Introduction

Mediation is a form of alternate dispute resolution that seeks to settle disputes without the cost, expense and delay of stressful Court proceedings- and in the area of medical malpractice claims in the United Arab Emirates – extended regulatory proceedings – via the Medical Liability Committee (‘MLC’) and Supreme Committee of Medical Liability (‘SCML’). For a number of reasons mediation has failed to gain any significant traction in resolving disputes in the UAE- and the wider region -despite some positive indications from other jurisdictions that it can be a valuable tool to settle medical malpractice claims.

In essence, mediation has an neutral or independent mediator helping the parties in a legal claim to try to reach an agreed settlement of the case. The mediator’s role is to help the parties reach agreement, which may involve some realistic assessments of entrenched positions or misconceptions, but, unlike a judge, a mediator cannot adjudicate or compel a settlement on the parties.

A mediation usually brings all parties together in a neutral place with the mediator- who shuttles between the parties to facilitate the negotiation process. In medical negligence claims, members of the patient’s family and clinicians from the relevant Hospital/Clinic may also attend. Each party has privacy from the other, so that they can confer privately and consider settlement offers (and other matters) that might arise during the negotiations.

The mediation process can provide something that Court proceedings cannot i.e. the opportunity for patients to express their feelings and concerns to the Hospital/Clinic/Physician either directly or indirectly. The need for patients to have their voices heard and their complaints taken seriously and acknowledged is- by all accounts- a powerful motivation for patients and their families to pursue complaints and litigation. If approached properly, mediation can offer the means to address those types of feelings/needs/concerns well away from a Courtroom – or before it is registered as a complaint with the regulator - and therefore offers the potential to remove this important/significant driver to litigate and/or file a complaint to the regulator.

Mediating Medical Negligence Claims in UK

In the UK, mediation is not mandatory but it is promoted by NHS Resolution- the organisation that deals with all medical malpractice claims against NHS Trusts, Hospitals and Physicians. The NHS Resolution’s annual report of 2022/2023 indicates that mediation has now gained considerable traction and is now regarded as a routine option for resolving medical negligence claims. According to the NHS Resolution report between 2016 to 31 March 2023 some 1,836 claims were mediated and 72% of the 229 claims which were mediated in 2022/2023 settled within 28 days of the mediation. It remains to be seen what the cost-saving was in those mediated cases where settlement was achieved. Even without doing the accounts-clearly- mediation of medical malpractice claims in UK has produced promising and significant results and the question arises- can mediation be deployed in UAE to replicate or indeed improve on the UK experience?

UAE Legal Remedies for Medical Malpractice

Just recently, the UAE enacted Federal Decree No 40 of 2023 on Mediation and Conciliation in Civil and Commercial Disputes – which came into force at the end of 2023- which provides a useful basic framework for mediation in the jurisdiction although- essentially- the agreement of the parties is mandatory and a central theme of the framework.

Clearly the UAE and UK have very different legal structures in place- although-one point of similarity is that mediation is not mandatory in both systems. Perhaps the biggest difference is that UAE requires that every civil case for medical malpractice claiming compensation must –first-be referred to and reviewed by an independent committee of medical practitioners i.e. the MLC. Legislation gives sole jurisdiction to the MLC to decide upon issues of medical error or gross medical error, causation and harm/damage. The decision of the MLC is open to appeal to the SCML and it is pretty much settled law that the findings of a final un-appealed MLC decision or the SCML decision are final and may not be challenged before any body. Moreover- and a source of additional personal worry to practitioners -is that findings of the MLC and SCML – particularly findings of gross medical error- may result in regulatory sanctions being imposed on individuals /facilities which range from warnings, significant fines and removal of licences for several months or indeed indefinitely. Typically, these fines are not covered by medical malpractice insurance and of course the physician may incur severe- and uninsured- financial hardship if he/she is unable to earn a living.

The corollary of this is that a patient with a final MLC Report or SCML Report finding medical error or serious medical error causing harm is virtually guaranteed to obtain compensation from the Courts. Similarly, where a final MLC Report or SCML Report finds no medical error- it is virtually guaranteed that the patient’s suit will be dismissed without compensation. Notwithstanding the above it is fair to say that the level of damages awarded in UK Courts are- for a variety of reasons- significantly higher than are awarded in UAE Courts.

