Tim Elliot
Welcome to LAWgical the UAE first and only real legal podcast. My name is Tim Elliot LAWgical comes to you from the Dubai -based legal firm HPL, Yamalova and Plewka As is always the case, she is the managing partner Ludmila Yamalova Nice to see you. Great to see you too, Tim. And I like your qualifications on the status of our podcast because there seem to be a lot of eager beavers these days.
coming up with new legal podcasts, but as you rightfully said, we were the first. Yeah. For the longest time only, and perhaps still to this day, I would argue perhaps only regular podcasters. Actually, let’s get this out in the open now, because I always kind of think it’s really the only legal podcast, and I look at podcasts a lot, and the legal ones, I see them pop up every now and again on the odd topic from other firms. But I…
I kind of think we’re the only people in the UAE doing this every week. Week in, week out, week in, week in. Indeed, and how many years into it now, too? Two and a half, yeah, two and a half years in. Exactly, and I think as you earlier said today, we’re probably close to 200 podcasts that we have produced already. Something like that, yeah, yeah, yeah. On pretty much anything that you can think of here in the Emirates today. And yet we think of more topics, and here we are. Another topic we have not really quite touched on yet. I’m getting to the point where I think…
Will you not leave me alone? No. But it hasn’t happened yet. Today’s though is a good one and it’s kind of something quite personal to me and I might share some experience with you in a while if you’re really unlucky but we’re going to talk about medical malpractice and I want to start with how do you
define it? How do you define a medical malpractice and take that form?
Ludmila Yamalova
Well, I guess malpractice is usually, and this is not just UAE specific, but usually means something that results or stems from negligence. Now, in the UAE, negligence is considered to be so in any of these events, such as extreme ignorance of the recognized medical principles, following a method or I guess,
failing to follow a method that is medically recognized or otherwise following a method that’s not medically recognized, or unjustified deviation from the medical rules and code of practice, or the physician being under the influence of anesthesia or psychotropic substance. Number five is gross negligence or lack of clear vigilance in following the standard medical procedure.
For example, leaving tools in the patient’s body, overdosing the patient on medicine, and failure to switch on medical equipment during or after performing the surgery. So these are some of the criteria for a major medical malpractice as per the UAE regulations. And they’re fairly specific, but perhaps not uncommon or not unexpected, and perhaps not…
Tim Elliot
to dissimilar from how negligence of medical malpractice would be deemed or considered or defined in other jurisdictions. Okay, so in the Emirates, how would you report what you believe to be an incident of one of those or a number of those things you’ve just mentioned, a case of medical malpractice? Yeah, so as…
Ludmila Yamalova
we alluded to earlier, it’s one topic we had not previously covered and perhaps would haven’t covered because it’s so emotionally taxing and psychologically difficult and challenging to truly, perhaps less so discuss in terms of just theoretical legal terms, but much more difficult to discuss in actual real life example terms. And we have recently had a few, and over the years I’ve had a number of medical malpractice.
questions here and there, but it’s always been one that sort of I’ve observed more from a distance and kind of advise at a high level. But we recently had a little closer to perhaps to our practice examples and clients with rather tragic and devastating incidents. And so basically this is why we’re talking about it right now. And then
it’s, I guess perhaps in figuring out or in starting out in terms of how do you report medical malpractice, what’s the recourse. One good place to start with is sort of the legislative framework. What do we have in terms of laws and regulations to rely on for medical malpractice? And that’s also one of the reasons why in the past we haven’t really…
touched upon it so much because it wasn’t so clear to us in terms of their legislative authorities how to most effectively perhaps represent patients or victims that were on the wrong side of these sort of medical procedures. So perhaps to start with in terms of the laws or the authorities, we can go through the list.
So in chronological terms, I guess there’s the federal, so and that was for the longest time, this was perhaps the main law that existed that was less specific to medical malpractice and more general and had to do with more like civil liability. And that was the federal law number one of 1987, and that’s the law on civil transactions and civil code. And in particular, there’s an article 292.
that set out compensation for, in cases where there’s some sort of harm that was suffered by a victim. And it talked more about the basis for calculations and the loss of profit and that would ultimately stem from a harmful act. But it was perhaps as specific as that. There was no mention of medical malpractice or impairment to physical.
being as a result of some kind of medical wrongdoing. So that was what was on the books in short, kind of the most, that was that, that this civil transactions loss of 1987 until 2016. So quite some time had passed, 2016 is really not that far back, it’s only, what is it, nine years back.
