Medical Negligence And It’s Liabilities Under UAE Law

Medical practitioners form one of the most important professions in the world. The significance of this profession results in a high number of responsibilities on individuals in the medical field. The UAE Government has enacted various legislations to regulate medical practice. Federal Decree Law No. 4 of 2016 on Medical Liability (“Law”) is one of the most important laws that dictate the roles and responsibilities of medical practitioners.

In the article, we will look at the various rules of conduct in the legal profession, particularly with regard to medical error or negligence by a doctor.

General Rules in Medical Practice:

Under Article 5 of Federal Decree Law No. 4 of 2016, Doctors are restricted from certain activities as mentioned below:

1. Doctors must not treat a patient without his/her consent, except if the patient suffers from a contagious illness that poses a threat to public health and safety or in cases of emergencies where the patient is unable to give consent.  In the latter case, a relative of the patient must be informed of the plan of treatment.
2. Doctors must not abstain from treating a patient in cases of emergency, or drop out of treatment in any case unless the patient has breached the instructions set by the doctor or the abstention or drop out are caused by reasons beyond the control of the doctor
3. Doctors must not abstain from treating an injured patient unless the patient’s condition is outside his competence, provided that the doctor performs first aid on the patient and leads him to a specialist doctor or nearest facility if required.
4. Doctors must not use unauthorized or illegal means in his treatment
5. Doctors must abstain from treatment without physical examination. However, medical practitioners may develop a system to provide telehealth services in accordance with the terms and conditions provided by the law.
6. Doctors must abstain from performing a physical examination on a patient of the opposite gender without the presence of a third party and without the prior consent of the patient, unless otherwise required.
7. Doctors must abstain from performing sex-change operations.
8. Doctors must abstain from accommodating patients in locations other than the places prepared for the purpose, except as required in emergency cases
9. Doctors must abstain from carrying out medical procedures or unnecessary surgeries to the patient without his informed consent

Confidentiality in the medical field.

Article 5(6) explicitly states that a doctor cannot disclose a patient’s secret that has come to his knowledge during the course of his practice, regardless of whether the patient entrusted such secret to the doctor or the latter discovered it himself. However, confidentiality will be inapplicable in the following cases:

1. If the disclosure was made on the request of the patient
2. If the disclosure is for the benefit of the husband or the wife and was personally disclosed to any of them
3. If the disclosure was made to prevent or report an offence, provided that the disclosure was made to the competent official authority only
4. If the doctor is nominated as an expert in a judicial or official investigation or summoned as a witness in an investigation or a criminal case.
5. If the doctor is assigned to conduct an examination by an insurance agent
6. If the disclosure was made to protect public health and in accordance with the prescribed law
7. If the disclosure was made to defend himself in an investigation

Law regarding Surgical operations

Article 8 of the Law states that the following conditions must be fulfilled before undertaking a surgical operation:

1. The doctor conducting the procedure must be qualified in the same, according to his scientific specialisation, work experience and the degree of accuracy and seriousness of the surgical operation
2. All necessary tests and analysis must be carried out to ensure that the operation is necessary.
3. The health condition of the patient must allow for the performance of the operation
4. A written consent must be obtained from the patient or the closest relative of the patient, if the patient does not have the legal capacity to make the decision
5. If is it impossible to obtain such consent, a report from the attending physician and another physician from the same health facility and its manager will be sufficient
6. The health facility where the procedure is to be conducted, must be well prepared and equipped.

The above conditions may be bypassed only in case of an emergency where an operation is required to be conducted to save the life of a patient or a fetus

What is medical negligence under UAE law?

Article 6 of the law defines medical error as committed by a practitioner as a result of any of the following reasons:

• Ignorance of technical matters which are supposed to be known by every practitioner with the same grade and specialization.
• Failing to abide by the recognized professional and medical rules.
• The lack of due diligence.
• Negligence and failure to follow caution.

Additionally, Article 5 of Cabinet Decision No. 40/2019 on the Implementing Regulation of Federal Decree-Law No. 4/2016 on medical liability provides further context to medical error. It states that the error will be considered serious if it was committed due to blatant ignorance, or due to unjustified deviation of medical practices and protocols and the actions leads to the death of a patient or an embryo, results in the removal of an organ by mistake, affects the function of any organ, or causes any other severe damage.

Punishments and penalties in case of medical malpractice

The law lays down extensive penalties for medical malpractice including penalties for medical error. Medical negligence by a doctor may be punished with imprisonment of up to 1 year and a fine of up to AED 200,000. However, if the error causes death, the penalty is raised to an imprisonment of up to 2 years, and fine of up to AED 500,000. Furthermore, if the medical error occurred due to the medical practitioner being under the influence of alcohol or drugs, he may be liable to be imprisoned for up to 2 years, and fined up to AED 1,000,000.

Reconciliation with the doctor

The law provides a unique form of reconciliation and a path to recovery for a doctor who may have committed a medical error. If the victim of a medical negligence, his attorney or heirs reconcile with the doctor, through the competent health authority, the criminal procedures against the doctor may be terminated. Reconciliation may take place regardless of the stage of the lawsuit, or after the judgment becomes final and the Public Prosecution will order the stay of execution of the penalty should reconciliation take place during its execution. Nevertheless, reconciliation will not stop the aggrieved party from being able to resort to civil courts to claim compensation. It is pertinent to note that reconciliation will not apply in case of repetition of the errors committed by the doctor.

Conclusion

Medical negligence may vary from misdiagnosis, human error during surgery, to inadequate aftercare. Although it is inevitable, the UAE laws ensure that medical practice does not occur due to blatant and unreasonable actions or inactions. The law protects patients from gross negligence and irresponsible conduct by medical practitioners.