The UAE courts are trying to cope with complex medical malpractice cases, increased over the past years because of a steady expansion in health services and associated equipment, that have made medical staff more vulnerable to errors.
In the absence of a definite federal law on such cases, the courts are resorting to medical and religious experts and to the articles in other laws closely linked to physical damage to establish responsibility for errors and decide on damages to victims.
\”Civil and criminal cases against physicians and their assistants have increased over the past few years for harmful acts emanating from the surgical practice and medical treatment,\”
\”The related legal principles involved are mainly based on article 42 of the UAE Civil Code which provides that \’no harm shall be done and that harm shall be made good\’.
This is also establishmed in article 282 of the UAE Civil Code which provides that \’any harm done to another shall render the actor liable to make good the harm\’.
We, FranGulf Advocates and Legal Consultants feel that courts dealing with medical malpractice in the UAE should basically differentiate between what is an unjustified act of the physician as a professional, and that of the hospital and the assistants.
It said article 343 of the UAE\’s 1987 Federal Penal Code No. 3 provides for punishment to any individual who by his fault causes injury to another person. The article also doubled the punishment if permanent disability results from the crime if it is committed as a result of the offender\’s failure to perform the duties imposed on him by the principles of his function, profession or craft.
\”The main aspects of these harmful acts are reflected in negligence, recklessness, not taking care or precaution and also in non-compliance with the laws and the related regulations.”
\”The type of harmful acts are mainly either a material fault dealing with the required care that the physician should take to avoid unlawful consequences or a technical fault that emanates from violation of the physician to the scientific and technical rules laid down in accordance with the normal rules and criteria for practicing the profession.\”
The jurists are faced with the task of distinguishing between gross technical faults for which a physician is responsible and minor technical faults for which he is not responsible, and accordingly trying to establish that it is mainly established on gross faults.
\”It has been an established principle laid down in many court of laws in the region that the physician shall not be held responsible for his minor faults but only for his gross fault and not for the technical failures in diagnosis and treatment except in cases of deceit and gross failures,\”.
The court should also differentiate between negligence on one part and force majuere on the other. The main element of difference between the two is that in negligence there exists the possibility of expecting the result while in force majuere the result is not expected. We should also differentiate between negligence of the physician and that of the hospital.\”
The study said the damage caused by doctors or their assistant to a patient could be material or moral and that both damages allow compensation under the UAE law. Judges face another complex problem by deciding on the size of compensation.
\”A judgment for compensation should be based on material damages constituting violation to a lawful interest and that the damage is definite and not possible whereas the moral damage is the one that affects a person in this feelings, sentiments and dignity including pain and suffering from losing loved ones,\”
\”On the other hand, the existence of a damage to the patient and establishing a fault on part of the physician are not enough to establish the responsibility but there must exist a direct relationship between the wrongdoing and the damage. This is what is being termed in law as being the reasoning element of responsibility.
\”It is quite hard and rather complicated to establish this reasoning criteria in the medical profession since it needs to establish very clearly that the fault of the physician was the cause for the damage which the patient has sustained and that there has been no interference of any foreign element in this respect.\”
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