Crime and punishment: Medical malpractice in the UAE

Negligence by doctors is usually the exception rather than the rule, but when such disasters happen the right systems must be in place to ensure that both the physician and the patient are treated fairly.

Medical malpractice is a delicate issue most of us would rather not think about. Everybody has read the tabloid horror stories about surgeons removing the wrong organ or, perhaps just as horrific, patients not being anaesthetised properly and feeling every ounce of pain during an operation but not being able to alert anyone.

Luckily, such scenarios are so rare that you have more chance of winning a lottery than you do of experiencing such nightmare treatment. However, medical malpractice is increasingly a problem. So just what happens when a doctor fails to meet the required standard of care – or to use the official definition, engages in the “improper, unskilled or negligent treatment of a patient”?

It is indeed a supremely complex issue. Medicine is far from a perfect science. Often, a professional will have to take a trial and error approach – eradicating one possible diagnosis at a time. But trying alternatives until you reach your goal – either diagnosis or treatment – is a very different beast to improper or negligent care, no matter how fine the line between the two might be. The official charged with investigating medical malpractice, therefore, has to be extremely skilled.

If we look to the United States as a case study, we can see that paid medical malpractice claims have been in steady decline since the early 2000s, with 15,000 paid medical malpractice claims in 2003 as compared to just 8,900 in 2014. Nevertheless, it is still a major concern for the country. According to the Journal of the American Medical Association, medical negligence was – as of 2013 – still the third leading cause of death in the US behind heart disease and cancer. An astounding statistic.

Over the pond in the United Kingdom, medical negligence cases are actually on the rise, with a 67 percent increase over the five-year period leading up to 2012. During that time there were more than 9,100 clinical claims made against the British National Health Service (NHS). In 2014, it is said a staggering ₤22.7bn was set aside by the NHS to cover such liabilities.

Now what about here in the United Arab Emirates? Well, more than 500 complaints were made in 2013; meaning that when the smaller population size is taken into account, the UAE percentage of claims is similar to the ratio in Britain. In 2015, some 13 doctors were actually suspended in the UAE. And in 2014, another nine were suspended or had their licences revoked. So the problem seems to be omnipresent around the world.

Understanding the common causes of medical malpractice

We know that malpractice is, in its crudest terms, labelled as “where a physician, when treating a patient fails to meet the required standard of care”. Now assuming that no doctor willfully looks to cut corners or provide a poor level of care, we should explore the reasons why malpractice happens. What factors contribute to the poor standard of care received by the victims of clinical negligence?

Dr. R.J. Roberts of the University of Wisconsin Medical School has carried out research that points to some key common factors in US malpractice cases. Many of the reasons outlined below are thought to be either contributing causes or the main drivers for preventable deaths in America every year:

Fatigue causing surgical errors: Regardless of how skilled or well-trained the doctor is, if he or she is physically exhausted, stressed, or mentally distracted in any way, then the chances of surgical error and therefore malpractice increase considerably.

Consent failure: If the patient is not fully informed or does not understand the expected outcomes, risks or any reasonable alternative courses of treatment available, then damage to that patient is possible.

Misdiagnosis, delay or failure to diagnose cancer: In the US, roughly 29 percent of mammogram screenings return false negative results in breast cancer patients. So it is crucial that physicians follow up appropriately on these misleading results to accurately confirm the status of the patient. Needless to say, all types of cancer should always be correctly diagnosed at the earliest opportunity with as little delay as possible.

Incorrect or negligent diagnosis of a fracture or trauma: Sometimes assumptions are made regarding an injury that are incorrect and lead to more severe consequences such as loss of a limb. Any failure to follow up suspected fractures with X-rays or diagnostic checks is inexcusable.

Medication and malpractice arising from unsuitable drug treatment: A general lack of patient education about the medications prescribed, poor advice from physicians, and even unclear handwriting from the doctor on the prescription – that is then misinterpreted by the pharmacist – can all result in medical negligence claims.

Delay in diagnosis and/or failure to consult in a timely manner: Any excessive time spent in making a referral for a specialist or a course of treatment can lead to unnecessary suffering for the patient.

Birth and maternity care: Malpractice can happen during the birth of a child (one of the most common malpractice claims in the US is the overuse of oxytocin – the hormone used to start or speed up labour in women) and also if there is a failure to ensure that another doctor is aware of the maternity patient’s clinical history – should the primary doctor be unavailable.

Although the list above is not exhaustive, it does note some repetitive areas of malpractice and their common aspects. Only when malpractice is studied more widely will the reasons it happens in the first place begin to be understood. There is clearly a gap in the knowledge just waiting for scholars to explore with quantitative and qualitative research projects.

Tackling medical malpractice in the UAE

In the UAE, victims of such sub-standard treatment can take action against their physician in three different ways. They can file a complaint with the healthcare authority, bring a civil prosecution case before the courts, and – if the result of the malpractice were serious enough – even pursue a criminal case against the doctor with the police or public prosecutor.

