By Dr Mahesh Baldwa
UAE has seven emirates. Law of malpractice liability in Dubai is described here in nutshell. The brief description allows better comprehensions hence though details are valuable are jettisoned or done away so that things do not appear complicated. The central aim is to broadly understand the law related to medical malpractice liability in Dubai. This medical malpractice liability does not exclude application of other usual civil, criminal laws and also specific laws, rules, regulations, guidelines, standards as amended up to date and in force. Multiple complaints for same cause of action are permissible.
UAE legal system and the constitution
The United Arab Emirates’ Constitution, which came into effect on 2 December 1971, dedicates all its fifth Section for the Union legal system. Article 94 of the Constitution stipulates that “justice is the basis of authority”. The UAE constitution states: “Islam is the official religion of the Union and Islamic Sharia is a main source of its legislation”. Quran and the Sunnah have laid down the broad principles in the light of which scholars have deduced specific answers to new situations, a decision-making process called Ijtihad. This process is supposed to be ongoing, injecting new ideas, concepts and rulings into the heritage of Islamic jurisprudence. Local law in Dubai is very conservative and police statements and legal proceeding take place entirely in Arabic. The provision for translation or interpreter is in place.
Definition of medical negligence or malpractice in Dubai
UAE Law no. 10 of 2008 defines Medical Negligence as an “error caused by the lack of knowledge of technical matters when such knowledge is presumptive to exist in all those who practice the profession and that such error is due to negligence or substandard conduct (care)”.
All practitioners are advised read UAE Law no. 10 of 2008 get deeper insight and be familiar with technical aspects of it.
Malpractice law and malpractice insurance in Dubai
The law guides health-care services to obtain malpractice insurance, outline doctor’s responsibilities and also details the process of investigation and disciplinary proceedings in cases of alleged malpractice. Under the law, patients can report any malpractice or medical negligence by service providers or pharmaceutical companies directly to the health authorities.
Three pronged complaint system in Dubai
Victims of malpractice or medical negligence can take action against their physician in three different ways
- They can file a complaint with the local health-care authority i.e. DHA and DHCR for DHCC,
- They also can bring a civil prosecution case before the usual Dubai courts,
- Thirdly, if the result of the malpractice was serious enough to pursue a criminal case against the doctor or the health-care provider it can be launched with the help of public prosecutor.
Medical liability commission
Complaints will be referred to a medical liability commission set up by the Minister of Health and Prevention or the chairman of the local health authority. The commission will decide whether there is a malpractice, how gross is it, who is accountable for the malpractice, its causes and results.
Appeal against decision of the commission
Patients, doctors and providers can appeal the decision of the commission, within 30 days, to a higher liability commission, set up by the Cabinet.
Higher liability commission
The higher commission will take a decision, which is final and binding on all parties involved.
For malpractice to be classed a criminal act, it has to be deemed ‘gross malpractice’ by the higher medical liability commission.
Arrest
“In all cases, doctors and medical technicians may not be arrested, questioned or detained unless a final decision by the higher medical liability commission is made to the effect that a gross medical malpractice has been committed,” .
Fine with jail term
- If the malpractice and resulting harm suffered are deemed serious enough to bring a criminal prosecution, the doctor may face a prison term of up to a year, or a fine of up to Dh200,000 or both.
- These fines are payable to the authorities and are in addition to any financial compensation awarded to the victim by a civil court.
- If the gross malpractice leads to death, then the penalty will be a prison term of up to two years, or a fine of up to Dh500,000 or both.
- And if the cause of the malpractice is found to be due to the physician’s misuse of alcohol or narcotics, then the fine could be increased to Dh1 million.
Medical expert in criminal cases
Cases involving gross medical negligence or malpractice are ruled upon in the criminal courts, which must refer to the final decision and expert medical evidence by the higher medical liability commission before shaping their decisions.
Custodial sentences are rare for doctors but fines ranging from Dh5,000 to Dh20,000, depending on the damage done to a patient, still weigh on medics’ minds. “While the actual incidence of imprisonment is low, the risk that a professional could have a passport confiscated for several years is a definite deterrent to attracting the best foreign practitioners.”
Amicable out-of-court settlement
Amicable out-of-court settlement is allowed.“This law, however, offers a huge relief to physicians and health-care providers, allowing amicable out-of-court settlement at any time, even after a final court ruling is issued. The settlement means that the criminal lawsuit is dismissed and the prosecutors order suspending any penalty, if the settlement is reached during its execution,”
The settlement, however, does not affect the rights of the victim to seek compensation before the civil court. And settlement ceases to be an option in the event of recurrence of the same gross malpractice or medical negligence.
