Concept of Medical Error
It is lawfully established that every person is liable for his/her acts. The physician’s liability towards his/her patient is a personal liability and constitutes a form of civil liability that requires existence of error and damage and the causality. The burden lies on the claimant to prove occurrence of damage and to provide evidence affirming that the three elements materialize.
Determination of Medical Error
The error in general … is the person’s deviation from the natural behavior required by law, while such person realizes the consequences of this behavior.
The UAE legislator defined the medical error in Article (6) of Decree Law No. (4) of 2016 as follows:
A medical error is the error committed by a practitioner due to any of the following reasons:
1. Ignorance in the technical matters that are supposed to be known by any practitioner of the same degree and specialization.
2. Non-compliance with the recognized professional and medical principles.
3. Not exercising due diligence.
4. Negligence and not paying attention.
Under the Decree Law, the physician’s liability is a tortious liability even if there is a contractual relationship between the hospital and the patient. The physician’s commitment to treat is a legal commitment derived from the legal rules that require the physician to administer the necessary treatment and to be cautious. Otherwise, the physician shall be accountable for tortious liability.
Medical Error Standard
The essence of medical error is … deviation from the customary behavior of a physician at the same professional level found himself surrounded by the same external conditions and violated the duty of caution and prudence imposed by the legislator.
A medical error is either a professional or technical error or an ordinary error. The professional or technical error is the error committed by the physician when s/he violates the rules and technical principles imposed by his/her profession as a physician and directly related to the duties of the medical profession; or the physician fails to inform the patient with the available option of treatment or fails to obtain the patient’s consent before surgery, except for the cases determined by Article (5) of the Decree-Law authorizing the physician to avoid the consent of the patient and avoid disclosing the know-how except in the cases specified in the aforementioned article, or if the error is connected to some technical acts of the physician when s/he is committed to achieving a result rather than doing due diligence, e.g. blood transfusion – medical tests …. etc.).
The normal or moral error is committed when the physician fails to consider caution and prudence that should be committed by all members of society, e.g. the error committed when the physician performs surgery while drunk).
Medical Civil Liability
It is a compensation given to victim or his/her heirs for all material and moral damage caused by a medical error included in the four cases specified in Article (6) of the Decree-Law.
The medical civil liability is divided into contractual liability and tortious liability. contractual liability shall be borne by every contracting party who has not fulfilled his/her obligations stipulated in the contract, according to which the physician is committed to prudently and diligently achieve what has been agreed upon. The tortious liability is the penalty imposed on the physician because of breach of legal obligation.
If medical error is committed by a Practitioner of Profession, causing harm to the patient, the concerned parties may, in accordance with Article (18) of the Decree-Law, submit a complaint to the health authority, which in turn shall refer the same to the “Medical Liability Committee” established by decision of the Minister or the head of health authority in all medical specialties. Such Committee shall consider the complaints referred to it by the health authority, the public prosecution, or the court; decide whether or not the medical error occurred, and (if yes) determine its seriousness. In case of multiple liability, roles of those who committed this error shall be determined, clarifying the cause and damage as well as the causality between the error and the damage; determine the percentage of relevant organ disability; and refer a substantiated report to the health authority within thirty days from the date of referral. Such period may be extended for a similar period(s) based on the approval of the health authority at the request of the Committee.
Both the complainant and the accused Practitioner of Profession may challenge the report of the Medical Liability Committee under a grievance to be submitted to the competent health committee within 30 days from the date on which they are legally notified of the report’s conclusion. The report of the Committee shall be taken into account, if it is not challenged within the time limit. Upon elapse of such time, no challenge may be submitted against the report before any entity.
If a grievance is submitted, the health authority shall refer it and all papers to the Supreme Committee of Medical Liability that has the right to uphold the report and reject the grievance, amend or cancel it. Supreme Committee of Medical Liability’s decision shall be final and binding on concerned parties.
According to Article 23 of the Decree Law, the health authority may suspend the license until the Medical Liability Committee submits its report as to the facts related to the medical error.
Practitioners of Profession may not be interrogated, arrested, or provisionally detained because of a complaint submitted against them, unless the final medical report is received from the health authority, stating that the culprit actually committed a serious medical error.
Compensation claims brought because of medical liability shall not be accepted until after recourse and referral to the Medical Liability Committees in accordance with the provisions of this Decree Law.
Compensation is the money adjudicated against anyone who has caused harm to self, fund or honor of others, and is related to the seriousness of medical error and the volume of the damage.
Compensation may be in kind or monetary, and compensation in kind is given by reinstating the situation to the extent that it was before the damage, where the same is medically possible. Monetary compensation is the amount estimated by the judge in order to remedy the material and moral damage sustained by the victim.