So, and it’s federal number four, so it is federal law, by the way, it’s not just specific to one Emirate, it’s the UAE federal law number four of 2016 regarding medical liability. So this perhaps is one of the first specifically related laws in connection with medical malpractice and medical liability. And then since then there were a few other ones. There was a…
a federal law number five, 2019, regulating the practice of the medical profession. And then there was the cabinet decision number 40 of 2019 regarding executive regulations to the previous law from 2016 regarding medical liability. And then most recently, there is the new federal law number 31 of 2021.
regarding the issuance of crimes and punishment law that in this particular case has more specific terms related to medical malpractice. So this is just kind of a high level overview of the legislative framework that is now available for all the particular victims to rely on in cases of alleged medical malpractice. Now going back to your earlier question Tim in terms of, okay, so what’s the recourse of what?
What are the tools that are available to all those who have suffered from medical malpractice? And where do you begin and what to expect? So number one, it’s basically reporting with the relevant health authority or a ministry of health. Now, there is the ministry of health and the health authority can be two separate authorities because there’s the UAE Ministry of Health, which is the federal ministry of health. And then there’s every emirate has its own.
for the most part, its own health authority. So let’s say in Dubai, it’s a Dubai health authority. So you would start with, for example, you’re a victim or you’re a family member of a victim. So that where you would report is basically a complaint regarding the medical malpractice that you would lodge with the Dubai health authority if it’s in Dubai or the Ministry of Health. And then…
Once a complaint is registered, it’s being investigated by a committee of seven to nine doctors. So this is quite important because it’s a committee of actual doctors. So it’s not just a bureaucrats or administrative representatives of the authority. It’s in fact seven or to nine doctors that are specifically registered with this health authority to be part of the committee.
So and then in its investigation the health authority will among other things obviously question the doctors and the medical practitioners that were involved in the specific procedure that was stems from the complaint. So it’s not just the doctor himself or herself. It’s the whole staff at the relevant time and there and we use the relevant medical tests and reports with with in connection with a procedure ultimately.
And that’s in addition to the complaint itself and the documents and the allegations and the statements that will be made in the complaint by either the victim or the victim’s representatives. So that’s basically, that’s the starting point for alleging or complaining about particular medical malpractice. And that perhaps is in terms of the legal recourse with the legal…
tools that are available so one we discussed or talked about it all the high level just the legal framework and that’s the laws that would you be citing potentially in claiming compensation or reprieve sort of reprimand against the particular doctor for committed committing alleged medical malpractice and now in terms of the specific legal forums through which you would complain.
One, as we started discussing, is this through the Ministry of Health or the health authority, the particular health authority. And that would ultimately lead to, for example, if there is a finding, a conclusion of fault, it will lead to administrative penalties. And as part of these administrative penalties, there could be, in addition to the penalty or fine itself, there could be a written warning.
There could be suspension of a license or revocation of a license altogether and fine for anything from a thousand dirhams to one million dirhams. So that’s the first recourse, let’s say, is a complaint with the Ministry of Health or the Health Authority that is reviewed by a panel of doctors and the conclusions of which can ultimately lead to a
to these kinds of repercussions to the doctor. Suspension or cancellation of license and or application are fine. And we can drill down through that particular process a little later, but just to kind of set the stage for the tool. So the first is administrative tool. We can call it a regulatory tool. And that’s the regulatory complaint. The second one is a criminal complaint. So that’s the other option. And that is basically you go and you apply, you file a complaint with the police.
with the prosecution. And in fact, the prosecution has a specific service to complain about medical malpractice. That’s by the way, fairly new as well. Because generally when you file a complaint with, with criminal complaint, sort of the, the classical initiation of the process, you go to the police station and you make a complaint at the police station. Well, the police obviously, the…
This is perhaps a little more involved as a type of crime to involve them or be complex to necessarily just go to the police station. So as a result, the prosecution now you can go directly to the prosecution. The prosecution now has made this service available, specific service on their website where you can file a medical malpractice claim with prosecution directly and then you will submit all the documents online. So that’s, it’s a little easier.
I think in terms of procedurally and practically to file this complaint, then going to the police station, particularly if you are the family of a victim and you’re not based here. So that’s the second one. And as part of this, I’m going to drill down a little more in terms of what to expect, but the criminal complaint ultimately leads to the punishment of the individual, of a doctor or a medical practitioner.
And criminal complaint, just to by way of reminder, by virtue of it being criminal, it’s not the parties to the complaint or to the case are not the victim or victim’s representative and the doctor, let’s say the medical practitioner, but rather it’s the state, i .e. the UAE state or the government against the medical practitioner. That’s the definition of a criminal complaint. So here the victim would be represented by the government.
