psychological disorders such as severe depression. Chemical cupping is also a recent common method, where chemical acids are used to burn the tissue to be treated, as well as laser cupping.
The regulatory authority did not include cupping therapy among the legitimate practices of alternative medicine, nor has it been licensed for cupping therapy. It has been proven that anyone who practices cupping therapy for the purpose of treatment is in violation of the regulations. The Ministry of Health has arrested people claiming to provide cupping therapy in collaboration with security authorities in the Hail region.
Fifth: Manual Chiropractic Therapy
Bone and spinal cord injuries often occur due to accidents, carrying heavy objects, or sitting in the wrong position. These injuries can lead to inflammation and pain that affect various activities, and the need arises to restore joint movement or correct it to its previous state before the injury. This can be done through various methods of manual therapy, depending on the type of injury, such as bone or spinal cord chiropractic therapy. This method can benefit most injuries, especially lower back pain, and can be complementary to medical treatment, as it helps relieve muscle problems in the affected person.
Manual chiropractic therapy is considered one of the most prominent types of alternative medicine practices. The primary goal of manual therapy is to rehabilitate disability. Both bone and spinal cord chiropractic therapy are regulated by the Saudi regulatory authority and are included in the supplementary regulations of alternative medicine. The purpose of bone chiropractic therapy is to diagnose, treat, and prevent disorders of the musculoskeletal system and the effects of these disorders on general health, with a focus on manual techniques, including joint modification and alignment. Similarly, spinal cord chiropractic therapy aims to diagnose, treat, and prevent disorders of the musculoskeletal system and the effects of these disorders on general health, with a focus on manual techniques, including joint modification and alignment.
The concept of civil liability for practitioners of alternative medicine:
Civil liability refers to a situation where a person fails to fulfill an obligation imposed upon them either by law or by agreement, resulting in harm, and this harm is compensated for as a result of the individual's failure to comply with the agreement between the parties or violation of a legal rule. Civil liability can be divided into contractual liability and tort liability, and scholars and researchers have differed in determining the nature of civil liability for practitioners of alternative medicine, whether it is contractual liability stemming from the contract, or tort liability stemming from wrongful acts or unauthorized conduct.
Tort liability is based on the practitioner's failure to comply with obligations or duties imposed on them by law, such as regulations and other requirements, which mandate not to harm others. This is undoubtedly a fundamental difference between contractual and tort liability, as contractual liability arises when there is a breach of an obligation arising from the contract and not the law. For example, if an alternative medicine practitioner fails to perform a medical procedure on a critically ill patient, resulting in the patient's death or worsening condition, the practitioner's liability would be based on their failure to comply with a legal obligation imposed by the regulations. Article 19 of the Health Professions Regulation stipulates that "in cases of accidents, emergencies, or critical medical conditions that require immediate or necessary medical intervention to save the life of the patient or save an organ from harm, or to prevent serious harm resulting from delayed intervention and the inability to obtain the patient's or their representative's or guardian's consent at the appropriate time, the healthcare practitioner must perform the medical procedure without waiting for such consent."
The liability of alternative medicine practitioners is contractual if there is a valid contract between the patient and the practitioner, and the harm is a result of the practitioner's breach of contractual obligations. Contractual liability is primarily based on the medical contract, and if the contractual relationship is absent, the practitioner's liability becomes tort liability.
Contractual liability is the compensation for the harm that has affected one of the parties to the contract as a result of a mistake made by the practitioner in fulfilling their obligations, either by failing to fulfill the obligation, partially or poorly fulfilling it, or delaying the fulfillment of their obligation.
The elements of civil liability are as follows:
1- Mistake:
Medical error, from a legal perspective, is any deviation or departure by the physician from the medical rules and principles that are theoretically and practically established and recognized, or any violation of the physician's obligations of care, caution, and vigilance imposed by the law and professional duties, resulting in significant harm while the physician had the ability and duty to be vigilant and cautious in their actions to avoid harming the patient.
The technical rules and principles of the medical profession refer to the fixed principles and rules recognized among physicians theoretically and practically, which the physician must know when performing medical work. The physician must develop their knowledge and keep up with scientific developments and recent discoveries in their field of specialization. They must adhere to established medical standards and guidelines to ensure that they provide the best possible care to their patients.
The Saudi Health Practitioners Regulation identifies what are considered medical errors, including:
1. Error in treatment or lack of follow-up.
2. Ignorance of technical matters that those in their field of expertise are expected to be familiar with.
3. Performing experimental or unprecedented surgeries on humans in violation of established regulations.
4. Conducting experiments or scientific research that is not approved by the patient.
5. Administering medication to the patient for testing purposes.
6. Using machines or medical devices without sufficient knowledge of their proper use or without taking adequate precautions to prevent harm from their use.
7. Failure to exercise proper supervision and oversight.
8. Failure to consult with someone whose expertise is required in the patient's case.
Among the errors that require compensation in case of harm to the patient, as stated by Saudi regulations, is the use of medical devices by a practitioner without sufficient knowledge of their proper use or without taking adequate precautions. Also, ignorance of technical matters that those in their field of expertise are expected to be familiar with, such as performing Hijama (cupping therapy) in a prohibited area, could lead to severe harm or even death. The practitioner's error in treatment is also considered a medical error, as the practitioner may commit an error that causes harm to the patient, such as improper acupuncture needle insertion.
2- Damage:
Damage, in general, refers to harm that affects a person as a result of an infringement on a legitimate interest or a right. The harm must be established in order for civil liability to arise, and compensation for the patient can only be awarded if harm has been inflicted.
