Legal position of Medical Negligence in the UAE

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A study conducted by the John Hopkins Hospital suggests that medical negligence is the third leading cause of death, right behind heart attack and cancer. Would you agree with the irony of that sentence? A patient visits a medical practitioner after placing reliance on their expertise and their professional duty to take utmost care in treating such a patient. However, the above study suggests that more often than never, the duty is breached by the medical practitioner and the patient undergoes tremendous health, financial and moral damages. The doctrine of Res ipsa loquitur means the thing speaks for itself. This concept is primarily applied in cases of negligence (including medical negligence) where there exists a duty, a violation of such duty, a subsequent casualty, and eventual damage or injury. With the surge in evolving medical conditions and superior health facilities, the legal framework surrounding the sector has also evolved over time. Legal professionals, now, have access to various reports, records, timesheets, patient files, and the like with the increase in the regulatory foothold on medical practitioners and healthcare facilities.

In 2016, the United Arab Emirates (the UAE) issued the Federal Decree-Law Number 4 of 2016 on Medical Liability (the Law) with the provisions to primarily govern the activities of doctors, established dispute resolution mechanism and different aspects of medical negligence.

 

Medical Malpractice:

The Law has listed down certain guidelines for doctors like the responsibility to adhere to rules and regulations, attentively using medical tools, recording and registering the health conditions and history of the patient, informing the patient about the different options of treatments available, and the like. These guidelines are the cornerstone for medical practitioners in the country and they are placed with an inherent responsibility to abide by these rules in line with best professional ethics and the interest of the patients. The Law also goes on to list out certain actions that are strictly prohibited under its provisions. Article 5 of the Law has clearly defined the various activities that doctors are not permitted to carry out, such as: –

• treating a patient without their consent;
• refraining to provide medical attention to a patient in emergency cases, as long as the patient has not violated the instructions provided to them;
• failure to provide immediate treatment to a patient, unless the doctor does not have the knowledge or experience to treat such illness – in which case they should administer first aid and direct the patient to another (nearest) doctor or healthcare facility;
• employing illegal methods on patients;
• prescribing treatment before proper diagnosis;
• breaching doctor-patient confidentiality (except in certain cases where disclosure is permitted);
• undertaking physical examinations on a patient of the opposite sex without a third party’s presence and patient’s consent;
• accommodating patients in unauthorized areas, other than in cases of emergency;
• undertaking sex-change procedures;
• performing procedures or unnecessary surgeries without the explicit consent of the patient.

 

A medical practitioner is said to have committed an error when they 

(i) ignore standard technical matters; 

(ii) do not abide by the rules; 

(iii) do not exercise due diligence; 

(iv) act negligently and do not exercise caution. 

The Law also talks about the various situations when a doctor may permit a natural death of a patient without performing cardiopulmonary resuscitation (CPR). However, a doctor may not abstain from providing CPR even if the patient explicitly requests the same. 

 

Dispute Resolution Mechanism:

The Law prescribes the establishment of a Medical Liability Committee (the Committee) and a Higher Committee for Medical Liability (the Higher Committee) as part of a legal framework to adjudicate medical negligence matters in the UAE. The Committee would constitute medical professionals from all specialities and shall review cases that are referred to them by the health authorities, public prosecutor’s office, or the court with competent jurisdiction. Their primary responsibility is to review these cases and analyze whether there has been negligence on part of a healthcare practitioner and if so, what is the extent and seriousness of such negligence. Therefore, all medical negligence matters in the UAE should first be reviewed by the Committee before the patients can file any suit for damages and/ or injury due to such negligence. 

Below are the stages of filing a claim of medical negligence in the UAE:

 

Particulars	Authority/ Department	Stages
A complaint should be filed at the concerned department within the health authority of that Emirate. For instance, suppose the jurisdiction of the matter lies in Dubai, then a complaint should be filed with the Dubai Health Authority (the DHA).	health authority	Stage I
The health authority would refer the matter to the Committee for their review and analysis. The Committee may also appoint experts to study the matter and issue an expert report if necessary. They shall prepare a full report with their review and opinion of the case after carefully analyzing the facts, patient file and other information available and conducting their investigation and requisite technical studies. This report would then be submitted to the health authority.	the Committee	Stage II
The parties to the case have the opportunity of challenging against the report issued by the Committee filing an appeal (grievance) to the health authority with a period of thirty (30) days from notification of the report.	health authority	Stage III (optional)
In the event such an appeal or grievance has been filed by either party, the health authority will then direct the case to the Higher Committee. The Higher Committee shall review the grievance filed against the report of the Committee and issue its report thereafter. The report of the Higher Committee is deemed final and cannot be challenged.	the Higher Committee	Stage IV (optional)
Based on a favorable report by the Committee (provided a grievance or appeal was not filed) or the report of the Higher Committee, a claimant may move the case to the court of competent jurisdiction by filing a case for compensation due to damages or injury.	court of competent jurisdiction	Stage V

The claimant may also file a case for medical negligence with the public prosecutor’s office based on the advice of their healthcare lawyers in Dubai.

Chapter 5 of the Law has listed down the various fines and penalties applicable to medical practitioners in case medical negligence has been established in the matter.

