About Galadari About
March 18,2013

Introduction

     1. According to recently published statistics, the UAE’s medical tourism market was worth $1.58 billion  in 2012 and this is expected to grow a further 6.5 per cent  to $1.69 billion in 2013. The UAE- with its predominately expatriate population of around 8 million- and the Kingdom of Saudi Arabia are- it seems- the two jurisdictions in the GCC where the demand for medical services- and the appetite to cater to this demand- is booming. The two "senior" Emirates in the seven member federation- Dubai and Abu Dhabi- have broadly similar demographics,  hospital beds and medical practitioners although in Dubai the private sector is substantially larger than the public sector whilst the reverse is the case in Abu Dhabi.     

 2. It should be no surprise that the number of complaints registered with industry regulators, medical professionals prosecuted in the criminal courts and cases filed in the civil courts alleging medical malpractice have also seen commensurate increases. According to figures released by the Dubai Health Authority ("DHA")- the body that regulates (and licenses) the private and public sectors of the medical services industry in the Emirate of Dubai- complaints are increasing, significantly, year on year and some 320 complaints were registered in 2012. Just under half of that number related to the private sector and claims have more than doubled since 2010. Statistics for neighboring Abu Dhabi are not generally unavailable. The equivalent of the DHA - the Health Authority of Abu Dhabi ("HAAD") are not quite as forthcoming as its Dubai counterpart- but it is not unreasonable to suppose that they would reflect the general statistical trend reported in Dubai given that that Emirate has a broadly similar regulatory regime and is subject to the same federal criminal and civil laws.

 3. The levels of compensation awarded by UAE courts in medical malpractice cases are simply in a different ball-park to that of UK/US- although a number of recent First Instance Court decisions suggest that UAE judges are becoming more comfortable awarding substantially higher levels of compensation.  In late September last year the Abu Dhabi Civil Court of First Instance, reportedly, awarded record damages of AED 7 million (USD 1.9 million) to a 12 year-old boy given a potentially lethal level of anesthetic which led to extensive brain damage. The anesthetist was also convicted and received a 12 month jail term.

 Reportable Events- Sentinel Events and Near Misses

 4. In each of the seven Emirates the, function of regulator devolves from the federal Ministry of Health and several Emirates have their own municipal authority e.g. the DHA  and HAAD - each with its own policies, regulations and complaints procedures in place. An important role of the recently formed Emirates Health Authority is to co-ordinate medical policy throughout the federation although this has yet to impact on how medical malpractice cases are dealt with.

5. In keeping with the global trend of national health authorities looking towards regulation and compliance to minimize instances of avoidable medical professional errors  HAAD introduced far-reaching regulations[1]in 2011 for all healthcare providers to, inter alia, devise, file and execute policies and procedures not only to document, report and act upon sentinel/adverse events but also "near misses" where the sentinel/adverse event didn't "reach the patient". The definition of "adverse event" is given as "an event that causes harm, or has the potential to cause harm". The regulation had a six month "roll-in" period and clearly healthcare providers are required to devote not insubstantial resources to ensure compliance. This mandatory duty to report such adverse events applies to not only the licensed corporate facility but to individual professionals also on pain of disciplinary action including restriction/revocation and suspension of licenses to having a facility shut down for several months. Surprisingly, the regulations appear to be silent on how "whistle-blowers" should be dealt with and it remains to be seen how local labour law would react to a possible situation where a whistle-blower faces dismissal or other disciplinary action from his/her employer for making a report without his/her employer's consent.

6. The DHA in 2012 implemented similar regulations[2]but had a narrower - and infinitely less problematic- definition of a reportable/sentinel event "an unanticipated occurrence involving death or major permanent loss of function unrelated to the nature (sic) course of the patient illness or underlying condition". Significantly, the DHA regulations fell short of imposing obligations to report "near misses" and on individual professionals to report- the obligation remains firmly with the institution. However, the regulations did provide for the establishment of the office of "Medical Director" with the specific brief and responsibility to file reports as part of a wider risk management/policy implementation role.

