"Long and healthy lives" - This is the United Arab Emirates ('UAE') Government's strategy set up by the Ministry of Health and Prevention (the 'MoHAP') to reinforce the country's health system and the efficiency of medical services. The Government intends, through its UAE Vision 2021, to provide equitable access to world-class medical care whilst actively protecting against health hazards through awareness and prevention.
The federal Decree-Law No. 4/2016 (the ‘Law’) is the cornerstone for claims on medical liability and the Cabinet decision No. 40/2019 (the ‘Executive Decision’) provides its application, following health strategies set up by the various emirates in the UAE. The main motive of these newly introduced provisions is to define the liability of medical professionals in greater detail, alongside the development of the process for claims for medical malpractice. However, it is not possible to foresee if this recent regulation will have any effect on the sums awarded through these claims for medical malpractice.
1.The Clarified Medical Malpractice
a.A delimited scope of medical liability
Concerning the importance and the amplitude of medical liability, it is important to secure and safeguard the possible risks that can potentially occur. That is why the compulsory nature of such medical insurance, which has been provided under Article 25 of the Law, is reaffirmed and stressed in Article 17 of the Executive Decision. It emphasizes that insurance is vital before any start of the medical profession.
Furthermore, with the same concept to delimit medical liability, good behaviour of practitioners (Article 4 of the Law) and prohibitions (Article 5 of the Law) are highlighted in Article 2 of the Executive Decision. Therefore, different general obligations and principles have been put in light, such as due-diligence, non-discrimination and the compliance of the Code of Practice of the profession or patient's information. These modifications are beneficial to the handling of complaints concerning such matters.
Alongside this, compulsory insurance allows professionals to practice their occupation under the best possible conditions. One of the other main contributions of the Executive Decision is the definition of the gross medical error, which adds an additional boundary to medical liability.
b.A re-definition of the medical error
A definition of medical error has been previously given by Article 6 of the Law. However, this Article lacks clarity concerning the subject of the matter. Besides, a professional who has committed a gross medical error faces a prison sentence and financial penalty, but the law provides that this type of serious error shall be defined by the executing regulation.
Thus, under Article 5 of the Executive Decision, there are defined situations that lead to a ‘gross medical error’: the death of a patient, removal of an organ or alteration of its function, and more generally where the error has caused severe damage. For the remainder, there are standards concerning ‘simple medical error’ which can be considered a serious error dependent on the severity of the act. This includes severe negligence or blatant ignorance of medical principles and so on.
The clarity of the definition of medical errors and the preciseness of medical liability enables the retainment of responsibility of the practitioner, facilitating a sense of security. Insurers are made aware of the exact situations in which they would have to compensate, and professionals are working, fully aware of the risks that their acts may cause. However, the Executive Decision went further by way of inserting provisions concerning the procedure of medical malpractice complaints.
2.A framed procedure to claim for medical malpractice
a.A simplified access
The channels in which patients may file medical malpractice are provided under Article 18 of the Law and have not changed within the Executive Decision. A complaint can be made to the health authority, the local courts or the public prosecution for criminal complaints. Concerning the claim to the health authority, it is possible to make an online complaint directly on the website . Health plans set by the different emirates in line with the UAE Vision, aim to encourage access to health supplies. This involves assisted access, but also the option to complain through an easy procedure to help resolve any malfunctions. Besides, under Article 298 of the Federal Law No. (5) of 1985 (the ‘UAE Civil Code’), claimants still have three years to file their complaint through one of the three channels mentioned above.
Moreover, in the perspective of health strategies, the Executive Decision has established a Telehealth system with remote health services, under Article 7. This is a great development but requires specific monitoring and it seems at first glance, that provisions will not be enough to frame the novelties. Indeed, it is currently only suitable for direct and human professional-patient relationships. However, another main contribution of this Executive Decision refers to the definitions for the medical malpractice claim procedure, specifically regarding the required intervention of the Medical Liability Committee ('MLC').
b.The Mandatory Intervention of an MLC
The use of an MLC as part of a medical practice procedure is not new. The Law has already provided such mandatory intervention under Article 18. Hence, every time there is a claim concerning medical malpractice made through one of the three channels, the MLC is the exclusive entity that shall analyze the complaint. Provided by the Executive Decision, Article 9 states that an MLC shall be formed in each health entity. This regulation provides all details concerning the internal organization and the member's capabilities. Moreover, Article 5 of the Executive Decision gives further detail on their role.
For the process, there is no new provision under the Executive Decision, and it continues to be governed under Article 18 of the Law. The MLC, which is composed of medical specialists, shall issue a reasoned opinion report to the healthy body, within thirty days from the date of referral. This report can be challenged by the parties and the permanent Medical Liability Supreme Committee (‘MLSC’) will reexamine the case to issue a final report within the thirty days.
Currently, the delay of thirty days to issue a record provided by the Law is far from being followed. Due to the number of claims and the fact that under the Law there is only one committee for all the UAE the process is slow. Therefore, it is expected that with these new provisions, alongside the establishment of an MLC in each entity, it will aim to reduce the delays of medical malpractice claims and set up a more detailed procedure to prevent medical errors at best. However, even if the process to complain is accelerated, it does not necessarily mean it will lead to a rise in the number of complaints made and there still is no method of calculating damages.
3.The uncertain amount of awarded damages
There are three requirements that must be shown to prove medical liability. Firstly, a medical error should have occurred, which must be proven through the MLC. Secondly, the damages should have been sustained as a result of this medical error. Lastly, the extent of the damages that have been suffered must be demonstrated.
There is currently no formula to calculate the number of allowed damages. As well as this, there are no levels to indicate the appropriate amount required for the medical error and the damages that have occurred. At present, only a global criterion exists, which includes a criterion of age, profession, the seriousness of the error, the medical expenses and so forth. The Court holds absolute discretion on the damage allowance; therefore, it is not bound by the MLC's report or by precedents. On the other hand, other expert's reports which are requested by the parties can be taken into consideration. Furthermore, judges do not have to outline every amount allowed for any type of damage in their decisions. It can be a global awarded amount that takes into consideration the different types of damages, such as economic or moral damages.
As four months have passed since the Executive Decision was issued, it is too early to expect any significant impact on the awarding of damages. Decisions that will arise over the up and coming years will demonstrate whether the Executive Decision has made any influence on the content or quantity of the cases being raised. Additionally, it will be interesting to note if the criterion of medical malpractice is easier under the Executive Decision or not. Lastly, it will be seen whether this may lead to a formation of a procedure to calculate the awarded damages and whether cases will experience an increase in the sums awarded or potentially a disparity in awards across the Emirates.
Article authored by Barry Greenberg
, Senior Associate and Emy Eckly.