What are the criminal liabilities in medical negligence?
Posted by hassan on April 14th, 2020
George Bernard Shaw has righteously quoted we have not lost faith, we have just transferred it in the medical profession. Thus, an exceptional venerable position has been given to doctors, but, it is natural that greater reverence comes with great responsibility. Over time, we have witnessed the pace of globalisation and commercialisation in all spheres of life including the medical profession. New technologies and medicine have assisted us in improving the healthy lifestyle.
The relation between the patient and the doctor has been in a bubble for a while as we have come across numerous medical negligence cases where medical professionals have failed to exercise the reasonable duty of care. Negligence is usually an exception to the general rule, but when such circumstances arise, the legal framework must be appropriate to ensure the accurate treatment of both the physician and the patient. Law Firms in Dubai believes that all our readers have come across tabloid horror stories of surgeons removing the wrong body part or not exercising the due care. In line with the foregoing, we will discuss the recent case of Dubai Public Prosecution (DPP) who charged a medical practitioner for malpractice. The Criminal Lawyers in Dubai through this case study will enlighten our readers about the Court's perspective towards medical negligence in UAE.
Facts of the Case
A complaint was filed by a patient (Plaintiff) against a doctor hereinafter referred to as Defendant, for an alleged act of medical malpractice. The plaintiff stated that he underwent an operation for treating a herniated disc in the spinal cord, however, the operation resulted in severe damage and permanent disability to the Plaintiff. Accordingly, the Plaintiff filed a complaint before the Dubai Health Authority (DHA) and the Higher Committee of Medical Liability (HCML). Pursuant to the criminal complaint and the complaints registered with DHA and HCM, DPP framed charges against the Defendant for medical malpractice for failing to adhere with the standard medical procedures. The reliance was based on Article 1, 3, 6 and 34 (1) of the Federal Decree Number 4 of 2016 concerning the Federal Medical Liability Law (the Medical Liability Law).
The Defendant argued that Article 34 of the Medical Liability Law punishes the medical professional who commits gross negligence. However, the law does not define "gross medical negligence", which is supposed to be mentioned in Executive Regulations yet to be released publicly. The Medical Liability Law in accordance with Article 6 defines a Medical Error as follows:
"A medical error is an error committed by the professional under the following reasons:
a. His ignorance towards the technical issue which he is supposed to be aware of;
b. Failure to adhere with the professional and medical standards;
c. Failure to exercise medical due diligence;
d. Negligence in acting reasonably and with precaution.
The criteria for gross medical negligence will be set out in Executive Regulations of this Decree."
The law further states that "gross" error will be determined by the report of HMCL, pursuant to its Article 18. The Article highlights that upon a decision passed by the Minister or president of the healthy body, a committee known as "Medical Liability Committee" will be constituted comprises of the physicians specialized in all medical fields. The implementing regulations will set out the rules and procedures of its functioning. Such committee shall be exclusively liable for settling complaints referred by DHA, Public Prosecution or by the court and should determine whether or not the error has been committed, the percentage of contribution in the error, the percentage of the disability. The claims for compensation will not be accepted unless reviewed by the Medical Committee.
In lieu of the foregoing, the Defendant contends that there was no evidence of "gross" medical error and thus, he must be charged guilty. However, the Court of First Instance rejected the arguments penalized the Defendant by way of fine worth AED 200,000 (UAE Dirhams two hundred thousand). Subsequently, the appeal in the said matter was rejected, and the judgment of First Court was upheld.
Court of Cassation
The case was thereafter referred to the Court of Cassation where the judgment of Court of First Instance and Appeal was reversed. The court affirmed that criminal liability under Article 34 only arises in the case of "gross medical negligence." The highest court opined that UAE legislative framework has constraint the court from penalizing the accused medical professional only under the provision of the law. Thus, the medical practitioner is only liable where there is an element of Gross medical negligence. Court ordered the HMCL to determine the content of medical error or gross error. The court further relied on Article 42 of the Medical Liability Law and highlighted that the Cabinet Resolution Number 33 of 2009 would remain in force until the Executive Regulations are issued. The court of Cassation lastly concluded that the appealed judgment fails to address the shortcomings in the investigation procedures, which were neither entertained by DPP and the Court of First Instance despite being raised by the Defendant in original defence. The case was again referred to the Court of Appeal.
Upon reviewing the case for the second time, the Court of Appeal requested HCML to determine the error and its extent. The HCML concluded that the error was not gross and thus, the Appeal Court overturned the previous judgment and acquitted Defendant of all charges.
Upon reviewing the foregoing case, it is evident that the medical professional will only be held criminally liable under Article 34 of the Medical Liability Law. If the medical error defined under Article 6 of the Medical Liability Law is "Gross". While, we await the Executive Regulations in this regards, the Medical Liability Committee has the authority to observe the extent of such error and can ascertain whether it's gross or not.
Dr. Hassan Elhais is a legal consultant in Dubai, specializing in the drafting of all statements of claim, memos and consultation on litigation of all manner.
Website: https://www.professionallawyer.meAlso See: Medical Liability, Medical Negligence, Liability Law, Medical Error, Negligence, Medical, Liability
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