Medical Error Criteria - The UAE Medical Liability Law

Medical Error Criteria – The UAE Medical Liability Law

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Medical Error Criteria – UAE Medical Liability Law

Determining the medical error is one of the essential issues in medical liability in particular, given the great importance it constitutes in proving the medical error, and because its assessment shows whether the medical staff’s behavior was wrong or not, so his responsibility is established and constitutes an error, or his responsibility is negated so it cannot be certain that the medical staff has committed an error, unless we rely on a fixed standard that shows the medical staff’s actions and whether or not they committed the error, and this matter is of great importance, as it is essential to determine the medical responsibility.

The decision of the Federal Supreme Court states that “the responsibility of the medical staff is to exercise the care required, by making sincere and vigilant efforts that are consistent – in non-exceptional cases – with established principles in the medical science. His responsibility is for every failure in his conduct that does not fall from a medical staff in his professional level, found in the same external conditions that surrounded the responsible medical staff.”

The care required varies according to the nature of the work provided by the medical staff. Either it is a technical work that is directly related to the medical profession, or a normal job that is not directly related to this profession. Therefore, the technical nature of the work must be taken into account when setting a criterion for measuring the behavior of the medical staff, because the criteria that estimates the error of the medical staff differs from the nature of the work whose commitment has been breached, and here the criteria can be divided into two types:

* The ordinary error criteria: the care required from the medical staff obliges to make sincere and diligent efforts that, in other than exceptional circumstances, comply with the foundations of the medical science, and otherwise be mistaken in case of negligence.

* The technical error criteria: the professional behavior of the perpetrator of the harmful act is measured by the recognized technical behavior by a competent expert of the same profession and level, and his vigilance, provided that he is in the same external circumstances that surrounded the staff, which requires providing the medical care required by customary medical procedures. In order to assess the medical error, the professional level of the responsible medical staff and the experience they have gained must be taken into consideration. For example, the behavior of a general practitioner is compared to a general practitioner like him surrounded by the same circumstances, and a specialist doctor with a specialist doctor like him in the same circumstances, and so on. The medical staff is held accountable for every negligence or failure to take precautions and caution, or for every departure from the accepted principles out of ignorance, which makes the medical staff responsible for their mistake. A wording of the Dubai Court of Cassation ruling says that “the responsibility of the doctor or surgeon – and upon what this court has decided – is not based primarily on an obligation to achieve a specific result, which is the patient’s recovery or the success of the operation he performs, but rather on his obligation to exercise sincere care for his recovery, and the doctor’s duty in taking care consists with what an attentive doctor, from among his colleagues, provides with knowledge and awareness of the circumstances surrounding him during the exercise of his work, taking into account the traditions of the profession and the established scientific principles, and regardless of the issues on which the people of this profession differ, to open the door to discretion, and if he deviates from the performance of the duty entrusted to him to the degree that is required of him, this is considered an error that entails his responsibility for the harm that befalls the patient and misses the opportunity for treatment, as long as this error has interfered with what leads to its association with the harm, linking the cause to the causer, and that when determining responsibility, one must stop at the productive and effective cause in causing the harm without the accidental cause that is not by its nature causes such harm, and if the patient denies the doctor taking appropriate care in the treatment or wrongly performing the surgery, the burden of proving this falls on the patient.”

Article (69) of the UAE Federal Law No. (1) of 1992 regarding evidence in civil and commercial transactions states that “the court may, when necessary, order the appointment of one or more experts from among the State’s employees or from among the experts registered in the experts’ list to give their opinion on issues, which is required to resolve the case, and the court estimates the retainer that must be deposited in the court treasury as the expert’s expenses and fees, and the litigant that is instructed to deposit this retainer, and the period within which the deposit must be made, and the amount that the expert may withdraw for his expenses.”

A litigant has the right to submit a request to resort to another doctor to provide expertise, but this may be a reason for conflicting reports. Therefore, the judge has the right to choose between the opinions of experts and rule on the basis of the report that reassures him and he can ignore the report he finds with wrong justifications far from reason and logic. The judge is not bound by the expert’s opinion if he considers that the report, in his opinion, contradicts with other facts that are more convincing from a legal point of view.

The expert’s duty is to study the patient’s condition and the stages and factors of the disease’s development, and then determine whether the condition reached by the patient is due to the severity of the disease or the treatment decided by the medical staff, with research and investigation whether the medical staff has committed a medical error in violation of the scientific rules of the medical profession or not.

From a scientific point of view, many court-appointed doctors may apologize with the intention of evading expertise or may submit a non-impartial report in the interest of their colleague, the defendant. Accordingly, the legislator approved the expert committee as stipulated in Article (18) of the Federal Law No. (4) of 2014 for the medical responsibility, that “an expert committee of specialized doctors in all medical specialties shall be established by a decision of the Minister or the head of the health authority, as the case may be, to be called the Medical Liability Committee, and the executive regulation shall specify how it is formed and the rules and procedures for its work.

The legislator indicates in Article (19) that “All complaints regarding facts related to the medical error shall be submitted or referred to the health authority, in accordance with the controls specified by the executive regulation. The health authority shall refer complaints to the Medical Liability Committee mentioned in this decree-law, and it shall draw up a reasoned report in its opinion in each case presented, based on what is established from its examination and after reviewing the medical file and what is available to the committee of facts and other information as a result of its investigations, discussions and technical study of the case. It shall submit its report to the health authority within thirty days from the date of referral. The date may be extended for a similar period or more with the approval of the health authority, at the request of the committee.

In addition, the legislator gives the right to appeal the report of the Medical Liability Committee by the complainant and the practitioner of the profession complained against, through a grievance submitted to the competent health authority within thirty days from the date of their legal notification of what the report concluded, in accordance with the provision of Article (20) and the competent health authority shall refer the report and all papers and documents related, and send the grievance to the Higher Committee for Medical Liability stipulated in Article (21), as this committee is exclusively competent to look into grievances from the reports of the medical liability committees. It submits a reasoned report with its opinion on each grievance in accordance with the procedures and rules determined by the decision of the Council of Ministers. The Supreme Committee may support the report and reject the grievance, amend, or cancel the same. Its report is considered final, and the medical reports issued by this committee cannot be challenged in any way before any authority.

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