Any criminal action will be brought by the state prosecutor upon the individual’s behalf and the three avenues of complaint can be actioned concurrently or sequentially. In the West, malpractice cases are only usually tried in civil courts and almost always result in financial reparations to the injured party. Sometimes the case results in the doctor being struck off from the relevant medical authority and no longer able to practise medicine.

In the UAE, though, if the malpractice and resulting harm suffered are deemed serious enough to bring  a criminal prosecution, the doctor involved could find him or herself with a prison sentence. If medical negligence is found to have taken place, the doctor concerned could be incarcerated for a term of at least one year and be fined up to Dhs 10,000. These fines are payable to the authorities and are in addition to any financial compensation awarded to the victim. In 2012 for example, some Dhs 7mn was awarded to the family of a 12-year-old boy who suffered brain damage as a result of malpractice.

If the malpractice leads to permanent disability or death, then the prison sentence can be increased from one to two years. And if the cause of the malpractice was found to be due to the physician’s misuse of alcohol or narcotics, then the prison term could be increased to as much as five years.

These cases are ruled upon in the criminal courts. Said courts often refer to expert medical evidence before making judgements. The courts rely on the opinions of the Dubai Health Authority (DHA), the Dubai Healthcare City Authority (DHCR) and the Health Authority – Abu Dhabi (HAAD) in order to shape their decisions.

These three health regulators make up the ‘Healthcare Authorities’ that the courts use in such cases. It could be argued that the Healthcare Authorities have more expert knowledge at their disposal than the judicial courts and are in a better position to rule over medical malpractice cases were the offence ever decriminalised.

It is true that there is concern about the increase in malpractice cases in the UAE. The complaints received by the DHA were sufficient enough to see that the matter was raised at an Arab Health Congress in 2013. As in any profession, there will always be mistakes made. But those preventable errors in medicine have long-lasting ramifications for the casualties, and that here is the difference.

We now need a strategic framework that makes provisions for compensatory payments in the event of such disasters. It is only right too that doctors are held accountable for major derelictions of duty. But the balance between serious reprimand and draconian punishments must be struck.

As things stand, physicians in the region are increasingly concerned about the threat of criminal prosecution – a scenario that has its own problems. If doctors feel unable to do their jobs without fear of life-changing financial reprisal or imprisonment, this too could lead to further medical malpractice (with clinicians making safe-bet diagnosis calls rather than taking the difficult road to uncovering the real problem) – thus creating a self-fulfilling prophecy.

In the UK, for malpractice to be classed as a criminal act, it has to be deemed as ‘gross malpractice’. This requires an almost reckless or wilful intent to harm. Meanwhile, in South Africa there is no criminal classification for malpractice at all. In the UAE, doctors have the prospect of criminal action hanging over them at all times – like the Sword of Damocles.

Reporting of malpractice in the UAE is also sporadic at best. Medical practitioners are relied upon to reveal any issues and – rightly or wrongly – there is the perception at least that not all cases are fully reported due to the potential exposure to criminal proceedings. This again means that doctors are reluctant to put themselves at risk.

To better illustrate this, in Abu Dhabi it is mandatory to report not only all preventable medical errors but also what are classed as ‘near misses’. The onus for reporting these events is on the licensed medical facility, so there is no anonymity in these cases. Fears are prevalent that underreporting of instances of both errors and near misses is rife.

Decriminalisation is the way forward

The Medical Liability Law, which was issued on December 16 in 2008, set out a wide range of guidelines and mandates for the governing of healthcare and medical professionals in the UAE. The provisions guide healthcare services to obtain malpractice insurance, outline doctor’s responsibilities and also detail the process of investigation – and disciplinary proceedings – in the event of alleged malpractice.

The legislation has been proven to give structure and a framework to medical practice across the region. It has already produced some substantial awards to malpractice victims. However, there is hope that the UAE may at some time in the near future go further – by considering decriminalising medical malpractice. Such a move could potentially create a better balance within the healthcare system here.

There is certainly an argument that by removing the criminal aspect of malpractice cases, the issue of underreporting may be negated as doctors would no longer fear being jailed for making a genuine error – as seen in the US and UK healthcare systems. Although there are still many cases of malpractice and medical negligence in those countries, there are no doctors being imprisoned for any such errors.

While great strides have definitely been made in the UAE with legislation and governance, there may yet be dividends available from decriminalising malpractice and removing the pressure of criminal prosecution from the region’s physicians. None of us want to go through the horror of poor medical treatment. But, then again, none of us want to see the people trying to help us end up in prison or financial ruin. There is, of course, no panacea.

With that in mind, we must at least start an informed and mature debate around the issue – no matter how much we would rather avoid it. Now is the time to grasp the nettle.