Available defenses and Exemption to Doctors
- The law exempts doctors from medical liability if harm to a patient is self-inflicted, a result of rejecting taking medicines or failure to heed medical instructions.
- Doctors will not be liable for prosecution if the treatment or the method adopted is different but in keeping with recognized medical standards, according to the law.
- Doctors will also not be liable to account if standard or unexpected side effects or possible complications occur, but not resulting from medical malpractice.
- Doctors are prohibited from treating patients without their consent unless in emergency cases that require urgent intervention and if informed consent by the patient is impossible.
- Doctors are not permitted to uncover patients’ secrets unless this is done with consent of the patient, if it is for the good of the wife or husband, provided that the secret is informed to either of them in person.
- Doctors are also permitted to share secrets if it is meant to prevent a crime from taking place or reporting it or if the doctor is assigned by the judicial authority to give expert testimony.
Current scenario of malpractice in domain of DHA
So far this year the DHA has received 155 medical complaints, of which it has accepted 61. No case of malpractice has been established yet. Last year, the Dubai health body received 472 medical complaints of which the DHA accepted 199. In 23 cases, medical malpractice was proved.
In 2013 there were 579 complaints, of which 169 were admitted and in 44 cases malpractice was established. In 2012, the DHA received 315 medical complaints, of which 127 were admitted and in 37 cases medical malpractice was proved.
The rise in number of complaints to the growing population, the increasing number of medical facilities and a greater awareness in the community about the right to complain.
Since 2012 the licences of nine medical professionals have been revoked and six suspended on the grounds of medical malpractice.
Procedure and practice of Malpractice resolution done by Dubai Healthcare City Authority-Regulation for DHCC
Dubai Healthcare City Authority-Regulation (DHCR), that deals with complaints of medical malpractice within DHCC
How a patient can file a complaint at DHCR
It is important to note that each health-care facility must have its own complaint management guidelines, protocols and policies to guide the provision of the highest quality health care and improve patient safety. They should inform all their patients and families about the complaint process and their right to have their complaints addressed, reviewed and, whenever possible, resolved through mediation processes.
How to complain
A patient can file a complaint against health-care professionals or providers within the free zone through email, call centre, letter or in person to the CPU.
A patient can contact DHCR by phone 800-HEALTH (800-43258)/04-3425555 or email info@dhcr.gov.ae
Common complaints
The majority of the complaints were against individual health-care professionals while some were directed at health-care teams. Common complaints were misdiagnosis of patients; performing wrong surgery and procedure; mismanagement resulting in complications; unsatisfactory service or result; and negligence by health-care professionals.
The Customer Protection Unit (CPU)
The Customer Protection Unit (CPU) at DHCR is responsible for receiving and investigating patients’ medical complaints against health-care facilities operating within the free zone.
The investigation of complaints
The investigation of complaints at DHCR is one of our main tools to ensure that health standards are maintained in the free zone. There is a transparent and fair mechanism to encourage patients to come forward for medical-related complaints.
Customer Protection Unit (CPU) analyses the complaint to determine if it is within its scope.
If yes, a notification will be sent to the complainant requesting him/her to obtain a complaint form and complete the application with all supporting documents such as medical records.
Once the complaint form and the supporting documents are obtained by CPU, then the complaint is logged and an investigation is opened. The investigation process takes between three-six months. If the complaint is out of its scope, the case is referred to the authority concerned and the complainant is informed of the action.
How the system works
Once a complaint is lodged, a formal investigation is opened. The CPU sends its finding to an independent committee comprising specialists from outside the UAE to determine the validity of the complaint. (Committees are formed on a case by case basis.) Following this, the committee arrives at a decision.
“As all decisions related to the complaint are made through independent bodies outside the UAE, our complaints process is fair, transparent and impartial for both patients and health-care professionals. Having specialists from outside the UAE ensures that there is no bias — whether in favour or against the health-care providers or professionals.”
Scenario in 2015 in domain of DHCR
Only Five out of the total number of the complaints in 2015 proved to be cases of medical negligence, including medical errors such as performing wrong surgery or procedure and misdiagnosis of patients.
Actions taken against violators
The actions taken against violators in 2015 included the suspension of one clinical facility within the free zone and the physician working at the facility. There were also two cases of clinical privilege suspension along with a number of warning letters issued to different facilities.
How the DHCR acts on a complaint
Future amendments
The UAE penal code should be revised to deal with gross negligence only. At lease custodial sentences should be removed from punishments. It would be a step forward in medical malpractice cases.