7. Both sets of regulations' objectives are to improve patient safety and raise professional medical standards. Moreover, the regulations are keen to ensure that all patients are treated with dignity, consideration and respect with certain rights and responsibilities. Although each of the regulations give entitlements to access to and copies of medical records they fall short of imposing a "duty of candor" on the part of a medical service provider to a patient. The reporting of adverse events is only to the respective regulator and not to the patient or the patient's family or next of kin. This "duty of candor" which is viewed by some as an integral part of respectful treatment has had limited traction in the UK/US (although it is a mandatory obligation in some jurisdictions) and for a number of reasons it is unlikely to be introduced in the UAE for the forseeable future.

8. It is also notable that both sets of regulations have not sought to make reporting anonymous – where the names of the patient and medical professionals involved are removed- and there are concerns that this may add to chronic “under-reporting” by medical practitioners who feel that they are exposing themselves to possible criminal action notwithstanding any sanctions which may apply for non-reporting.

 

 

Patients Complaints

9. Notwithstanding the above a patient may also make a complaint of malpractice to the relevant regulator. The DHA has an on-line complaint registration system. These claims are investigated by the regulator and if substantiated can result in the imposition of sanctions including restrictions/suspensions on licenses, fines imposed on establishments and even temporary closure of licensed facilities. The DHA has an appeal process in place but the complaint handling and appeal process lacks clarity, consistency and transparency- according to sector insiders.  It is very often the case that a Plaintiff relies upon the regulator's findings as evidence of negligence when filing a civil case.  

Criminal Cases

10. The UAE has also seen a marked rise in criminal cases brought by the prosecutorial authorities. The UAE Penal Code[3]provides for offence of criminal professional negligence leading to permanent disability[4]or death[5]. Those convicted of causing death face prison terms of at least one year and/or fines. If there are aggravating circumstances (such as the involvement of alcohol or narcotics) the maximum available prison term increases to five years. Convictions involving minor personal injury short of death, in the absence of aggravating circumstances, attract prison terms of not more than one year and a fine not exceeding AED 10,000 (USD, 2,750) which increase to two years and/or a fine if the injury results in permanent disability. On occasion, doctors face murder and/or manslaughter charges which carry commensurately stiffer penalties.

11. Article 53 of the Penal Code provides  "There is no crime if the act is committed with good intention in the user of a legal right and within the scope of such right. Shall be considered as user of right ......2. medical surgery and medical treatment performed in accordance with the scientific principles generally accepted and applied in licenced medical practice, whenever they are performed with ...consent....or ....in emergency cases." In other words medical practitioners have a complete defence where such acts or omissions were not negligent.

12.  The Medical Liability Law[6]introduced several new criminal offences taking into account new/emerging technologies as well as formalising into statute the requirement of compulsory medical malpractice insurance. Its main substantive contribution, however, was to create a Higher  (now called Supreme) Committee for Medical Liability- a permanent standing committee at the Ministry of Health in Abu Dhabi- to investigate and give expert opinions on matters referred to it although references are not mandatory. The members of the Supreme Committee are appointees of the Minister of Health. Some commentators take the view that that the Supreme Committee has not yet delivered on its potential although this may be due, in part, to its remit being subject to recent revisions. It is, however, an important statutory body with a wide-ranging remit to engage in civil and criminal cases.

 Civil Wrongs

13. Most medical malpractice Plaintiffs or rather their local advocates- almost without exception -choose to frame their cause of action in tort[7]rather than as a breach of contract claim despite clear and considerable judicial and academic guidance to the contrary although there is little practical impact of the distinction.

14. The Medical Liability Law assists with codifying some well -established and authoritative decisions of the Cassation Courts as to the standard of care required from practitioners and what constitutes a breach as well as providing access to the Supreme Committee if the Court so orders an Expert determination.  Dubai Courts still tend to direct that Experts are to be appointed from nominees put forward by the DHA as reference(s) to the Supreme Committee is not mandatory.  As in most civil law jurisdictions the Court relies heavily on Experts and Expert Committees to review technical and evidential matters and perhaps never more so in medical malpractice claims.

