In the UAE, the standards to be observed by medical practitioners are specifically outlined in the Medical Liability Law issued on 16 December 2008, which makes it compulsory for all institutions providing healthcare services to have malpractice insurance. The Medical Liability Law and its Regulations are wide ranging and contain provisions that apply not only to liability for medical errors, but also deal with doctors’ responsibilities, mandatory procurement of insurance, the investigation and disciplinary process in circumstances of alleged malpractice and penalties for violation of the law. In light of these recent legislative and regulatory developments, and with an increasing focus on regulation and reforms by local health authorities, there is evidence of a more litigious approach developing in the area of medical malpractice. Damages awards which have historically been low, are now on an upwards trend.
The legislative basis for medical liability claims
The doctor/patient relationship is recognised by UAE law as a
contract whereby the doctor undertakes to treat the patient and, consequently,
medical negligence claims can be brought on the grounds of breach of contract
due to the doctor failing to provide due care and attention and thereby
breaching his obligations to provide a level of service that could have been
expected at the time of contracting. Claims can also be brought under the UAE
equivalent of tort, which requires ‘acts causing harm’
to be made good, in the form of damages.
The Medical Liability Law now specifically provides that doctors
will be liable in the event they commit a “medical
error”, which in broad terms is regarded as being a deviation
from what a competent practitioner would have done in similar circumstances.
The definition of a “medical
error” is set out in article 14 of the Medical Liability Law.
Article 14 provides that a medical error “is
an error occurring due to lack of knowledge in the technical matters customary
in the profession or due to negligence or not paying due attention.”
At a most basic level the Medical Liability Law requires three
elements to be proved in order to find liability. These elements are: (a) a “medical
error” that (b) causes damage to the claimant and that (c) as
result of such damage the Claimant suffers a loss.
Under the UAE Civil Code there is also a general theory of tort
/ delict in that a person who commits a “harm” will be
responsible for the loss caused by the said “harm” whether for
personal injury or damage to property. It is therefore not uncommon to see
claimants relying on tortious / delictual principles, rather than a contractual
basis for claims or specific provisions of the Medical Liability Law, when
commencing proceedings, which would be more specific to these types of claims.
For claims based on tort / delict the preconditions to awarding compensation
are fault, damage, and a causal link between the fault and damage. UAE Courts
do not place as much weight on issues of causation as other jurisdictions do.
It is often sufficient to show that fault and damage has occurred.
Litigation culture in the UAE and the Court’s approach to
awarding damages
When assessing a Claimant’s case for loss, a court will in the
first instance award damages for material and emotional damage. The
difficulty is, however, that when assessing damages the court is not bound by
any specific formula and method of calculation. The courts are also not bound
by precedent and, in the circumstances; it is often difficult to accurately
assess a defendant’s likely exposure to an adverse finding.
Historically, the level of damages awarded has also been
influenced by the statutory Diya and Arsh levels. Diya (literally ‘blood money’)
refers to the level of damages prescribed for wrongful death; Arsh is the level
of damages (typically expressed as a percentage of Diya) which are prescribed
for bodily injury.
Damages for Diya and Arsh
are required to be based on a finding of fault usually established by way of
criminal prosecution (although in instances we have seen civil courts apply
such principles too). An individual or organisation found to be criminally
liable for the death of a person will be punished by the court ordering it to
pay Diya to the beneficiary of the deceased. The amount of the payment is
presently set by statute and is AED 200,000. Arsh is similarly payable based on
the loss of a specific body part with the amount payable for such a part being
prescribed by law. The award of Diya and Arsh ought to have no impact on the
value of damages claimed in a civil claim, but the manner in which litigation
has been conducted in the past has tended to ensure these are linked.
Unfortunately, as
judgments are not published, it is difficult to accurately gauge trends in
awards. Although larger awards are starting to be seen, from our experience the
UAE courts are still far more conservative in awarding damages than may be the
case in more developed jurisdictions. Until 2012, the largest award we were
aware of was for AED 3 million awarded by the Abu Dhabi Courts to the family of
a woman who was left in a permanent vegetative state following treatment.
In recent years regulators have taken a very strict line with
healthcare practitioners following patient complaints. The effect is that claimants
are often assisted in their court actions by the regulators already having made
a finding regarding conduct on the basis of such a patient complaint. The lack
of uncertainty regarding damages and the uncertainty connected with the
regulator’s investigations, including the outcome means that there is a greater
litigation risk here compared with other regions. On balance however, awards
here have normally been lower, when compared with other jurisdictions.