Medical error is a crime as well as a civil wrong in UAE however the Criminal Courts will not proceed with a prosecution unless it has an adverse MLC finding and will postpone proceedings if a party files an appeal to the SCML until the SCML publishes its decision. Even in the context of Criminal proceedings the regulatory proceedings are essential and form the basis for any prosecution. If the findings of the MLC/SCML are adverse a Hospital/Physician may face a fine, suspended custodial sentence or custodial sentence. Fines are usually exempted from medical malpractice insurance coverage too.

Why Would the Parties Agree to Mediate?

When faced with a complaint, Hospitals/Physicians tend to be  more able to objectively assess whether there would be a substantial risk/exposure on liability /causation issues and – in those significant risk cases- would tend to be more likely to agree to mediation to- inter alia -remove the risk of an (uninsured) adverse regulatory sanction or a criminal conviction. Their Insurers may welcome the opportunity to save on legal costs of defending protracted Civil Court proceedings where liability /causation is hard to defend- perhaps- through all three substantive Court stages where quantum is the only real issue in dispute. I suggest that Hospitals/physicians/Underwriters would jump at the chance to take part in a process that may lead to a full and final/global settlement- so much so that they may even be willing to bear all of the costs in the face of an impecunious patient. For maximum benefit of all parties mediation would have to be offered/undertaken at the early stages of a dispute i.e. before  a complaint is filed with the MLC.

What about the patient? On the one hand, mediation- as discussed above- offers a forum to have patients��� voices  heard and an opportunity to have their pain and suffering recognised and acknowledged. It also provides an opportunity to avoid incurring substantial and unrecoverable legal costs and inherent delays in- first -the regulatory proceedings followed by the Civil Court proceedings. The vast bulk of a patient’s legal professional fees are unrecoverable although UAE law now permits claimants’ lawyers to accept ‘no win no fee’ arrangements which could restrict /limit the patient’s exposure even further. Although Court proceedings move fairly briskly there  can be lengthy delays in the SCML considering appeals from the MLC- 18 to 24 months delays are not uncommon. Mediation could lead to short circuiting a drawn- out process that can take three to five years to complete and bring a degree of closure to a patient as well as significant financial compensation that may be desperately needed.

On the other hand, there is a financial aspect that may be harder to address. It is accepted by many commentators that UAE patients tend pursue excessively high claim amounts -whereas- the Courts’ assessments /awards of damages are at much, much more modest levels. A recent review of medical malpractice judgements over a 10 -year period from the courts of the Emirates of Sharjah, Dubai and Abu Dhabi indicates that in 78% of medical malpractice cases successful plaintiffs recover not more than 15% of the amount claimed and only 10% recover not more than 50% of the claimed amounts. Exactly why patients have such excessive/unrealistic expectations is unclear but it remains to be seen whether these unrealistic expectations could be adequately and sufficiently addressed within a mediation context. This unrealistic expectation would be the single greatest obstacle to overcome if a mediation is to lead to a successful settlement and conclusion but -at the same time- it also presents the single greatest opportunity to face the patient with a long hard look at what is realistic when it comes to quantum. A skilled and experienced mediator – if he/she manages to earn the respect and trust of the patient- just might succeed in doing so.

Next Steps

Given that mediation has a cost I suspect that Underwriters will have to lead the way on this. The best Underwriters – in my experience- always explore whether a reasonable settlement is a possibility with retained counsel however settlements are few and far between by the time a case proceeds to an MLC complaint. Before that stage- the default mode of Hospitals/Physicians and- indeed – many Underwriters is ‘deny and defend’ and this is precisely the time- I suggest – that mediation if offered to a patient and undertaken. It may take some time for the industry mindset to change to a more conciliatory one but – I strongly believe- it is time for the UAE to take advantage of the mediation tool – as the UK has- to resolve medical malpractice claims faster, cheaper and better.

Author: Stephen Ballantine