Botched surgery kills man, wife awaits justice

Dubai: It was bad enough that Nahid Nazir Shah, a young Indian housewife, was left to fend for herself and her 16-month-old son when her husband, 37, died after an alleged botched operation at a private hospital in Dubai in 2006.

Five years on, a protracted legal battle has left her even more distraught. In an open appeal to the authorities, she asked, "Where is the justice? What about my rights? Please help me to support my son and aged in-laws back home."

September 2006

Her legal consultant Amr Al Esaly said it all started on September 2, 2006, when marketing executive Shawkat Nazir Shah, the only son of his parents, underwent sinus surgery at a private hospital in Deira. But the routine procedure allegedly proved fatal. Shah died of a brain haemorrhage 20 days later. The Department of Health and Medical Services investigation concluded, "There was negligence by the treating ENT surgeon. There was mismanagement of the patient."

Al Esaly said the Public Prosecution, which investigated the case following a police complaint filed by the family, referred it to the Criminal Court, which passed its judgment against the ENT surgeon, S.W.A., on December 13, 2007.

S.W.A., who was present in court, was served a sentence of six months in jail with a penalty of Dh5,000, in addition to which he had to pay blood money of Dh200,000 to the victim's family. "But the judge used his discretionary powers and stayed the imprisonment for three years," said Al Esaly.

He said on February 3, 2008, S.W.A. appealed against the judgment submitted to the Appeals Court by his lawyers while he himself allegedly went ‘missing'. The court received the appeal in absentia and rejected it.

Meanwhile, Al Esaly said Nahid filed a separate civil case against the doctor, the hospital and the insurance company, seeking physical damages of Dh1.9 million, in addition to a moral compensation of Dh1 million. But as is the procedure, the civil case was suspended until the judgment in the criminal case was final.

Today, Al Esaly said Nahid cannot claim any of the damages in the civil case until the criminal case is settled.

He said the doctor is unlikely to appear in court to appeal the in absentia judgment. Under the circumstances, he had urged the Public Prosecution to issue a summons for the appeals judgment under Article 159 (Para 2), which in effect says that if a person cannot be located, the summons with a hearing date can be delivered to the respective police station, latest residence or place in which the crime took place.

In this case, Al Esaly claimed that the doctor can be summoned at the hospital in order to make the penal judgment final.

"My request to pass the final judgment is to enable the heirs to receive their entitlements under the civil case," he said.

"But the Public Prosecution has rejected the request, saying that the law does not permit summons to be issued on the place of work. At the same time, they have asked us to get a directive from the Court of Cassation," said Al Esaly.

Without commenting on this particular case, an official in the Public Prosecution told XPRESS once a verdict is delivered, the files are transferred to the penal execution section.

"When the suspect's whereabouts are unknown and he is at large, prosecutors put an order to arrest the suspects at all borders and ports. However, in the case where a suspect is believed to be outside the country, an investigation is launched to find the suspect and procedures will be executed for the suspect to be arrested and serve the sentence," he said. "Prosecutors then send the case file to the police who issue a red Interpol notice."

The attorney said he has also made several appeals to the court to apply other provisions of the law on humanitarian grounds, but with no success. "Please help us," pleaded Nahid.

- With inputs from Lubna Bagsair