The failure to fully heal the patient does not constitute the establishment of harm, as the practitioner's obligation is not to achieve a cure, but to provide necessary care. If the practitioner fails to provide necessary care due to an error or neglect, then the patient may be entitled to compensation for financial losses such as hospitalization and treatment expenses, as well as for pain and complications suffered during treatment.
Certain conditions must be met for harm to be eligible for compensation, including:
A. The harm must have occurred: The harm that has occurred is one that is certain, whether it is present or will occur in the future. Compensation can only be awarded for harm that has actually occurred and not for potential harm.
The harm includes both physical and financial harm, and also includes harm that will inevitably occur in the future, such as when a person is disabled or disfigured and unable to work due to an injury caused by a practitioner's error in treating a patient's arm, which later leads to paralysis.
Potential harm is harm that has not yet occurred and cannot be compensated for unless it actually occurs.
B - Infringement on a Legitimate Interest or Right:
The material damage must result in an infringement on a legitimate interest or right of the injured party. This interest or right must be legitimate and not in violation of the ethics and prevailing laws of society. For example, a concubine cannot demand compensation for the loss of her concubine who used to support her, as their relationship is not legitimate. The injured party has the right to demand compensation for any harm suffered as a result of medical interventions, such as the loss of a body part or a serious infection. However, the law does not protect illegitimate interests.
C - The Damage must be Direct:
Direct damage refers to any harm resulting from medical error, such as the death of the patient due to the physician's mistake or negligence. Compensation for direct harm can be awarded under tort liability, whether the harm is expected or unexpected.
D - The Damage must be Personal:
The damage must be personal to the claimant in order to be compensated. This means that the harm must have affected the claimant directly. The damage may also be personal with regard to consequential damages arising from the original harm. For example, the emotional pain suffered by a person due to the loss of a loved one as a result of an illegitimate act is a consequential harm that must be proven, and cannot be presumed to exist due to a mere familial relationship.
The damage can be either material or moral. Material damage refers to harm suffered by a person to their body or property, resulting in an infringement on a legitimate interest with monetary value. For example, if a practitioner advises a patient to take a certain medication that results in harm to the patient, such as infection, this is considered material damage. Another example is performing cupping therapy in a way that violates established rules and principles, or using unsterilized equipment that could cause contamination during blood withdrawal.
Moral damage, on the other hand, refers to harm suffered by a person's feelings or emotions as a result of an infringement on their dignity, honor, reputation, or other non-monetary interests that people value in their lives. Moral harm is not limited to physical injuries such as wounds or physical harm, but may also include psychological harm resulting from physical injuries and which may cause severe harm to a person's body and organs, such as attempted murder or loss of income and opportunities. For example, if a doctor reveals confidential information about his patient, causing harm to the patient's reputation and emotions, this is considered moral damage.
Saudi regulations state that any medical error that causes harm to a patient necessitates compensation from the practitioner who committed the error. The regulations do not specify the scope or type of compensation, but Saudi courts have granted compensation for moral damages in medical malpractice cases, based on judicial precedents. For example, if a patient receives incorrect test results indicating that they have HIV and suffers emotional harm as a result, compensation may be awarded to the patient for the moral damage suffered, provided that the error in the test results is proven and the patient's claim for compensation is accepted by the court.
3- Causation:
Causation refers to the existence of a direct relationship between the error committed by the responsible healthcare practitioner and the harm suffered by the patient or victim. The practitioner's error must have been the cause of the harm suffered by the patient. For tort liability to be established against an alternative medicine practitioner, it is not enough that the practitioner committed an error that resulted in physical or moral harm to the patient. There must be a causal link between the error and the harm suffered by the patient. If the harm was caused by factors beyond the control of the practitioner, such as an accident or the patient's own actions, the practitioner cannot be held liable.
For example, a patient may consume a prohibited food or medication despite the practitioner's advice, or may lie to the practitioner about their medical history. In such cases, the practitioner is not obligated to compensate the patient because there is no causal relationship between the error and the harm suffered.
Establishing the Nature of Civil Liability for Alternative Medicine Practitioners:
The Saudi Healthcare Practitioners Regulation does not specify the nature of civil liability for alternative medicine practitioners. In my opinion, the liability of alternative medicine practitioners in Saudi Arabia may be contractual by default, with exceptions for cases of negligence. Alternative medicine practitioners are generally expected to provide their services in private clinics, where patients pay for their services. Article 19 of the Healthcare Practitioners Regulation states that no medical treatment should be carried out without the patient's consent, except in cases of emergencies or critical medical conditions where obtaining consent is not feasible. The requirement for patient consent is a fundamental aspect of any contractual agreement, and thus, the liability of alternative medicine practitioners is primarily contractual. However, in emergencies or critical conditions where patient consent cannot be obtained, alternative medicine practitioners have a legal obligation to intervene and provide medical treatment to save the patient's life. Failure to fulfill this obligation may result in liability for negligence for breaching a legal duty.
Furthermore, if an alternative medicine practitioner works in a public hospital and does not receive payment from the patient, their liability may be based on negligence. However, this situation is rare since alternative medicine practices are typically performed in private clinics.
Article 27 of the Healthcare Practitioners Regulation also states that any clause between the practitioner and the patient that seeks to exempt or limit the practitioner's liability is void. This provision further supports the contractual nature of liability for alternative medicine practitioners, as the regulation prohibits the parties from contracting out of liability.