Who will pick the tab for medical malpractice?

Dr M.A.M, Dubai, Mr S.J., Abu Dhabi: The proposed Medical Malpractice Bill is likely to open the floodgates of litigious claims against the medical community.

By Mustafa Barakat (Focus on Legal Issues)

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Published: Sun 8 Feb 2004, 12:53 PM

Last updated: Thu 2 Apr 2015, 1:37 PM

This will result in a hostile legal environment leading to stress, hampering the medical practitioner from practising his profession in a beneficial manner. Does the bill have any provisions to allay the fears, including the issue of increased premium that will be levied by insurers, from the medical community?

Answer: Your fears are well founded, as evidenced in developed countries, trial lawyers will happily step in where legislation or governments refuse to intervene.

Litigations will assist victims of malpractice to seek compensation for their injuries and provide a financial incentive for improving safety standards in the medical sector. At the same time, fear of litigation will encourage hospitals and doctors to achieve superior standards of excellence. One of the offshoots would be the concept of `informed consent' the practice of explaining to the patient the risks of a procedure before obtaining his or her consent to perform it.

Aspects of negligence

While preparing to anaesthise a patient before scheduled surgery, the anaesthesiologist while connecting him to the ventilator, mistakenly puts the breathing tube down his oesophagus instead of the windpipe. The surgeon fails to correct the error; the patient was deprived of oxygen for 5 to 8 minutes, suffers irreversible brain damage and dies. Take other instances, the case of a patient who was given an organ transplant of the wrong blood type, or amputation of the healthy body part.

We have come across instances were an accident victim with compound fractures of the forearm was hastily taken through tissue flap procedures which was rejected, leading to severe complications, and the patient kept under anaesthesia for 20 hours in a span of three days. In such circumstances, relatives and for that matter patients are clearly justified in seeking answers, compensation for medical negligence where extraneous considerations may have led the doctor to adopt specific medical measures.


The UAE Committee for drafting the Medical Malpractice law is well aware of the ground realities. Documented research by the Institute of Medicine indicates that in the US, between 46,000 to 99,000 Americans die because of medical errors. Medical errors kill more people each year than motor accidents, breast cancer, or Aids. Medical error is the eighth leading cause of death in America. The paucity of vital data in the UAE on the subject of medical error is an impediment to evolving adequate safety measures in the long run. So it is likely that doctors and hospitals may be required to report on errors to make the UAE health care system safer. This reporting system should be mandatory and public.


Another option to avoid litigation would be self-regulation, where doctors monitor themselves, through their own professional boards, and hospitals regulated by voluntary industry groups for accreditation. But the history of self-regulation is ineffective, and the public's confidence in the medical fraternity, governing itself on the moral principles of the Hippocratic Oath is at a low.

Lawyers’ role

Your fear of the floodgates of litigation opening is a possibility, and in the process lawsuits will threaten doctors' livelihood and their sense of independence.

Doctors will need to justify their decisions and judgment. Lawyers will continue to enable victims to seek compensation for injuries, prompting doctors and hospitals to enhance the quality of care, and the much-needed documentation. But the law is not an instrument for monitoring healthcare. Despite the shortcomings in the present law of UAE, the right to sue over medical negligence exists and needs to be protected. Who will compensate the pain, or loss of life of a person caused by medical errors? There is no alternative answer except the claims in tort against the doctor and the hospital.

Malpractice claims tends to focus on the most profitable victims, even if those areas of medical practice are not the most accident-prone. The legal assessment of the value of life is also biased towards the economically sound. Loss of wages and other income used as a basis for computing the value of life does not benefit the poor. For instance drunks, drug addicts, low income groups who are prone to accidents and sickness, are not of much interest to the lawyers. Further, the high costs of litigation in UAE will act as a deterrent to malpractice claims.


It is well within the purview of the Committee for Drafting the Medical Malpractice Law to hold hospitals and health care organisations strictly liable for patient injuries. The draft law can include ideal legal provisions to shift the responsibility from individual doctors to the institutions where they work.

Full disclosure

A medical centre in Lexington, after losing two malpractice cases paying out $1.5 million evolved a procedure of full disclosure. The centre insisted that all doctors report the mistakes to a medical committee, which would then promptly contact the affected parties. The medical centre would then offer monetary payment to their patients or families, for pain and suffering. The committee would also advise injured patients of their rights to sue in cases of malpractice or injury.

This full disclosure policy of the centre, resulted in hospital's liability payments reduced to moderate levels, litigation costs kept at a minimum, and according to Steve Kraman, the doctor who initiated the programme, `being honest defused situations' that would otherwise have lead to litigation. In the years since the Lexington centre adapted this system of full disclosure, the hospital failed to settle with only one patient, who sued the hospital and won slightly more damages that the hospital had offered.

The hospital also realised that claimants' attorneys were co-operative, and when convinced of the factual correctness of the information provided by the hospital, they were willing to negotiate a settlement.

This willingness of the lawyers to avoid litigation stemmed from the fact of full disclosure of shortcomings or sub-standard medical care provided by the hospital. The authorities and the medical fraternity could consider full disclosure a vital step in avoiding unnecessary litigation, additional costs and risks to reputation. Within the fears expressed and concerns aired, is the answer. A full disclosure programme by hospitals, would attain the desired result, for the medical community, the insurers, and most important to the patient.

Ingress, egress and regress

IF you are lost in the sea of legal jargon, we will here lend you a hand. Do you need to know the meaning of some equally puzzling legal term? Here are some definitions of legal terms, from the common to the bizarre, in simple English.

Egress: An exit, or the act of exiting. The most famous use of this word was by P.T. Barnum, who put up a large sign in his circus tent saying `This Way to the Egress.' Thinking an egress was some type of exotic bird, people eagerly went though the passage and found themselves outside the circus tent.

Ingress: An entrance, or the act of entering.

Regress: To return to an earlier or less advanced form or state.

Engross: (1) To prepare the text of a document. An engrossment is a deed prior to its execution. (2) To buy up, e.g., corn, so as to sell it at a higher price (an offence abolished in 1843).

Res ipsa loquitur: A Latin term meaning `the thing speaks for itself.' Res ipsa loquitur is a legal principle or rule of evidence that creates a presumption that a defendant acted negligently simply because a harmful accident occurred. The presumption arises only if (1) the thing that caused the accident was under the defendant's control, (2) the accident could happen only as a result of a careless act and, (3) the plaintiff's behaviour did not contribute to the accident. Lawyers often refer to this principle as res ips or res ipsa.

Res nova: A Latin term for `a new thing,' used by courts to describe an issue of law or case that has not previously been decided.

Presumption of Innocence: One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each element of the crime charged.

Justice system: A term lawyers use to describe the courts and other bureaucracies that handle the criminal legal business, including offices of various state or federal prosecutors and public defenders. Many people caught up in this system refer to it by less flattering names.

Prosecutor: A lawyer who works for the local, state or federal government to bring and litigate criminal cases.

Public Defender: A lawyer appointed by the court and paid by the state or government to represent clients who are charged with violations of criminal law and are unable to pay for their own defence.

Element (of a crime): The component parts of crimes. For example, `Robbery' is defined as: (1) the taking and carrying away; (2) of property of another; (3) by force or fear; (4) with the intent to permanently deprive the owner of the property.

Each of those four parts is an element that the prosecution must prove beyond a reasonable doubt.

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