Author: Dareen Abu Qbetah
University: Jordan University
Medical malpractice cases in Jordan have increasingly drawn attention to the non-pecuniary damages suffered by patients with intangible harms such as emotional distress, pain, and loss of dignity. Unlike pecuniary damages, which compensate for measurable financial losses, non-pecuniary damages address the psychological and moral impact of medical errors.
Under Article 256 of the Jordanian Civil Code, any injurious act obligates the perpetrator to compensate the victim, even if the harm is non-material. This broad provision forms the legal basis for awarding non-pecuniary damages, including in cases of medical negligence. However, the Civil Code does not explicitly define or categorize non-pecuniary harm, leaving much to judicial interpretation.
The Medical and Health Liability Law No. 25 of 2018 further regulates malpractice claims, emphasizing the duty of care and informed consent, and establishing mechanisms for patient complaints. Yet, this law also lacks detailed provisions on how non-pecuniary damages should be assessed or quantified, leading to inconsistencies in judicial rulings.
Legal scholars have noted that Jordanian courts often rely on Islamic jurisprudence and comparative law, particularly Egyptian and French systems, to interpret moral damages. This has led to a cautious approach, with relatively modest awards compared to international standards.
In sum, while Jordanian law recognizes non-pecuniary damages in theory, their application in medical malpractice cases remains underdeveloped and uneven, calling for clearer statutory guidance and judicial consistency.
1.Understanding Non-Pecuniary Damages
1. Definition
Non-pecuniary damages refer to compensation for harm that does not involve financial loss. These damages cover the emotional and psychological impact of an injury, rather than expenses like hospital bills or lost income.
Examples include:
Pain and suffering, Fear, anxiety, or depression, Loss of dignity or reputation,Loss of enjoyment of life, Grief from losing a loved one.
They are harder to measure because they deal with personal feelings and mental health, not with money directly spent or lost.
2. Legal Recognition in Jordan:
Under Jordanian civil law, non-pecuniary damages are acknowledged through Article 256 of the Civil Code, which establishes liability for any harmful act, whether material or moral. This provision allows emotional harm resulting from medical negligence to be compensable, even in the absence of physical injury. However, the law does not specifically define the nature of non-pecuniary damages or provide criteria for quantifying them. As a result, judges exercise significant discretion when assessing such claims, often relying on expert medical or psychiatric evaluations to determine psychological harm. In doing so, courts frequently turn to Islamic jurisprudence, particularly the concept of (moral injury) as well as comparative legal models from Egypt and France, where principles concerning moral compensation are more developed and systematically applied.
3. Academic and Judicial Commentary: Legal scholars such as Dr. Mohammad Al-Zawahreh and Dr. Izzat Al-Khatib note that Jordanian courts recognize non-pecuniary harm, but compensation is usually minimal and inconsistent. Judges tend to award small sums, even when emotional harm is clearly shown.
2. Real-World Illustration: Minimal Compensation for Moral Harm
In Jordan, courts often apply Article 256 of the Civil Code, which allows compensation for any injurious act, including non-material harm. However, due to the lack of statutory guidelines and conservative judicial practice, awards for non-pecuniary damages, such as emotional trauma or loss of dignity, can be surprisingly low.
Hypothetical Case Example:
Imagine a patient named Layla, who underwent a surgical procedure without proper informed consent. The operation left her with no physical complications, but she suffered severe psychological distress, including anxiety and loss of trust in medical professionals. She filed a civil claim for moral damages.
Despite psychiatric evaluations confirming her emotional suffering, the court awarded her only 500 Jordanian Dinars in non-pecuniary compensation. The reasoning?
1.No permanent physical injury
2.No loss of income
3.Lack of clear statutory criteria for moral harm valuation
This case reflects a broader trend in Jordanian jurisprudence: non-pecuniary damages are often symbolic, not restorative.
3. Legal Foundations and Judicial Discretion in Jordanian Civil Law:
A. Normative Basis in the Civil Code
The primary legal foundation for non-pecuniary damages in Jordanian civil liability is Article 256 of the Civil Code (No. 43 of 1976), which provides that: “Every injurious act shall render the person who commits it liable for damages even if he is not discerning.”
This provision establishes broad tortious liability, including for non-material harm. Scholars argue that the phrase “injurious act” encompasses moral and psychological injury alongside physical harm. However, the absence of specific language detailing categories of damage introduces interpretive ambiguity.
B. Medical Liability Legislation
The Medical and Health Liability Law No. 25 of 2018 represents a pivotal development in Jordanian malpractice regulation. While it introduces mechanisms for patient protection, such as mandatory informed consent and clearer standards of care, it does not codify the evaluation or quantification of non-pecuniary damage. This omission has led to doctrinal fragmentation and uneven judicial application, as highlighted in the work of Dr. Mohammad Al-Zawahreh (2024), who observes that courts “navigate compensatory discretion in the absence of legislative scaffolding.”
C. Judicial Discretion and Interpretive Tools
In Jordan, when it comes to compensating patients for non-pecuniary harm, like trauma, anxiety, or a loss of dignity, the law offers room, but not a roadmap. Judges have wide latitude in deciding whether someone should be compensated and for how much, because the Civil Code stops short of defining what emotional or reputational harm actually looks like, let alone how to value it.
