The much anticipated new regulations setting out how medical liability claims will be assessed in the UAE have now been issued. In this article, we outline some of the key provisions of the new regulations, which are expected to have a significant impact on the way that medical malpractice claims are considered and dealt with in the UAE going forward.
Cabinet Resolution no 40 of 2019 (the "Executive Regulations") expands on and clarifies certain aspects of the UAE Federal Medical Liability Law 2016 (the "2016 Medical Liability Law"). The Executive Regulations have been published on 15 July 2019 in the Official Gazette and are now effective*.
Key provisions of the Executive Regulations
The Executive Regulations emphasise the expected behaviour of medical professionals in the course of their work; including
- not exploiting patients in order to achieve an illegal benefit for themselves (that would include overprescribing or carrying out unnecessary treatment to benefit from revenue);
- due diligence which includes reviewing the patient's medical history unless there are circumstances in which this cannot be done;
- maintaining a full record of action taken in the patients' medical notes;
- making patients aware of all complications that may result from a diagnosis or treatment in a clear and simplified manner; and
- specific provisions about the necessary processes and steps to be taken when surgery is to be conducted, as well as treatment of a special nature, such as chemotherapy and radiotherapy.
Gross Medical Error
Article 5 of the Executive Regulations now defines 'gross medical error'. This is a much awaited definition since Article 34 of the 2016 Medical Liability Law provides that it is only where "gross medical error" has been committed that the punishment of imprisonment or fines could in theory be granted, although the term itself was not defined.
Article 5 of the Executive Regulations now defines a gross medical error, to include:
- an error that causes the death of the patient or foetus,
- the eradication of an organ by mistake;
- the loss of an organ function;
- the doctor being under the influence of alcohol or drugs; and
- severe carelessness, such as giving an overdose or leaving medical equipment in the patient's body.
Medical Liability Committees
The Executive Regulations were eagerly awaited in order to get clarity on the establishment and processes of a Medical Liability Committee (MLC), which is the committee that will be responsible for assessing and adjudicating on medical liability claims.
To recap, the 2016 Medical Liability Law had previously confirmed that a MLC would be set up and exclusively in charge of settling complaints referred to it by the relevant health authorities, the public prosecution (for criminal matters) or by the Court. This would streamline the process of multiple committees that existed beforehand.. However, it also meant that the MLC process would allow minimal opportunities for parties to challenge the MLC's findings with only one appeal after 30 days to a Supreme Committee of Medical Liability.
The 2016 Medical Liability Law also provided that compensation claims would not be accepted until the case had been referred to a MLC and gone through that process.
Article 9 of the Executive Regulations now confirms that a MLC will be set up by each health authority and that a MLC committee will be set up, once resolutions have been passed by each health authority, determining who the committee in each authority shall consist of. The Executive Regulations make it clear however that membership of the committee shall include physicians specialising in various disciplines.
When determining whether medical error has occurred, a MLC committee may seek the opinion of relevant physicians. The voting process of the MLC committee is set out in the Executive Regulations. A more stringent voting process is provided for matters relating to gross medical errors.
A copy of the MLC Committee's report is required to be provided by the health authority to the complainant and defendant. Appeals are to be made to the relevant health authority within 30 days of being notified of the MLC Committee report. A Supreme Committee of Medical Liability is to be formed to deal exclusively with appeals to decisions of the MLC Committee.
The Executive Regulations confirm that it is the healthcare institution that is required to provide insurance to its practitioners; so that the current system of a hospital taking out "umbrella" insurance cover for the entity's medical malpractice which also covers its staff continues to exist.
This is in contrast to other jurisdictions, such as the Kingdom of Saudi Arabia and the United Kingdom where medical professionals take out their own individual medical liability insurance cover (often linked to their license). It is understood that the UAE health and insurance authorities are considering whether the current system should be revised so that a system of individual medical professionals' insurance cover is introduced.
Article 25 of the 2016 Medical Liability Law has already confirmed that the institution receiving a visiting doctor shall be responsible for compensation relating to that visiting doctor's medical errors. The Executive Regulations do not expand further on that.
As a demonstration of the UAE's commitment to the use of technology in delivering healthcare services and being at the cutting edge of both technology and healthcare, the Executive Regulations allow healthcare institutions to set up telehealth services and attach as an addendum regulations for providing such services.
The Executive Regulations provide welcome clarity on certain important aspects of the 2016 Medical Liability Law.
The fact that the Executive Regulations deal specifically with issues of patient consent, conflicts of interest when prescribing a treatment and errors, such as leaving equipment in patients' bodies is also welcomed as these are some of the specific criticisms and types of cases that we see when dealing with medical liability claims.
The need for medical professionals to clearly document the action taken within patients' medical files is also clearly expressed. When defending medical professionals, this is a critical area for evidence and can "make or break" a case.
However, there still a number of important open areas in the Executive Regulations:
- It is not clear whether legal representation will be allowed to parties during the MLC process. This is particularly important as the Supreme Committee of Medical Liability's decision will be considered final and so the MLC and the appeal process heard by the Supreme Committee of Medical Liability are extremely important for parties if those decisions will then be binding on the criminal and civil courts. In our view, it is important for healthcare providers and their medical professionals (as well as the insurance market sitting behind these risks) to ensure there is early and timely support to doctors, clinics and hospitals who may be going through this new process. It would appear that waiting until a court process starts may be too late, in light of this new process.
- There is no clarity on how any apportionment in liability, or overlap in insurance cover between the doctors and healthcare providers involved will be dealt with.For example, where a visiting doctor is entitled to be indemnified by a "receiving" institution but where that visiting doctor may have separate insurance cover either individually or through a separate employing institution, the Executive Regulations do not provide any guidance as to how liability is to be apportioned between each entity, or how the various insurance covers will contribute to any loss.
- Over the last few years, claims were gradually moving away from the criminal courts to the civil courts. The fact that a doctor could be criminally prosecuted was considered by many healthcare institutions to be a barrier to attracting international talent as criminal prosecutions are very rare in other jurisdictions and was a cause of concern for doctors looking to be employed in this region. There is scope for criminal prosecution under the 2016 Medical Liability Law for gross medical errors, which are defined widely under the Executive Regulations. It will be necessary to see how the MLC and Supreme Committee deal with complaints of gross medical error in practice, and the extent to which these result in criminal proceedings.
- Finally, it appears that the new MLC processes are being applied retrospectively to existing cases, and it will be necessary to review how these processes are being applied.
Should you have any queries on how the new Executive Regulations may affect your business, please do not hesitate to contact Shabnam Karim (Legal Director) or Wayne Jones (Partner) at Clyde & Co LLP or any member of Clyde & Co's Healthcare team in Dubai.
*The Cabinet Resolution No. 40 of 2019 has been published in the UAE Federal Gazette No. 658 on 15 July, 2019. The resolution is specified to be valid as of the day following the date of its publication.