The Medical Malpractice Compensation In Light of the New UAE Medical Liability Law
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The Medical Malpractice Compensation
In Light of the New UAE Medical Liability Law
Compensation is defined as “refunding the replacement of the damaged,” or it is “the money that is imposed on the person who inflicted harm on others in person, money or honor.” In other words, it is “the obligation to compensate others for the loss of money or loss of benefits, or for the partial or total harm occurred to the human soul.” A part of the jurisprudence defines compensation as “the penalty of liability and the purpose of which is to restore the balance that has been disturbed as a result of the damage caused by the mistake,” and the parallel will only be achieved by restoring the injured position to what it was before committing the mistake.
In fact, the new law on medical liability does not explicitly refer to the issue of compensation, as the legislator has only clarified the cases in which civil liability of the medical staff or health facility is excluded and dealt with the issue of compensation claims in the provision of Article (18), which states that: “Compensation claims that are filed on the grounds of medical liability are not accepted except after resorting to and referring to the medical liability committees, in accordance with the provisions of this decree-law.”
The legislator restricted the judiciary from accepting compensation claims and the right of the parties to resort to judiciary for medical harms of the patient except after referring them to the medical liability committees. This is due to the fact that the judge is not familiar with the medical technical issues, determining the occurrence of the harm and the existence of civil liability against the medical staff, which requires examining the patient by a group of doctors and reviewing the medical procedures and everything related to them, and this is something that judges cannot do, so the Supreme Committee for Medical Responsibility has to form a committee of a group of doctors to review the medical work procedures, the behavior of the medical staff and the circumstances surrounding the practice of medical work in order to indicate the extent of the medical staff’s civil liability for the medical error that requires compensation, and then the judiciary’s role comes based on the committee’s report to estimate the compensation due against the harm.
Compensation is the legal means through which the aggrieved person can obtain compensation by resorting to judiciary to claim for compensation by registering the case before the competent courts, similar to any other civil case, or by claiming the civil right before the criminal judge in cases where the error constitutes a crime. The compensation claim is defined as “the judicial means through which the aggrieved person can obtain compensation from the responsible party for the harm he sustained.” An agreement may be reached between both the medical staff and the patient to estimate compensation for the harm that befell the patient, or a final judgment may be sentenced, so the aggrieved person shall not have the right to claim damages beyond what was agreed upon or the judicial ruling sentenced unless other matters arise that were not agreed upon.
The Emirati legislator takes into account the day of pronouncement of the judgment, as it is considered that the judgment reveals and suspends the right to compensation and not its source, and that until the sentence of the judgment, the right to compensation is of unlimited amount, and it is the judgment that determines its amount, and this means that compensation is the means of the judiciary to remove the harm or mitigate it for the aggrieved party, and it is the penalty imposed when civil liability is established against the medical staff or health facility, if it is proven that the defendant (medical staff – health facility – insurance company) is responsible for the harm incurred by the claimant (the patient or his family), then the judge must compel the responsible party to compensate the aggrieved party and redress the harm incurred by him.
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