 

Case Study:

In the Cassation Case Number 598 (Penal) and Cassation Case Number 616 of 2018 (Penal), legal proceedings were initiated against two medical practitioners with requisite licenses from the Ministry of Health and Prevention (the Appellants) by the Public Prosecution in Khorfakkan. The proceedings were a result of alleged medical negligence and error on behalf of the Appellants in treating a patient. They were accused of having ignored certain technicalities that a practitioner of similar stature should be familiar with and failed to exercise necessary care as per the report of the Higher Committee. The first appellant did not take the patient’s (who was a child) lack of oxygen in the bloodstream from the time of initiating the surgery to the time of leaving the recovery room. This practitioner also insisted that the patient was not suffering from any medical issues even when his condition was not stable. He also failed to conduct a blood gas test and sent the patient to the recovery room without oxygen. Another lapse by the first accused was his failure to note the sequence of events in the operation theatre and the recovery room in the patient’s medical file. On the other hand, the second appellant did not take the results of the blood gas test that took place around mid-day and did not conduct any examination on the patient in the recovery room, which ultimately led to the death of the patient as per the reports. 

 

Accordingly, the Public Prosecution initiated the legal proceedings requesting punishments as per the provisions of Islamic Sharia, provisions 5(1), 44(2) and 47 of the Federal Law Number 3 of 1987 (as amended) and provisions 2, 3, 4(1), 4(3), 4(9), 6 and 34(2) of the Law. The Court of First Instance decided to convict the Appellants in a hearing dated 18 June 2017 and impose fines of UAE Dirhams twenty thousand (AED 20,000) per appellant along with compensation to the amount of UAE Dirham two hundred thousand (AED 200,000) and court fees. The court also accepted the case for the civil liability of the Appellants and directed the case to the civil court with competent jurisdiction. Subsequently, the aggrieved Appellants filed appeal case number 260/ 2017 and appeal case number 675/ 2017. The Court of Appeal accepted the appeal cases (in form); however, rejected the appeal cases and upheld the judgment by the Court of First Instance. The Appellants were also mandated to pay the court fees. Thereafter, the Appellants filed the appeal at the Court of Cassation against the judgment of the Court of Appeal under case number 586/ 2017 and case number 593/ 2017. The Court of Cassation studied the case, decided to reverse the earlier judgment, and redirect the case to a different panel in the lower court. 

 

The court decided on the merits of the ruling by the Court of Cassation; however, rejected the case and upheld the earlier judgment. The Appellants, aggrieved by this judgment, filed an appeal at the Court of Cassation (Cassation Case Number 598 (Penal) and Cassation Case Number 616 of 2018 (Penal)) and the Public Prosecution submitted their contentions through a memorandum requesting the court to dismiss the appeal filed at the Court of Cassation. The Court of Cassation, in Cassation Case Number 598 (Penal), noted that the appellant objected to the judgment contending that the court misjudged the application of law and violated the right of the appellant for defence. The Court of Cassation, in Cassation Case Number 598 (Penal), noted that the appellant objected to the judgment contending that the court misjudged the application of law and violated the right of the appellant for defence. The appellant also stated that the court did not verify the cause of death of the patient (which remained unknown) in the earlier conviction against him. The report of the Higher Committee was only their personal opinion which was in contradiction with the facts of the matter that were substantiated with documentary evidence. The appellant was an anesthesiologist and his obligation had concluded at the time when the patient woke up – this means that the death due to the deficiency of oxygen in the bloodstream and respiratory circulation could not be attributed to the appellant. He also contended that the court had earlier ignored his request to direct the matter to another medical committee or hand over the case back to the committee that issued the report to state his objections. However, the Court of Cassation, after having reviewed the case, rejected the objections since the obligation of medical practitioners in general and he shall be held liable if the judge can attribute an error to him. The court also observed that a physician could be held criminally liable when he does not follow or adhere to the underlying rules and principles. Further, the medical practitioner has the responsibility to undertake his work with care and caution as per medical principles. Although he does not have the liability to guarantee success, the number and extent of errors committed substantiated a relationship between the tort and the damage irrespective of whether the error was direct and/ or the extent of the error.

 

In the Cassation Case Number 616 of 2018 (Penal), the appellant objected to the earlier judgment mentioning that the same was in breach of the laws since he was convicted even when he contended to nullify the report of the Higher Committee due to the failure to meet the quorum of the Higher Committee as per article 19 of Federal Law Number 10 of 2008 on Medical Liability. The quorum required is two-thirds of its ten members; however, the present quorum was only six (6) members and did not meet the prescribed quorum. The appellant also raised his contention that the trial courts had ignored his request to appoint a committee from the Ministry of Health and Prevention to review all the reports and files in the current case. The Court of Cassation rejected the objection that the Higher Committee did not meet the requisite quorum due to a lack of legal grounds by reasoning article 42 of the Law. The court also ruled that the remaining objections were not admissible since the trial court has the authority to examine the merits and facts of the case through the evidence in the matter. The trial court is not placed with any liability or responsibility to be bound to follow all the objections raised by the appellant as long as it is convinced of the truth of the matter substantiated by evidence. Accordingly, the Court of Cassation also observed that the trial court did not have any obligation to answer all the requests of the appellant including the request to assign a committee from the Ministry of Health and Prevention, in the present circumstance when the facts of the matter are clear. The documents of the case stipulated that the appellant’s failure to conduct examinations on the patient in the recovery room after the call from the other accused person along with his miscalculation of the patient’s medical condition and neglection of the patient’s blood gas test (which was written by him), along with other aspects of the facts constitute medical error due to negligence as per article 6 of the Law. The court studied that the report of the Higher Committee suggests that the death of the patient occurred due to medical errors in the proportion in the ratio of 30:70 (30% by the first appellant and 70% by the second appellant). The court also considered the object of the second appellant regarding the report of the Higher Committee as a substantive objection to the evidence collected and their opinion which should not be contended at the Court of Cassation. Accordingly, the Court of Cassation dismissed the case and upheld the earlier judgment.