Due to the increasing population and increased awareness of health matters, the number of complaints and claims against healthcare providers and physicians has resulted in an upward trend of medical malpractice litigation.
The Law of Practising Healthcare Professionals issued on 6 December 2005 sets the standards to be observed by any person licensed to practice within the healthcare profession in the Kingdom of Saudi Arabia. These provisions apply not only to liability for medical errors, but also deal with licensing requirements, duties and professional responsibility. This law also makes it compulsory for all physicians and dentists of public and private health institutions to have malpractice insurance. The decision by the Saudi Commission for Health Specialities to link the licensing of physicians to obtain medical malpractice insurance has also reinforced compliance.
Medical malpractice litigation in the Kingdom of Saudi Arabia
Saudi Arabia's legal system is based on the principles of Islamic (Shariá) law that are, in general, applied in a more conservative and strict manner than other countries within the Middle East. There is no doctrine of binding precedent, nor comprehensive reporting of cases as would be the case in common law jurisdictions. Higher court decisions in Saudi Arabia and other Middle Eastern countries are persuasive, but not binding (in contrast to others such as England).
A specialist forum, the Insurance Committee, was established in 2007 for the resolution of any insurance disputes on coverage matters.
Pursuant to the Law of Practising Healthcare Professions, a specialist panel, the Sharia Medical Panel, was established to consider claims in respect of medical malpractice.
Cases in Saudi Arabia are ordinarily heard before a judge and there are no jury trials in Saudi Arabia, but the Sharia Medical Panel is made up of legal and medical experts.
Decisions from this panel may be appealed before the Board of Grievances (i.e. principal and higher administrative main Saudi Tribunal whose jurisdiction has expanded since creation to cover commercial matters) within sixty days from the date of notification thereof. An appeal can involve a total re-hearing of the matter and new evidence may be adduced.
Proceedings in respect of medical malpractice therefore usually commence before the Sharia Medical Panel with a right of appeal to the Board of Grievances. Whilst an investigation is ongoing, expat doctors who are the subject of an investigation may be banned from leaving the country.
To understand the process of litigation against healthcare professionals, it is important to understand the remit of the Sharia Medical Panel through which litigations are actually processed.
Jurisdiction of the Sharia Medical Panel
Article 34 of the Law of Practising Healthcare Professions sets out that the Sharia Medical Panel shall have the following jurisdiction:
- Consider claims of medical malpractice in cases brought before it regarding private rights ("diyah", indemnity or compensation.)
- Consider cases of medical malpractice leading to death, damage of an organ or loss of total or partial use thereof, even in the absence of a claim for a private right.
Litigation culture in the Kingdom of Saudi Arabia and the approach to damages awards
As a general proposition, Saudi Arabia is not as litigious as more developed jurisdictions, such as the UK or USA. There has, however, been a noticeable increase in the tendency to resort to litigation, and some high profile litigation has been pursued in Saudi Arabia during that time.
Unfortunately, as judgments of the courts are not always published it is difficult to gauge accurately the nature of awards and trends in this regard. However, the Saudi Arabia courts (like most courts in this region) are still far more conservative in awarding damages than may be the case in other jurisdictions.
The tendency with damages awards has been for the courts not to award significant (by western standards) awards over and above the statutory Diyah and indemnity levels. Diyah is the remedy prescribed for wrongful death; Arsh is compensation prescribed for loss of an organ or bodily injury. Diyah payment is presently set by statute and the maximum is SAR 300,000. Arsh is similarly payable based on injury to or the loss of a specific body part which depends on the seriousness of the loss/injury up to a maximum which is below the level of Diyah. The current blood money amount is SAR 300,000 (USD 80,000) for a male Muslim, though this may be doubled during the pilgrimage (hajj). The limit for female Muslims is 50% of this figure, and persons of all other religions 25%.
Unfortunately, as judgments are not published, it is difficult to accurately gauge trends in awards, however, we set out below a few examples of awards which have been made publically available:
- Two doctors were found guilty for causing death of a child and fined SAR 112,000;
- A doctor was found guilty for causing defects for 6 children during circumcision and fined SAR 100,000 in addition to 6 months in jail and cancelation of the license;
- Two doctors found guilty for death of a baby and fined SAR 330,000;
- 3 doctors were found guilty and fined SAR 150,000 for causing death of a child; and
- A doctor was found guilty for causing total disability to a child and fined SAR 1.6 million.
Although larger awards are starting to be seen (the largest award for medical liability that we are aware of is SAR 1.6 million set out above), from our experience the courts are still far more conservative in awarding damages than may be the case in more developed jurisdictions.
Principles applicable to claims for medical liability
The Law of Practicing Healthcare Professions specifically provides that healthcare professionals will be liable in the event they commit malpractice causing harm to a patient.
The definition of "malpractice" is set out in:
"Any healthcare professional who commits malpractice causing harm to a patient shall be liable for indemnification. The following shall be deemed malpractice:
- Error in treatment or inadequate follow-up;
- Lack of knowledge and skills that can be expected in others in the profession;
- Performing experimental and unprecedented surgery on a person, in violation of relevant rules;
- Conducting experiments or scientifically unestablished research on patients;
- Administering medications to patients on experimental basis;
- Using medical instruments or equipment without adequate knowledge of their use, or failing to take appropriate precautions to prevent damage arising from such use;
- Failure to provide adequate monitoring or supervision;
- Failure to consult anyone the consultation of whom is necessitated by the condition of a patient;
- Any provision limiting the liability of a healthcare professional or holding him accountable shall be deemed invalid."
Standard of care
Under the Law of Practicing Healthcare Professions, a healthcare professional is obliged to "exert due care in line with commonly established professional standards." This is therefore an objective standard.
The law also sets out the fines and punishment in respect of criminal liability. A healthcare professional can be subject to imprisonment (not exceeding six months) and/or a fine not exceeding SAR 100,000 for breaches of the law including:
- Practicing healthcare without a license;
- Providing false information or using unlawful means resulting in obtaining a license to practice healthcare; and
- Unjustifiably declining to treat a patient.
Any healthcare professional who defaults in performing any duty provided for in the Law of Practicing Healthcare Professions, violates any codes of practice or acts contrary to professional conduct or ethics, shall be subject to disciplinary actions which can include a warning, a fine (not exceeding SAR 10,000) and revocation of the license.
In general, the lack of certainty regarding damages means the litigation risk is significantly higher in Saudi Arabia compared with other jurisdictions. In comparison, however, the level of damages awards remains much lower than in those jurisdictions which means the uncertainties will affect both parties.