15. Most Court-appointed Expert Committees comprising of relevant specialists, typically, take about six months to investigate and prepare/file its report (although the Supreme Committee is required to report within thirty days in the absence of an extension) and the litigants have the opportunity to comment and/or object to the report before the Court decides to accept or reject the conclusions of the report. In the vast majority of cases the Court accepts such reports’ conclusions but it is not obliged to do so although if it does not accept an Expert report it is required under the Civil Evidence Law[8]to give reasons.

16. The majority of cases take, typically, between six to twelve months to reach a decision of the Court of First Instance and an appeal to the Court of Appeal is of right if the claim amount involved exceeds  AED 20,000. An objection to the Courts of Cassation and/or the Supreme Court is of right if the claim amount exceeds AED 200,000. In the absence of service issues etc one can see a medical malpractice civil claim going through primary and (two) appeal stages,  typically, in between two and two and a half years.

17. There is no general duty of disclosure or any pre-action protocols in place for medical malpractice cases (and indeed any other types of cases) as there is in other jurisdictions. This is typical of civil law jurisdictions where the courts have more of an inquisitorial role. On a slightly different tack, there is a significant school of thought (supported by some compelling research) that full and timely disclosure to a patient or next of kin of the reasons for any harm suffered by a patient as a result of medical malpractice can actually serve  to reduce rather than increase claims. As discussed above, this duty of candor may be a bridge too far for the UAE at this point in time and given the civil law tradition the introduction of any pre-action protocols seem unlikely also.

 

Concluding Comments

18. The UAE medical services sector has recently seen a dynamic shift towards an emphasis on regulation and compliance with the regulators having authority to impose stiff sanctions- albeit that they cannot award compensation to patients- and this has the potential to be a real driving force in improving professional medical standards. However, there is, perhaps, an unrealistic reliance on medical practitioners reporting adverse events- especially where there is a potential exposure to criminal charges as there, clearly, is in the UAE. The experience of other jurisdictions where there are mandatory reporting regimes suggest that there is chronic under-reporting even where there are minimal risks to criminal charges. Making such mandatory reporting anonymous and introducing provisions to encourage “whistle-blowers” would do much to assist with the efficacy of the reporting regime.

19. Many jurisdictions (such as the UK) have also introduced “Apology Laws” in an effort to diffuse situations where the patient and/or next of kin simply want to have formal recognition that something has gone wrong and that their feelings, pain and suffering are acknowledged and respected- and that there is some remorse on the part of the practitioners involved. The main feature of these laws is that apologies may not be used as evidence of admission of liability in court proceedings and according to some research and- notwithstanding the worst fears of insurers and defence lawyers- have actually helped to reduce the number of medical malpractice claims. It remains to be seen if the legislator will introduce such legislation but it is unlikely in the near future.

20. Notwithstanding the above, the UAE courts will still play a significant role in obtaining compensation and justice for patients and by reminding medical professional that the potential for personal criminal liability underscores the life or death power that physicians hold over patients and the responsibility that this power bestows.



[1] HAAD Standard for Adverse Events Management and Reporting Ref HAAD/AEMR/SD/1.1 Effective date February 2012

[2] Health Regulation Department Hospital Regulation 2012 Ref No HRD/HRS/FRU001

[3]UAE Federal Law No (3) of 1987 the Penal Code (as amended)

[4]Ibid Article 342

[5]Ibid Article 343

[6]Federal Law No 10 of 2008 promulgating the Medical Liability Law and subsequent Cabinet Resolutions culminating in Cabinet Resolution No 6 of 2012

[7]Federal Law No (5) of 1985 Law of Civil Transaction Article 282 “Any harm done to another shall render the actor…liable to make good the harm.”

[8]Federal Law No (10) of 1992 (as amended) Law of Evidence in Civil and Commercial Transactions Article 90 (2)