So where do they turn? Quite often, Jordanian courts draw from the layered tapestry of Islamic jurisprudence, which argues that moral injury deserves real, restorative acknowledgment. In Egypt, they borrow legal reasoning rooted in shared historical codes. And occasionally, French doctrine enters the conversation offering ideas about balancing fault and fairness when pain can’t be counted in bills and receipts.
In spite of this cross-cultural mix of influence, there is no consistency in the manner in which judgments are delivered. Some situations conclude with symbolic damages, 500 to 1,000 Jordanian Dinars, even if psychiatric reports indicate severe psychological damage. It presents the challenging query: is the principle of restitution in integrum the concept that victims are to be returned to their pre-damage condition merely lip service when pain is not quantified?
What you get is a legal system that acknowledges non-pecuniary damage in principle but trips over it in practice. It’s as if it possesses the vocabulary to explain moral injury, but not the yardstick to quantify it.
D. Role of Expert Testimony
In the absence of statutory guidance, judges rely heavily on psychiatric and psychological expert reports to assess harm severity. While this practice supports evidentiary rigor, it also underscores the need for procedural clarity not all courts weigh such testimony equally, and compensatory outcomes diverge significantly across similar factual matrices.
4.Learning from France: A Clearer Approach to Non-Pecuniary Damages
French law offers a more structured way of handling non-pecuniary damages in medical malpractice cases. Since the Patients’ Rights Act of 2002 (known as the Kouchner Law), victims of medical errors can receive compensation not only for financial losses, but also for emotional harm, pain, suffering, and loss of dignity.
French courts use clear categories and expert evaluations to decide on compensation amounts, and in serious cases, non-pecuniary damages can reach hundreds of thousands of euros. There is also an option to avoid court and apply through special regional commissions. These bodies work with medical experts and offer faster, easier access to compensation especially when proving fault is difficult. Compared to Jordan, where non-pecuniary awards are often symbolic and depend heavily on a judge’s discretion, the French system provides:
Better definitions and clearer rules, Independent institutions to assess harm, Greater consistency in judgments
This model shows how Jordan could strengthen patient rights by making non-material harm more visible and properly valued.
5. Reforming the System,recommendations to Improve Justice for Emotional Harm in Jordan:
Jordan recognizes emotional harm resulting from medical malpractice, but the compensation options are limited. Non-pecuniary damages are allowable under the law. However, the law provides no definitions or instructions on how to consider them. This is a problem; as a result, an arbitrary process, where some patients are compensated properly but many not at all and in some instances with what appeared to be a symbolic award. To enhance fairness, several reforms are required. First, the civil code should define legal terms that refer to emotional harm, including “loss of dignity” and “mental suffering,” so these terms inform judicial decisions. Second, standardized and uniform compensation tools could provide judges, lawyers, and plaintiff patients guidance for determining compensation that is not completely arbitrary. France has ‘charts’ to assist judges in assigning compensation amounts and it is recommended that Jordan also uses similar models.
Third, judges and medical and legal professionals could review disputes independently prior to trial so that they can quickly make compensation recommendations which judges can then award. Fourth, judges and lawyers could be trained to understand and utilize psychological harm so decisions would be conducted with sound evidence and better in court. Finally, Jordan could allow mediation and conciliation for alternative options. Following France’s example, Jordan could establish specialized commissions to resolve unresolvable claims and advance claims as to quick resolutions for patients, without the stress of litigation.
This work will establish the Jordanian justice system with values of professional fairness and seriousness in terms of emotional injuries from medical malpractice.
Conclusion
Treating Moral Injury with Weight
Medical malpractice harms more than the body; it contorts emotions, too. Jordanian civil law recognizes this in principle, but as a new paradigm, it lags in practice. While patients are entitled to non-pecuniary damages according to law, in reality most courts award judgments insufficient for the suffering endured. The patient who has navigated trauma, fear, and indignity in the seeking of care, and perhaps even injustice, and experienced harm by negligent treatment, deserves more than trivial respite. It deserves a form of compensation that constitutes fair and structured justice. The introduction of better definitions, guidelines developed by experts, and alternative dispute methods (like those in France), will help Jordan emerge with a justice system that truly takes into account the moral responsibility of emotional harm. This includes training professionals and making adjustments to court procedures to minimize instances in which psychological injury is dismissed or trivialized.
Justice restores what was lost, even where loss cannot be restored to dollar-for-dollar monetary compensation. While Jordan works towards institutionalizing its medical and legal sectors, wrestling with the invisible burdens of emotional suffering will be key to being truly compassionate and fully accountable.
Resources:
https://wilmap.stanford.edu/entries/civil-code-law-no-43-1976
Introducing a Medical Liability Law in Jordan in an Attempt to Regulate Medical Negligence Claims
https://www.jpu.edu.jo/juris/uploads/publication/sidr/20221125-0011153882.pdf
https://academic.oup.com/cjcl/article-abstract/3/2/268/2365868?login=false
About the Author
