This article was first published in the January 2017 edition of the Middle East Insurance Review

A series of landmark changes reflecting updates in technology, technique and the changing times have been introduced into UAE law concerning medical liability. The more streamlined process ought to see a decrease in unrealistic and exaggerated claims for compensation through the courts, says Ms Shabnam Karim of Clyde & Co.

Federal Law No. 4 of 2016 concerning Medical Liability came into effect on 15 August 2016. While the Executive Regulations are being awaited (they are expected to be published within six months of 15 August 2016), the new law brings substantial yet welcomed changes.

Key highlights are that medical practitioners now have much more freedom to intervene and provide necessary care in life saving situations. Natural death with no obligation upon practitioners to intervene is now allowed in certain circumstances which is a landmark change. We are aware of an incident that occurred previously following the birth of a very sick and dying baby. By law, the baby was required to be kept alive on life support for years following birth. The cost of this required care could not be met by the baby’s parents.

A new and more streamlined process for investigating complaints made either to the Public Prosecution or the relevant regulator has also been introduced. It is illegal for any institution to incentivise staff members to encourage a patient to proceed with a procedure that is not necessarily required.

Analysis

Financial incentives

The new law sets out that a practitioner must not exploit a patient’s needs to achieve an illegal interest whether for himself or any other party. This now means that it is illegal for any institution to incentivise staff members financially, or by other means, to encourage a patient to proceed with a procedure that is not necessarily required.

This is releva nt because some healthcare institutions incentivise doctors, by way of contract for the procedures or medication that they prescribe. Those institutions will need to carefully consider the impact of this new law and ensure that the patient’s interests remain the utmost priority.

Expanded basis of liability

The definition of medical error has been broadened from the previous law to include the following:

  • Ignorance of technical issues that every practitioner of the same profession of the same degree and specialisation should be familiar with;
  • Failure to follow the recognised professional and medical standards;
  • Failure to act with necessary due diligence; and
  • Negligence and failure to act carefully and with precaution.

It is unclear whether the Executive Regulations will set the limits for these widened terms as well as detailing what recognised professional and medical standards should apply when determining whether a medical error has been committed.

Sex reassignment surgery

The new law now allows for sex reassignment surgery for individuals whose sexual orientation is ambiguous and sexual aspects are different from their physiological, biological and genetic characteristics.

In advance of any sex reassignment surgery taking place, reports as well as the approval of a specialised medical committee shall be required. Such committee must also refer the patient to a psychologist for psychological consultation.

Do not resuscitate

Natural death of a dying patient by not providing cardiopulmonary resuscitation is now allowed under the new law provided that certain criteria are met.

Resuscitation can now be stopped where heart and respiration and/ or all cerebral functions have completely stopped according to medical standards which are to be set by Ministerial Resolution and in the event that physicians decide that such stoppage is final.

Institution policy requirements

With the introduction of sex assignment surgery as well as the widened scope physicians now have to intervene and allow for the natural death of a patient where relevant, institutions will be required to draft and implement new policies and procedures to ensure compliance following these new developments.

Review of complaints or allegations of medical error

Previously the investigation process following complaints made directly to the various regulators were not consistent across the Emirates and for some it was even unclear what the appeal process was.

Now, any complaints of medical error filed either with the health authority, Public Prosecution or any dispute alleging medical error filed with the court shall be investigated by the newly formed Medical Liability Committee.

The Medical Liability Committee shall consider whether a medical error occurred together with the seriousness of such error. It shall decide the damage caused, the reasons for the damage caused and establish a causal link, if any, as well as the percentage of disability an affected person has sustained.

In instances where the damage was caused by more than one person, it shall establish the percentage of damage caused by each person who contributed to the damage.

While investigations are ongoing, practitioners can no longer be arrested or imprisoned on a temporary basis until a finding of gross negligence has been made (the definition of gross negligence will be set out in the awaited Executive Regulations to the new law).

Amendments have been made to the punishments and penalties for violation of the law including those for committing a gross medical error.

It is important to note that all claims for compensation shall not be accepted unless the matter has been considered by the Medical Liability Committee.

Mandatory insurance

In line with the previous law, medical liability insurance is still mandatory for all practitioners.

Institutions are also required to provide insurance for civil liability for any visiting doctors as well as insuring them against the risks resulting from the practise of the profession which could include criminal liability.

The previous law stipulated that institutions were required to bear 80% as a minimum of the insurance to cover its employed practitioners (although that was not always enforced in practice); however, the new law provides that institutions shall now be responsible for the payment of all premiums.

Complaints made directly to the regulator

Following referral by the health authority, the Medical Liability Committee will review and issue its report to the health authority within 30 days (this period may be extended upon request by the Medical Liability Committee).

Either the complainant or the practitioner may challenge the report to the competent health authority within 30 days of being legally notified of the report. The health authority will then forward the grievance (including any attachments) and all the related papers to Supreme Committee for Medical Liability for its review.

The Supreme Committee for Medical Liability will then issue its report. Any report issued by this Committee cannot be challenged before any authority.

The effect of the new law

The new law provides much needed direction to the medical market on a number of issues. Practitioners and medical centres will benefit from the improved clarity by which complaints, medical negligence claims and liability issues will now be dealt with. The provisions against physicians no longer being arrested or imprisoned on a temporary basis while nvestigations are ongoing is a particularly welcome development.

The new processes aim to ensure that initial complaints to the regulator will be properly reviewed at the outset when investigating not only whether a practitioner is fit to practice, but also to consider matters of liability. All practitioners will now also be given a fair opportunity to appeal where relevant. This streamlined process ought to see a decrease in unrealistic and exaggerated claims for compensation through the courts.

Practitioners and medical centres will also benefit from the further direction provided by the new law in dealing with caring for patients in life threatening and emergency situations.