Types of the Medical Malpractices – The UAE Medical Liability Law
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Types of the Medical Malpractices
The discussion of the medical malpractice issue is not intended to prejudice the medical staff or condemn them, but rather it is intended to balance the interest of the patient and the medical staff in order to ensure that the patient receives the appropriate treatment according to his condition and at the same time compensates for any damage caused by the malpractice of the medical staff, in addition to being an incentive to develop the medical practice and adhere to the scientific and technical rules and to achieve a balance between the integrity of the medical staff and the confidence of the patient.
The Supreme Court of the United Arab Emirates has adopted the idea that the medical staff are responsible for every mistake they commit, whether it is material or technical, as it has decided that “it is established that the commitment of the medical staff, and upon the judiciary of this court, is not an obligation to achieve a result that is to heal the patient, but it is an obligation to take care, but the care needed of him requires that he exerts a sincere effort for his patient that agrees – in other than exceptional circumstances – with the established principles in the science of medicine. The medical staff shall be questioned about every failure in his medical specialty that does not occur by a medical staff in his professional level, found in the same external circumstances that surrounded the responsible medical staff, and he shall also be questioned about his normal mistake, regardless of the degree of its severity.
The medical malpractice is generally divided into two types:
– The Technical or Professional Malpractice
It is the malpractice that the medical staff makes as a result of violating the rules and technical principles on which the medical profession is based. It is an malpractice related to the technical principles of the medical profession, in other words, “the medical staff’s departure in their professional and technical behavior from the medical rules and principles stipulated by science and recognized theoretically and scientifically in the medical communities at the time of carrying out the medical work.” The technical malpractice of the medical staff is also defined as “the malpractice that occurs by the medical staff while practicing the medical profession and is directly related to the principles of the medical profession so that it is closely related to the medical staff practicing the same and it is impossible to attribute it to others.
The technical malpractice can be divided into several categories:
- Failure of the medical staff to obtain the consent of the patient.
The medical staff must be committed to obtaining the consent of the patient, otherwise the medical staff will be mistaken, except in some cases in which the consent of the patient or his representatives and his family can be dispensed with, as stated in the provision of Article (5) of the UAE Medical Liability Law “As for the cases in which it is possible to dispense with the patient’s consent (1) If the patient is in a situation that does not allow him to give his consent, (2) The patient’s condition requires urgent medical intervention, (3) If the patient is incompetent. In these cases, the consent of the patient’s family or their legal representatives is required and is considered a reliable order for the purposes of agreeing to start treatment or surgical intervention.
- The Commitment of the medical staff to inform the patient:
Article (4) of the UAE Federal Medical Liability Law of 2016 stipulates the obligation to inform the patient, given that the obligation to inform is a cornerstone in the conclusion of the medical contract, while the obligation to inform is a matter related to the proper implementation of the medical contract.
In order for the patient’s consent to be true and the medical staff not to be exposed to any responsibility, he is required to inform the patient about the nature of his illness, the method of treatment and the risks of any surgical procedure. Otherwise, the medical staff will be responsible even if they did not commit a mistake in the practice of their work, as the patient’s satisfaction with the treatment is not considered valid until after the medical staff clarifies to him the nature of the disease he suffers from and the extent of the risk that may occur during receiving treatment, and this is what Article (4) stipulates in sections 5, 7 and 8 of the Medical Liability Law.
The UAE legislator has obligated the medical staff to take into account the information, in accordance with Section (7) of the Article (4) of the Medical Liability Law No. (4) of 2016, which states that “Informing the patient of the nature of his illness and the degree of its severity, unless his interest requires otherwise, or his psychological condition does not allow him to be informed. The patient’s family must be informed in the following two cases: a. If he is incompetent, b. If his health condition does not allow him to be informed personally and it is not possible to obtain his consent to inform his relatives”.
- The commitment of the medical staff not to disclose the secrets of the profession:
One of the most important ethical and humanitarian duties of the medical staff is to keep the secrets of the profession. The medical staff is obligated to treat all the patients’ cases with care, humanity and confidentiality. Therefore, the UAE Medical Liability Law No. (4) of 2016 has affirmed this obligation as stipulated in Paragraph (6) of Article (5) of this law that the medical staff is prohibited from disclosing the patient’s secrets that he discovers during or because of the practice of the profession, whether the patient has entrusted him with this secret or the doctor has discovered himself. Despite the aforementioned, there are cases where the medical staff is exempted from his obligation not to divulge the professional secret, and it is permissible to divulge the secret, such as:
√ The patient’s consent to disclose the secret.
√ Requirement of giving a testimony before the courts.
√ In the case of life insurance and the like.
√ Cases of extreme necessity, for example, to maintain the public health.
Therefore, the UAE legislator has specified the cases in which the secret can be disclosed within Paragraph (6) of Article (5) of the Federal Law on Medical Liability No. (4) of 2016 which are:
√ If the secret is disclosed according to the consent or request of the patient.
√ If disclosing the secret is in the interest of the husband or the wife, and they are personally informed of the same.
√ If the purpose of disclosing the secret is to prevent the occurrence of a crime or to report it, provided that the disclosure in this case is to the competent official authority only.
√ If the doctor is assigned by a judicial authority or an official investigation authority in the State as an expert or a witness in an investigation or a criminal case.
- The ordinary malpractices committed by the medical staff:
It is defined as “what the medical staff make when performing their job without having anything to do with its technical origins, for example performing a surgical operation while under the influence of drunkenness, and the criterion for this malpractice is the deviation from the usual behavior.” The Federal Law No. (4) of 2016 regarding the medical liability states in paragraph (1) a, c of Article (9) that “the patient may not be removed from the health facility unless his health condition permits this, according to the recognized medical principles, or based on his desire to leave despite being informed of the consequences of his exit, provided that a written acknowledgment is taken from him that he holds the responsibility”.
Examples of the material malpractice include:
* The medical staff’s refusal to treat the patient without justification.
*The medical staff orders to discharge the patient from the hospital, even though his condition requires staying in the hospital, without a legitimate reason.
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