Federal Decree No 4 of 2016 and Cabinet Resolution No 40 of 2019 (‘the New Law’) are key pieces of legislation which lead to a seismic shift in how medical malpractice claims are dealt with in the United Arab Emirates. 

The New Law came only 8 years or so after another piece of important legislation Federal Law No 10 of 2008 Concerning Medical Liability which introduced a Higher or Supreme Committee of Medical Liability (‘SCML’) whose function was to provide opinions upon medical cases at the request of official Government Departments i.e., Public Prosecution, Competent Courts, and Health Authorities. Its task can be simply put - to assess medical cases to establish whether there was any medical error or not, any resulting damages and the causal relationship between error and the damage.

The members of the SCML are drawn from the ranks of physicians from both the public and private medical sectors. The SCML has wide powers to summon whomever it deems necessary to discuss the case and require what documents it deems necessary and may delegate tasks to specialised sub-committees from amongst its members. Regulations are in place to ensure proper working practices, appointments, and remuneration.

After 2012, when the SCML was fully convened and in full swing it seemed to offer real benefits to the administration of justice in medical malpractice cases. It was an objective and authoritative body drawn from distinguished and experienced physicians. Those physicians under scrutiny– either Defendants in civil and/or criminal cases -seemed confident that the technical aspects of sometimes highly technical cases were being reviewed by qualified and experienced peers. Lawyers seemed content that having one single SCML would go some way to ensure a degree of consistency with decisions and outcomes. Prior to the SCML there were a myriad of Court-appointed ad hoc committees of assorted physicians and forensic experts from the various health authorities/Ministry of Health (now Ministry of Health and Prevention) and consistency of approach and standards was not realistically possible.

It didn't take long for the SCML to be involved in most cases that came before the criminal and civil courts.  It was originally intended that decisions were to be promulgated within 30 days, although extensions of time were possible. After several busy years decisions were regularly expected to take between 6 to 12 months and related Court proceedings were put on hold commensurately.

The New Law introduced sweeping changes and Health Authorities (Dubai Health Authority in Dubai, Department of Health Abu Dhabi etc) were mandated to form Medical Liability Committees ('MLCs') – broadly along the same lines as the SCML - to review cases involving medical error and gross medical error, the latter of which constituted a new crime with stiff criminal fines. The SCML was repurposed, and its new function was to serve as the final appellate body to review appeals of the subordinate MLCs decisions on cases. The SCML decisions on appeals could not be challenged before any other body. In a bold move to attempt to remove spurious cases from the Court docket the New Law provided that a civil case for compensation could not be commenced unless there was an MLC decision.

Even after the MLCs were convened and operating, we saw several medical malpractice compensation cases filed without MLC decisions, but the Courts dutifully dismissed them, on the grounds of improper procedure.

Leaving the interruptions of Covid 19 aside- MLCs were and still are reasonably quick in reviewing/ deciding on cases, and 3 months or less to deliver a report on a case is not uncommon. MLCs regularly called physicians and patients for interview and their reports are issued on a standard form that ensures some degree of consistency in approach although they can- if truth be told- vary widely when it comes to cogency and quality.

Appeals of MLC decisions are as of right for complainants and respondents, provided they are filed within 30 days.  While MLCs churn out decisions swiftly, both patients and hospitals/physicians churn out appeals of unpopular decisions- equally as swiftly. An MLC decision is bound to be unpopular to at least one of the parties involved, sometimes although it is not every case that leads to an appeal.

The corollary of this is that we see a relatively high volume of appeals to the SCML which has over the past year or so lead to a ‘logjam’ of appeals pending before the SCML such that SCML decisions are now taking between 18 - 24 months and Court proceedings are being put on hold commensurately whilst awaiting these decisions. A few months ago, appeal filing fees of AED 5,000 were introduced, perhaps, to reduce the pressure on SCML although the reality is that this would reasonably tend to inhibit Patients of more modest means rather than Physicians from filing.

The question arises- will the introduction of appeal filing fees be enough to address the problem of delays? The principles of natural justice would tend to baulk at any measures that would tend to restrict or impinge upon the parties rights to be heard and challenge decisions that they disagree with because- make no mistake-  medical malpractice cases at least on the grounds of liability issues  are now won and lost in the MLC and SCML stages leaving the Court to only decide on quantum, i.e. to adjudge much should be paid out to the Plaintiff.

Simply increasing the volume of cases and sittings of the SCML would seem impracticable bearing in mind that SCML members are also full-time medical professionals with important /senior positions and careers to manage, -alongside their SCML commitments- and notwithstanding that their appoints on the SCML are for the term of 2 years only.

Some commentators have suggested the creation of a SCML in each health authority, i.e., matching with its own MLC, would share the appellate burden of a single central SCML and reduce waiting times. Leaving aside the costs/administration aside some argue that this may lead to a loss of uniformity of approach and consistency that a single SCML can offer. Some argue that the trade -off may be worth if it would achieve the desired result of getting timelines in medical malpractice complaints and Court cases back on track.

A partial solution and one with minimal costs, which would -at least -resolve substantial Court delays, may well have additional advantages to promote potential settlement of medical malpractice claims before they even get to Court. There is substantial utility – I suggest- in amending the New Law to provide that only cases where there is a SCML decision, or an un-appealed MLC decision are allowed to proceed before the civil and criminal courts. (NB to ensure fairness this would – I suggest- also require a commensurate change in the law to include a provision that the time taken for an appeal to be filed and decided by the SCML does not count for the purposes of calculating any statutory time bar or prescription period operating in criminal and civil Court proceedings.)

Not only would Court time not be wasted waiting for SCML decisions before proceeding to judgment but the potential litigants would see -perhaps- the most important finding (i.e. on liability) has been decided - which would remove a large- if not the largest- legal obstacle to potential settlement of civil and criminal actions. Those physicians found to have committed a medical error- or a gross medical error- causing harm/damage to a patient by an SCML may realistically assess whether it is worth incurring legal costs to defend what may be regarded as the ‘indefensible’. Of course, the Court- and Court appointed auditing/accountancy experts still have a role to play in reviewing the level of compensation to be awarded- no change there- and there will continue to be a reasonable volume of litigation. However, based upon my 25 years of litigating medical malpractice cases in UAE I reasonably envisage that this partial solution may well see a significant increase in amicable settlements of medical malpractice claims and a commensurate reduction in civil and criminal litigation in these types of cases before the UAE Courts. Not only would we see patients and their families receiving compensation faster and without incurring substantial lawyer’s fees for protracted litigation but legal defence costs -usually met by Medical Malpractice Insurance carriers -would also be minimised which may lead to reduced premiums for the benefit of the physicians and their employers.

Author: Stephen Ballantine.