The new medical liability law passed in the UAE in 2016 (Federal Decree Law 4 of 2016) "The 2016 Medical Malpractice Law" which came into effect on 15 August 2016 has given clarity on where liability rests, specifically where doctors work at multiple facilities. In addition to foreign doctors visiting institutions in the UAE, it is also common for doctors who are employed by one healthcare provider in the UAE to work at multiple clinics/ hospitals ("Visiting Doctors").
There is often some confusion where patients are treated by one doctor but at different facilities. In those circumstances, patients often bring claims against multiple institutions and proceedings can be multi-party and complicated. Where and how a doctor is employed can also be very important in determining which medical facility may be liable for medical malpractice.
We look in this article at the provisions set out in the 2016 Medical Malpractice law and the impact of that for the parties involved.
The provisions of the 2016 Medical Malpractice law
Article 6 of the 2016 Medical Malpractice Law defines medical error and includes within that definition, an error committed by a doctor for "failure to follow the recognised professional and medical standards" and "failure to act with necessary due diligence".
The 2016 Medical Malpractice Law stipulates circumstances in which liability will not be found, which includes (under Article 17), if "unexpected effects and complications occur in the field of medical practice and do not result from medical error".
In the event that medical error is found (which will be by determination of an expert committee appointed by the court) and the error has caused harm (so that there is a finding of liability), compensation may be awarded to the Claimant.
The position of visiting doctors
If there is a finding of liability, in addition to the actual doctor being liable, there are numerous other parties who may be liable.
Under Article 313 (1)(b) of the UAE Civil Code (Federal Law 5 of 1985 (as amended by Federal Law 1 of 1987)), an employer can be liable for the wrongful acts of an employee, if the employer has actual supervision and control over the employee and the wrongful act occurred during the course of that employment. Doctors in the UAE will all be required to be employed by a medical facility (i.e. will not be self-employed) for visa and residence purposes and it is important to determine which facility employs the doctor.
However, where a doctor is actually working at another facility, it could be argued that the employer did not have actual supervision and control over the employee and the wrongful act did not occur during the course of that employment.
The 2016 Medical Malpractice Law sheds light on where liability rests in such a situation, as well as matters of insurance cover.
Under Article 25 of the 2016 Medical Malpractice Law, it is compulsory for a medical facility to have medical malpractice insurance in place to cover all medical staff (although medical malpractice insurance has actually been compulsory since 2008). The 2016 Medical Malpractice law clarifies that the health institution receiving a visiting doctor shall indemnify the Claimant against the doctor's medical error although the receiving institution has a right to bring a separate claim against the visiting doctor to recover any sums paid.
We are aware that healthcare institutions receiving visiting doctors often take out insurance with cover extended under a "visiting doctor extension", so that their insurers respond to the claim and defence costs connected with the claim.
The 2016 Medical Malpractice Law anticipates that executive regulations will be issued, which are likely to provide further guidance on the provisions of the law relating to medical malpractice, and procedures to be followed.
The 2016 law sets out a new position for visiting doctors and provides clarity on whether liability shall rest.
Healthcare institutions that receive visiting doctors should consider carefully whether their existing insurance arrangements are sufficient and also the terms of their contractual agreements with visiting doctors and other facilities.
In the event of a claim, receiving institutions can now expect to be liable for the acts of visiting doctors in the first instance. It is likely however that multi-party litigation will continue where numerous doctors and facilities are involved in treatment.