BY: SANIA KAUSHIK (Legal Research Intern, The Law Reporters)

According to a study undertaken by the John Hopkins Hospital, Medical Negligence is the third leading cause of death, trailing behind heart attacks and cancer. Ironically, patients go to a doctor because they trust their competence and professional commitment to treat them with the utmost care. However, the study above reveals that the medical practitioner’s obligation is frequently violated, resulting in significant physiological, financial, and moral harm to the patient. 

Res ipsa loquitur is a doctrine that states that the thing speaks for itself. This idea is most commonly used in circumstances of Negligence (including Medical Negligence), where there is a duty, a breach of that duty, a subsequent casualty, and resulting harm or injury. The legal structure surrounding the sector has evolved over time in response to the rise in developing medical issues and superior health facilities. 

With the increased regulatory foothold on medical practitioners and healthcare institutions, legal professionals now have access to numerous reports, records, timesheets, and patient files. In 2016, UAE released the Federal Decree-Law Number 4 of 2016 on Medical Liability, with provisions largely governing the actions of doctors, establishing a dispute resolution framework, and other aspects of medical Negligence.

What exactly is Medical Negligence?

In simple terms, Medical Negligence is when a doctor fails to behave with the required level of care, causing an injury or loss to the patient. However, in a more technical sense, Medical Negligence is defined as an act or omission (failure to act) by a medical professional that deviates from the established medical standards. 

A medical professional is expected to take appropriate care and make sincere efforts following the established medical standards under the Medical Liability Federal Law No. 4 of 2016 (the “2016 Law”). Failing to follow these or pay attention to the medical procedure or lack of prudence, amounts to medical negligence.

Medical Negligence as a Civil Wrong

As a tort or civil wrong, negligence is defined as a breach of duty caused by the failure to do something that a reasonable person would do in the same circumstances or by doing something that a prudent and intelligent man would not do. Being medical professionals, doctors have a legal and moral obligation to their patients to provide a reasonable level of care.

Medical negligence is subject to the following conditions:

● When doctors fail to uphold their responsibility of care to their patients. 
● When he has disobeyed that obligation.
● The patient has suffered consequential damage as a result.

Medical Negligence as a Criminal Wrong

The essence of Criminal Law is based on two elements: Actus Reus and Mens Rea, which are taken from the legal maxim “actus non facit reum nisi mens sit rea,” which states that no act may be punished without a guilty mind. For considering Medical Negligence as a criminal wrong, the mental component needs to be necessarily established for the misconduct on the part of the medical professional to initiate penal proceedings. Through some landmark cases, it can be asserted that medical professionals can only be held criminally liable under Article 34 of the Medical Liability Law if and only if the medical error is “Gross” in nature.

According to the Federal Law of 2016, “Gross Medical Error” must have occurred to show criminal medical Negligence. Previously, “gross medical error” was not defined adequately under that Law. Later in 2016, the UAE passed Cabinet Resolution No. 40, which clarified the term “Gross Medical Error” and other ambiguities in the Law.

Article 5 of the Executive Regulations defines a gross medical error. It may include: “An error that causes the death of the patient or fetus, the eradication of an organ by mistake, the loss of an organ function, the doctor being under the influence of alcohol or drugs, and Severe carelessness, such as giving an overdose or leaving medical equipment in the patient’s body.”

Who can file a case for medical negligence and what is the procedure?

Any patient affected by a health care provider’s actions or treatment received by a healthcare facility can file a medical complaint. A family member may also file a medical complaint or even an individual acting on behalf of the patient, provided they have a power of attorney. 
The procedure to file a complaint has now become widely accessible. One can file the claim of medical negligence online by answering a set of questions. While filling out the form, an individual should explain and specify the medical complaint and name the professionals and health care facilities involved.

What can be the consequences for a practitioner in case of Medical Negligence in the UAE?

In the UAE, victims of medical negligence have three options for taking legal action against their doctor. They could file a complaint with the healthcare authority, file a civil prosecution case in court, and even launch a criminal case against the doctor with the police or public prosecutor if the consequences of the negligence were grave. 

The state prosecutor will bring any criminal action on the individual's behalf, and the three complaint avenues can be pursued simultaneously or sequentially. In the UAE, if the misconduct and subsequent harm are found substantial enough to warrant criminal prosecution, the doctor responsible could face a prison sentence. If medical negligence is proved, the doctor might face a minimum of one year in prison and a fine of up to 10,000 AED.

These fines must be paid to the authorities in addition to any monetary compensation given to the victim. In 2012, for example, the family of a 12-year-old child who suffered brain damage due to malpractice was granted 7 million AED. The prison sentence can be increased from one to two years if the misconduct results in permanent impairment or death. Suppose the practitioner’s overuse of alcohol or narcotics was proven to cause the malpractice. In that case, the prison sentence could be enhanced to five years.

The healthcare sector in the United Arab Emirates has grown dramatically during the last two decades. The medical liability law in the United Arab Emirates now specifically states that medical professionals will be held accountable if they conduct a medical error with the aim and motive of profit or any other benefit. 

In the UAE Civil Code, there is a broad tort notion that a person who causes harm to others is liable for the claimant’s loss or injury. Civil negligence ensures that doctors perform responsibly as per the norms set. On the other hand, criminal negligence seeks to determine if the act or omission caused substantial harm. The Law suggests that doctors and healthcare practitioners constantly evaluate the implications and reasons for deviation from regular practices, given the abundance of practice standards, precedent, and literature available in medicine.

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