The introduction of compulsory health insurance schemes in a number of countries in the GCC, together with increasing focus on regulation and reforms by local health authorities such as the Dubai Health Authority (DHA) and the Health Authority - Abu Dhabi (HAAD), have highlighted the incidence of claims made against medical practitioners and by implication their professional liability insurers. Both the DHA and HAAD have introduced mechanisms for the review, and if appropriate, discipline of licensed medical practitioners' actions. The standards to be observed by medical practitioners have been further outlined by the publication of the Medical Liability Law (Federal Law 10 of 2008), issued on 16 December 2008, and its implementing regulations published pursuant to Cabinet Resolution 33 of 2009.
Whilst the local health authorities' actions do not include the power to award damages for any failure to abide by the standards expected, a disciplinary finding is usually the trigger for a negligence claim before the local courts, and a resultant claim on the practitioners' professional indemnity policy. In light of these developments and the effect this will have on the medical practitioners' professional indemnity insurance market, it is appropriate to highlight the background and influence of legislative changes to medical malpractice claims and insurance in the UAE.
Sources of law and background to Medical Liability
The UAE has a civil law system under which all laws are codified. Pursuant to the UAE constitution, all codified laws are subject to the Islamic Shariah, which the UAE constitution provides as the main source of legislation and to which the UAE courts revert to when requiring further guidance in interpreting the codified laws. In general the most important laws of application to medical liability (excluding the Medical Liability Law which we deal with separately) are the UAE’s Civil Code (Federal Law 5 of 1985) and Criminal Code (Federal Law 3 of 1978) which both contain important provisions which are of application to claims for medical malpractice.
In general, the doctor / patient relationship under UAE law is regarded as a contract whereby the doctor undertakes to treat the patient. Notwithstanding this, it is apparent from various Cassation decisions that when considering claims based on medical malpractice the UAE courts rely on the Civil Code provisions applicable to both tort/delict and contractual claims.
Although in most circumstances a claim against a medical practitioner would be based on the parties’ contractual relationship, this would not prevent a claim in tort/delict if no contractual relationship existed. In such circumstances, a claimant could rely on the general theory of tort/delict that appears in the Civil Code and which provides that a person who commits a “harm” will be responsible for any loss caused by such “harm”. The preconditions for such a claim would be fault, damage and a causal connection between the fault and the damage.
With respect to claims made based on the doctor / patient contractual relationship, the Dubai Court of Cassation has held that a doctor or surgeon is not under a duty to achieve a specific result, rather what is required of the doctor is the same level of care or skill as would ordinarily be expected of a qualified doctor in similar circumstances. Accordingly, if a patient is to claim damages successfully, he has the onus to show that the doctor failed to provide the treatment with the required standard of care.
Although the burden of proof in establishing a deviation from the required standard of care falls upon the claimant, proving such a deviation is far easier in circumstances where the relevant authorities (e.g. the DHA) have already investigated a complaint and made a finding of “negligence” as often occurs as a result of a disciplinary complaint against a medical professional.
The Medical Liability Law
The Medical Liability Law and its regulations are wide ranging as they contain provisions that apply not only to liability for medical malpractice, but also deal with doctors’ responsibilities, the termination of pregnancy, mandatory procurement of insurance, the investigation and disciplinary process in circumstances of alleged malpractice and penalties for violations of the law. With respect to medical malpractice insurance, the most important impact of the Medical Liability Law is that it sets out principles to assist in determining whether a practitioner’s conduct amounts to negligence and makes it mandatory for medical practitioners to procure malpractice insurance.
Article 3 of the Medical Liability Law sets out the basic duty of practitioners and provides, according to an unofficial English translation, that:
“any person practicing in the state shall perform his job duties as accurately and honestly as required by the profession and according to generally accepted and scientific standards to provide the necessary care for patients, without exploiting their needs for illicit benefit for himself or for others and without discrimination among persons.”
In circumstances where it is claimed that a practitioner has failed in this duty the Medical Liability Law empowers a “Supreme Committee for Medical Liability”, on request from an official body such as a court, to investigate and decide on liability. In making such a determination the starting point will be if there was a “medical error” which the Medical Liability Law defines as:
“an error traceable to ignorance of technical matters any person practicing the profession is supposed to be familiar with, or to neglect or lack of due care.”
However, specifically excluded from this definition are injuries caused by:
- The patient’s supervening conduct;
- Novel treatment methods, where such treatment is consistent with generally accepted medical practice; and
- Complications not caused by medical error.
Although not expressly stated, it is apparent from the Medical Liability Law that a finding of “medical error” is required in order to found liability and accordingly a deviation from what would generally be expected by a doctor is required to found liability.
With respect to the obtaining of medical malpractice insurance, the Medical Liability Law provides that procuring such insurance is compulsory and places the obligation to procure the insurance upon the institution that employs a practitioner. The Medical Liability Law further provides that the institution has to pay at least 80% of the annual premium for the insurance and that the institution is also liable to insure any visiting doctors that treat patients at such institution.
The effect on Medical Malpractice Insurers
For insurers the fact that it is now compulsory for UAE medical service providers to procure insurance is certainly a welcome development as it is likely to result in increased demand for medical liability insurance. The introduction of the Medical Liability Law has also created welcome clarity regarding the meaning of a “medical error” and the duties of doctors in the UAE.
However, notwithstanding this greater clarity, the manner in which medical negligence claims and liability issues are dealt with in the UAE still differs significantly to the approach followed in common law jurisdictions. These differences have a significant effect on the manner in which claims are settled and defended in the UAE and also impacts on international policy wordings, which often need to be reviewed to address UAE law issues. Other local law issues including, for example employment laws that require medical practitioners all to be formally employed and sponsored by the medical institution itself as opposed to operating on a consultancy basis, will also affect the practical manner in which professional indemnity insurance is structured. Insurers will also need to be aware of the fact that it is entirely possible that they can be joined to proceedings brought by a claimant before the local courts, and will be seen as providing a "deep pocket" for compensation.
Although the GCC has historically not had a litigious culture, in light of the recent legislation and regulatory developments, there is evidence of a more litigious approach developing in the area of medical malpractice. Damages awards have historically been low, but upward trends are also predicted. The effect of these developments on what has been until now a fledging professional indemnity insurance market are likely to be significant.
In the circumstances re/insurers accustomed to common law jurisdictions should continue to carefully consider the impact of the local liability and insurance regimes on medical malpractice claims and in particular how the liability regime applies to policy wordings that have no specifically been reviewed to address UAE issues.