DUBAI: The tragic news of a 42-year-old Indian woman who died during a hip replacement surgery and another Emirati woman, 24, going into a coma after a nose job in Dubai has raised several questions on what recourse patients and their families have if something goes wrong in the course of medical treatment in the UAE.
The Dubai Health Authority (DHA) is looking into a complaint filed by a Dubai expatriate whose young wife died during a hip replacement surgery at a private hospital in Dubai on May 9. Betty Rita Fernandes, 42, had a congenital issue and her hip was slightly displaced when she was born.
According to a legal expert, the UAE law is unflinching when it comes to fixing responsibility for medical negligence and malpractice.
Mohammad Al Marzooqui, lawyer at Dubai-based law firm Mohamed Al Marzooqi Advocates & Consultancy, said: “Our office receives phone calls daily from patients complaining about medical negligence, and sometimes from medical practitioners too seeking legal aid to defend medical malpractice cases and show that the treatment plan provided was according to the applied medical procedure.”
It is very important for patients to know their rights and get their cases evaluated by an attorney experienced in the medico-legal field.
He said, “The UAE is constantly making efforts to protect patients as well as doctors by revising and amending the existing Medical Liability Law, Federal Law No. 10 of 2008. In lieu of these amendments, the New Medical Liability Law 2016 was promulgated.”
According to him, “Medical errors are caused due to negligence on the part of the medical practitioner. Negligence is defined as failure to exercise the same reasonable care that would be expected from a reasonably skilled medical practitioner in the same situation. Most medical errors can be prevented by following the hospital checklist and protocols.”
He said Article 14 of the Medical Liability Law No 10 of 2008 defines malpractice as ‘an error that occurs due to the unfamiliarity of a practitioner with technical aspects which each practitioner is assumed to be familiar with, due to negligence or insufficient effort’.
Under the law, a medical error is a preventable adverse effect of care whether it is harmful to the patient or not.
“Medical errors resulting in the death of the patient can be either due to error in judgement, skill or in standard of care, delayed or wrong diagnosis, system failure, surgery error, operating on the wrong body part, error in administering medicines, anaesthesia etc,” said Al Marzooqi, noting that medical errors are now estimated to be the third leading cause of death in the west.
He said, “It is very important for patients to know their rights (see box) and get their cases evaluated by an attorney experienced in the medico-legal field. It is also equally important for the hospital management to get their cases evaluated and make an appeal in lieu of 100 per cent insurance payment for malpractice cases.”
Medical malpractice cases, he said, are different from other cases. “One needs to understand whether the injury caused to the patient is minor, major or gross to proceed with a case and seek accurate compensation. Damages or compensation that can be claimed include medical expenses, loss of income, psychological pain and suffering, loss of earning capacity etc”
He said, “After proving the existence of medical malpractice, the patient can file a lawsuit before the civil court to claim compensation for material and moral damages, since (any damage resulted by others shall be compensated by the causer) and the amount of compensation shall be estimated according to the extent of damages and disability percentage and the influence of injuries on patient’s ability to work and whether the damage is temporary or permanent.”
What action can patients take?
Victims of medical negligence or malpractice have three routes to get redressal:
■ File a complaint with the local health care authority
■ File a civil prosecution case before the courts
■ Pursue a criminal case against the doctor or health care provider with the public prosecutor
What about liability?
No doctor can be arrested or jailed until the higher medical liability commission establishes that a gross medical malpractice is committed.
■ If the malpractice and resulting harm suffered are serious enough to lead to a criminal prosecution, the doctor may face a prison term of up to a year, or a fine of up to Dh200,000 or both. These fines are payable to the authorities and are in addition to any financial compensation awarded to the victim by a civil court.
■ If the gross malpractice leads to death, then the penalty will be a prison term of up to two years, or a fine of up to Dh500,000 or both. If the cause of the malpractice is found to be due to the physician’s misuse of alcohol or narcotics, the fine could be increased to Dh1 million.
Patients should know their rights
The list of patient rights, along with a set of responsibilities, is displayed at all clinics and hospitals. Among other things, it includes the right to be treated to the highest professional standards by appropriately licensed, qualified and experienced practitioners in a properly licensed and approved facility; be involved in any decision-making about treatment and care; have communication in native language or through the services of an interpreter; have access to medical records and expect those records to be up-to-date and accurate; and receive information on how to make a complaint to the health care facility if unhappy about the lack of access to their rights, medical examination or treatment, behaviour of the staff or health care facility safety standards.
