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The awaited Cabinet Resolution No. 40 of 2019 (‘Resolution’) was recently issued to expand upon the provisions of the Federal law No. 4 of 2016, concerning Medical Liability (‘Medical Liability Law’). This article considers the key considerations arising from this important development.
The Medical Liability Law referred to the issuance of a resolution, which would elaborate upon different points addressed in the Medical Liability Law, including the definition of ‘gross medical error’[i]. The Resolution has now been issued, which provides this important clarity.
To provide the necessary context, Article 6 of the Medical Liability Law states that:
“A medical error is an error committed by the practitioner of the profession (practitioners of any of the medical professions or related professions set by a Ministerial Resolution as defined by the Medical Liability Law) (“Practitioner()”) for any of the following reasons:
The Executive Regulations of this Decree-Law shall set the standards of gross medical errors.”
Prior to the issuance of the Medical Liability Law, Practitioners who committed any medical error were also potentially criminally liable.
After the issuance of the Medical Liability Law and Resolution, which includes the definition of ‘gross medical error’, only those Practitioners who are determined to have committed ‘gross medical error’, and not merely an ‘error’, can be held criminally liable.
The Resolution came into force to clarify any ambiguity around the definition of ‘gross medical error’. An English translation of Article 5 sets out scenarios and criteria wherein medical malpractice shall be considered as ‘gross medical error’, as follows:
Moreover, the above Article notes that the Medical Liability Committee (‘Committee’) and the Supreme Committee of Medical Liability (as referred to in the Resolution and Medical Liability ), within its functions, shall examine all complaints and grievances related to the alleged medical error and identify the following:
Additionally, Articles 9 to 15 of the Resolution provide detail regarding the formation of the Committee along with the rules and procedures that the Committee must follow.
Article 9 of the Resolution provides that at each health authority being the Ministry of Health & Prevention (‘Ministry‘), or any federal or local government authority concerned with health affairs in the UAE) (‘Health Authority‘), the Committee shall be established by way of a resolution issued by the Minister or the Head of the Health Authority. The membership of the Committee shall include physicians and specialists as determined by the Health Authority. The resolution issued in this respect shall appoint a chairman of the Committee, his deputy, members, rapporteur, and also specify the term of membership.
It is provided also under Article 9 of the Resolution that the Committee may establish one or more technical committees which shall consist of specialist physicians to seek their opinion on the file, without having counted votes on the Committee decision. Additionally, the Health Authority shall assign or establish an organisational unit for the purpose of assuming administrative tasks related to the Committee’s activities.
Article 11 of the Resolution regulates how the meetings of the Committee are convened and how opinions are issued. It provides that the Committee is convened by an invitation from its chairman, or his deputy in the event that the chairman is absent, so as to examine the cases referred thereto The quorum of a Committee meeting is achieved when two thirds of the members are in attendance, and provided the chairman or his deputy is among them. The Committee’s opinion based on the majority vote of members who are present. In the event of a deadlock, the Chairman will have the casting vote. Agreement of two thirds of the present is required if the medical error is to be categorised as ‘gross’.
Article 12 of the Resolution is an important addition as it imposes some restrictions on members of the Committee. It states that none of the members of the Committee may attend its meetings and give an opinion on any subject presented thereto in any of the following cases: (i) if the member is a relative (up to the fourth degree) of any of the parties to the complaint; (ii) if he/she works under the management or supervision of one of the parties to the complaint ;(iii) if he/she previously consulted with or treated the patient for the same medical condition which forms the subject matter of the complaint; or (v) if there is another relationship that constitutes a conflict of interest and questions the ability of the Committee member to be impartial when considering the complaint.
The foregoing prohibition shall also apply to anyone of whom the Committee seeks assistance in performing its functions.
Article 15 of the Resolution regulates the delivery of the report prepared by the Committee in a given complaint. It provides that the Health Authority shall submit a copy of the Committee report to all parties to the complaint by any of the following means:
Article 2 of the Resolution expands on the obligations and rules to be followed by whoever practises the profession during the course of his/her work, without prejudice to the duties provided for in the Medical Liability Law, such as:
Article 3 of the Resolution further elaborates on the rules and procedures that need to be satisfied before conducting surgical operations such as:
The Medical Liability Law had previously provided that cases of treatment of special nature (to be outlined in the Resolution) shall be treated as surgical operations. Article 3 of the Resolution now provides that the rules and procedures in the preceding paragraph would apply to cases of treatment of a special nature, which include:
Article 18 of the Resolution addresses disciplinary actions. It notes that in the event of violations of the Resolution, and without prejudice to any provision in the Resolution or civil and criminal liability (and unless there is a specific provision in the laws related to the disciplinary regulations of the Health Authority), the disciplinary actions of the following laws shall apply:
The Resolution is welcomed as it provides the necessary details to allow effective interpretation of the Medical Liability Law and assessing and implementing the rules and procedures that need to be adhered to by health facilities, Practitioners and by the Committee in determining whether these standards have been met.
In particular, by defining ‘gross medical error’, the Resolution provides more clarity on the risk of criminal liability that Practitioners may face. Consequently, there may potentially be a reduction in the number of malpractice criminal complaints brought before the courts as the legal parameters are now much more clearly laid out.
Al Tamimi & Company’s Healthcare Practice and Litigation team regularly advises on criminal and civil liability in connection with medical malpractice. For further information, please contact email@example.com.