The new UAE Cabinet Resolution no. 40 of 2019 (“Resolution”) provides necessary additional details to implement the provisions of the Medical Liability Law (Federal Law Decree No (4) of 2016 concerning medical liability), with regard to:

• defining “gross medical error”;
• the complaints and grievance process related to the medical errors;
• the formation and conduct rules and procedures of the “Medical Liability Committee” to be formed at each health authority;
• the controls, rules and procedures regulating the conduct of medical research and experiments on humans; and
• the disciplinary powers of the health authorities pertaining to medical errors.

Herein, we highlight a few of the key provisions.

Medical Error

The new Resolution sets out the circumstances in which it is considered that a medical practitioner (for example, a physician) has committed a “gross medical error”. Article 5 of the Resolution states:

Medical error is considered to be “gross” if it causes the patient or the fetus death, amputation of a body limb, loss of the body part function, or any other gross damage, in addition to the existence of any of the following factors, as a result of which the medical error is committed:

1. extreme ignorance of the recognized medical code of practice, as per the degree and specialization of the healthcare professional;
2. following a method not medically recognized;
3. unjustified deviation from the medical rules and code of practice in practicing the profession;
4. being intoxicated with alcohol or other intoxicants;
5. gross negligence or lack of clear attention in following the standard procedures (such as leaving medical tools inside the patient’s body, giving an overdose of medicine, not operating a medical device during or after the surgery, recovery or delivery, or not giving the patient appropriate medicine or any other action that falls under gross negligence);
6. intentionally practicing outside the scope of the specialization or privileging granted under the healthcare professional’s license; and
7. using means of diagnosis or treatment on which the healthcare professional has never engaged or been trained, without medical supervision.

Prior to the issuance of the Medical Liability Law, physicians who were determined to have committed any malpractice were also potentially liable for criminal medical negligence. After the issuance of the Medical Liability law and Resolution, which includes the definition of gross medical error, only those physicians who are determined to have committed “gross negligence”, and not merely “negligence”, can be held liable for criminal medical negligence.

Remote Health Services

The Resolution also sets out the terms and conditions of providing remote health services. This clarification of the law has been eagerly awaited. The key definitions of “Remote Health Services” as per the Resolution are as follows:

• Remote Medical Consultancy: Consultancy by using information technology and telecommunication to provide advice regarding the best way to deal with a medical case, either between a physicians or between the physician and the patient, in the cases in which the consulting physicians or patient and physician are not in the same location.
• Remote Treatment Diagnoses: The prescription of a treatment plan in the cases where the physician and the patient are not in the same place, by using information technology and telecommunications either after a remote consultation or conventional clinical examination.
• Remote Diagnosis: To identify the disease or the medical condition of a patient by using information technology and communication with the medical service provider.
• Remote Medical Monitoring: To obtain all the vital signs and monitor the patient condition by using information technology and tele-communications from the health service provider.
• Remote Medical Intervention: Any remote medical intervention by using information technology and telecommunications.

Conclusion

Of key importance is that this Resolution provides necessary additional details regarding how the provisions of the Medical Liability Law (Federal Law No (4) of 2016) should be implemented. In particular, the Resolution helpfully sets out the circumstances in which a physician has committed “gross negligence” and, hence, may be criminally liable. We anticipate that this will decrease the number of complaints related to medical errors referred to the criminal courts.

Should you require any advice concerning medical errors or to obtain clarifications concerning the Resolution or the Medical Liability Law, we would be happy to assist. In a forthcoming Law Update article, we will expand upon this development.

Key Contacts:

Ahmed Allouz
Partner, Head of Litigation – Dubai
a.allouz@tamimi.com

Mohamed Al Marzouqi
Partner, Head of Litigation – Abu Dhabi
m.almarzouqi@tamimi.com

Andrea Tithecott
Partner, Head of Regulatory and Healthcare
a.tithecott@tamimi.com