Author(s):Rini Agrawal

The New Medical Liability Law in the UAE: A New Horizon

“If people understood that doctors weren't divine, perhaps the odor of malpractice might diminish.”

{C}- Richard Selzer

People seek the assistance of professionals with the view of obtaining expert advice on matters that are beyond their proficiency or expertise. While doing so, they rely on these professionals to ensure that their concerns receive a high standard of efficiency. However, these professionals are also bound to make errors in judgment down the line. These errors are considered to constitute an act of professional negligence. But professional negligence varies substantially from carelessness in general since professionals are expected to showcase a minimum standard of expertise in their line of work. Further, the implication of professional negligence has proved to have an adverse effect in the medical sector since an error of judgment may lead to the injury of a patient. However, a doctor who has portrayed an act of negligence in his profession is bound to receive a different treatment from a defendant (criminal) who has intentionally inflicted injury onto another person.

Recent developments in science and technology have taken us far away from where we were a decade ago and compelled the legal system to ponder over outdated provisions that initially dealt with much simpler situations. Hence, in this article, our team of medical lawyers in Abu Dhabi seeks to discuss the new ambit of liability that is likely to fall upon medical professionals in the United Arab Emirates (the UAE) who have caused injury or distress to patients due to their negligence.

The Medical Regime

The lawmakers of the country enacted the Federal Law Number 4 of 2016 (the New Law) with the view of enhancing the provisions relating to the liability that falls upon medical professionals who render their services in a negligent manner. The New Law has repealed Federal Law Number 10 of 2008 (the Old Law) and is expected to bring significant changes onto the existing medical and healthcare regime in the UAE. In general, doctors are supposed to meet the ‘duty of care’ standards while executing their professional commitments to the patients. Hence, any act of negligence may lead to the severe loss or injury to the patients, who expect this duty of care standards from their doctors.

From a legal point of view, a patient may pursue a civil claim against practitioner or health care provider, if they have caused injury or death to a patient because of their negligence or omission. Therefore, the patient is required to prove the following to claim for damages: (i) the professional duty and responsibility of the practitioner towards the patient; (ii) the practitioner had violated the duty of care standards which was due to be performed on a patient; (iii) the injury inflicted on the patient is a compensable injury; (iv) following the duty of care standards could have avoided the severe harm to the patient.

The Ambit of Medical Negligence

The following illustration can help the reader to comprehend the scope of medical negligence: James Turner, a 50-year-old mechanical engineer, had undergone open heart surgery at XYZ Hospital. However, he started losing his vision the following day and had completely lost his sight in a matter of two (2) days. The medical staff at XYZ failed to notify the concerned doctor about the issue at that time and therefore, it was too late for the physician to consult with an ophthalmologist and provide appropriate medical attention. Subsequently, the doctor was held liable for erroneously diagnosing the patient and providing him with a medication that caused the unfortunate turn of events. James had suffered from an anterior ischemic stroke of the optic nerves, due to blood loss during surgery, anemia and low blood pressure. Subsequently, it came to light that XYZ Hospital could prevent the patient’s blindness, had he been provided with timely medical attention. Further, the hospital was held liable for the actions of the practitioner and lack of medical care that caused his visual impairment. The above example sets a clear case of medical malpractice that and the patient was compensated with US Dollars four million and four hundred thousand (USD 4,400,000) by the hospital because of their negligence in reporting about his matter to the concerned doctor on time.

Significant Changes

With its growing economy, the UAE government felt the need to introduce changes in the existing medical law regime and hence, implemented the New Law in August 2016 with the view of regulating medical practice and aligning the chapters of liability. The Old Law was a result of the constant developments in the UAE healthcare industry and the rise in the medical complaints and cases in the country. However, a series of landmark changes reflecting updates in technology were yet to be acknowledged along with the recognition of new concepts such as euthanasia (mercy killing), sex reassignment surgery procedures, cloning, abortion and so on. Hence, the New Law came into force and implemented the following changes to combat with the rising number of medical negligence cases:

Dispute Redressal Dispute Redressal – The primary change under the New Law is regarding the procedure for filing a dispute of medical malpractice. The Old Law did not mandate the aggrieved party to file a complaint with the relevant health authorities. Whereas, Article 18 of the New Law has established a Medical Liability Committee (the Committee) who would review cases relating to medical negligence. Under the New Law, parties should file medical negligence and malpractice cases with the health authority of the respective Emirate; who would, in turn, refer the cases to the Committee under Article 19. The Committee would issue its opinion on the matter within 30 days from the referral date to health authority after reviewing the facts of the case, medical records, investigation report, and other documents. The party, aggrieved by the report of the Committee, may file an objection before the relevant health authority within a period of 30 days from the date of receiving the notification of the decision. The health authority would then forward the matter to the Supreme Committee for Medical Liability (the Supreme Committee), whose decision would be held final and binding on the parties. In short, the practitioners and patients have the following options for instituting legal action against an alleged negligible medical professional or healthcare provider: - (a) file a complaint with local health care authority; (b) bring civil action case before relevant courts; (c) initiate a criminal action where there is a case of gross medical malpractice. Settlement - Article 35 of the New Law has stated that settlement between the parties may result in the forfeiture of any criminal action and suspension of the penalty, even if reconciliation happens during the execution of the sentence. However, the settlement between the parties would not hinder the patient’s right to opt for civil remedies with the view of claiming compensation. This provision has introduced a drastic change to the Old Law since the latter had not provided for any such settlement mechanism. Disclosure by Healthcare Professionals – Article 5(6) of the New Law has mandated medical professionals to disclose the information regarding the patient’s health to the relevant health authority with the view of protecting public health or prove their innocence in dispute. Hence, doctors are permitted to disclose the confidential medical information of patients to defend themselves before the authorities. Penalties - The New Law has provided a detailed list of sanctions against physicians who commit the following offences: (a) doctors who carries out sex-change procedures on patients (other than in accordance with Article 7 which states that the concept of sex correction is permitted when the person suffers from sexual intricacy between masculinity and femininity; the person’s physical features are contrary to his/her physiological, biological and genetic characteristics) will be punished with imprisonment for a minimum period of 3 years and not be exceeding ten (10) years under article 31; (b) physicians who deny to treat patients in emergency cases or interrupt their treatment will be subject to a fine of not less than AED 10,000 under Article 32. The same penalty is also applicable to doctors who conduct unnecessary medical or surgical procedures on patients without their informed consent. (c) Article 32 has provided that physicians who commit gross medical errors would face imprisonment extending up to one (1) year and (/or) a fine amounting to not more than AED 200,000. However, the doctor may face an imprisonment of not more than two years and (/or) fine amounting to not more than AED 500,000 if the gross medical error results in the death of a patient. Further, the provision also states that if the gross medical error were committed under the influence of alcohol or drugs, the practitioner would face imprisonment of not more than two (2) years and (/or) a fine amounting to not more than AED 1,000,000. Other Changes - The New Law has also recognized various other techniques which that did not exist under the Old Law like euthanasia. Article 10 has explicitly stated that the doctor is not permitted to detach the life support of a patient even if the patient and his/ her family insists on doing so. Further, the provision has stated that the doctor may withdraw the life support if the heart and the breathing capacity or the brain of the patient has ceased to function. However, the practitioner is required to obtain approval from the Minister of Health before doing so. Further, Article 16 of the New Law addresses the issue of abortion and states that a doctor may perform an abortion after considering the following points: (a) the pregnant woman’s life is in danger; (b) the pregnancy does not exceed 120 days; (c) the procedure is done with the patient’s consent; (d) the medical committee report is formed on the basis of medical tests and other scientific techniques; (e) the foetus is suffering from malformation and because may cause pain and suffering to the child and family in the future.

Conclusion

The first step in pursuing a medical malpractice case is to retain an expert lawyer. Unlike some other areas of the law, self-representation in these cases is not feasible. However, attorneys do not accept medical malpractice cases due to the need of vast resources and litigation expertise. Hence, the complainant should seek out a reputable law firm in Dubai or UAE that provides bespoke legal advice in medical malpractice.