And it’s the government that would be arguing the case. And the reason that’s, and that’s for this, I guess for this process is that anything to do with criminal, the premise is that it’s in the interest of the state. It’s in the interest of the people and it’s public interest. So therefore it has to be, it has to be adjudicated and has to be argued by those who represent the people, i .e. the government in this particular case. So.
So, and as a result, what you could expect, the results of this decision or court case would not be compensation to the victim because the party here is not being represented, is not their direct party claiming compensation, but rather punishment of the perpetrator. So that’s the idea of a criminal justice system in general. So it’s not…
It’s not compensation to the victim, but it’s rather punishment of the perpetrator in the interest of protecting the community or the people or in the interest of the public interest. So that’s the framework of criminal complaints and the criminal justice. So here, there are four, what you could expect if it’s the victim or the victim’s representatives by filing a criminal complaint, it’s important to keep that in mind because that’s all you can expect. You just expect.
a judgment against, let’s say, the doctor, the medical practitioner that might lead to a fine and that’s it, or it might lead to a jail sentence, or we could talk about it a little more later, or it might lead to, ultimately, deportation. But you, as a victim, you won’t really get much from it directly. Then the third option, so remember, the first one is the regulatory slash administrative.
The second is criminal and the third option and in particular, if you have proof of, let’s say either you have a criminal decision in the favor or against the perpetrator and or also the report, the conclusion from the health authority committee that there was either negligence conducted or there was some kind of a criminal intent.
So if you have either one of those, either criminal decision or report from the authorities of those negligence, then you can also file a civil case. A civil case where in this case you can claim compensation. And so this is why if you have a new file, a civil case, you can always file a civil case, but it’s just how do you prove that if you file a civil case without the either a criminal…
decision or a report from the health authority, then your burden of proof is quite high because what you’re trying to prove is two things. One is that there was a fault that happened. And then two, that fault resulted in specific damages that relate directly to that fault and therefore your claim of compensation is substantiated. So, and, but, but.
Proving fault is very difficult, especially in cases like this, because they’re quite sophisticated. We’re talking about medical malpractice. Who am I, as let’s say a high school teacher, to say that that particular doctor who’s gone for dozens, a dozen a year, spent the university studying medicine and then another 20 years practicing medicine, that they committed a mistake. And then even if for the court to even hire an expert witness is…
for the time being in the UAE, expert witnesses are not of this sort of, don’t have this kind of expertise. So it really would be more appropriate to bring a report from either the Ministry of Health or for example, if you have a criminal decision against the doctor that will ultimately establish criminality of the action. So you already have proof that fault happened. So basically, therefore in order of chronology and priority, if you…
If you have a complaint, a legitimate complaint for medical malpractice, that’s what you would do. You would first file a complaint with the Ministry of Health or the health authority and that would be reviewed by peers and doctors. And then they would have a conclusion. If there’s a conclusion of negligence, then you either would file next a criminal complaint with the prosecution.
Or you can actually switch the order. You can also file a complaint with the prosecution right away. Because let’s say you’re afraid that that doctor might commit more medical malpractice. And so there is a chance for the prosecution to get involved even before the committee of doctors renders its decision. And then once you have that report from the Ministry of Health and or criminal report, then you can file a civil case and you can assert or…
your case and then ultimately ask for compensation, substantiating what damages you have suffered as a result of that medical malpractice. So here I’ll take a step back now because just to recap, we’ve got legislative framework, there’s a number of laws starting from 1987, but really more specific from 2016 and then with some new amendments or add -ons 2019 and most recently in 2021 that all of which in one way or another would
come in handy to make your legal arguments. And these are the laws on which you’d be relying to claim that, for example, fault happened or some mistake. And then in terms of the forums, you would approach just by recap and you’d be relying on these laws all throughout, including for definition, for example, of medical malpractice, right, and negligence, which would come from these laws. And that would be the Ministry of Health and or police prosecution.
and then civil courts. It’s such a hard thing to prove negligence though, isn’t it? Because as you say, this is a highly technical area. People heal at different rates. There may be underlying conditions that affect specific outcomes. It’s very, very hard to prove negligence. Absolutely. And I have to tell you, we’ve had these internal debates even here recently because we have a client that…
tragically, I mean, did suffer the ultimate, the ultimate grief and that is a death of a family member, which they allege happened as a result of doctor’s negligence or medical malpractice. So this is, I guess, as bad as it gets is to lose a loved one. And there’s a lot of, at this point already, there’s some kind of discussion about the doctor, you know, in this particular case,
They’re accusing the doctor of not using certain machines, for example, to monitor the heart. And therefore, that was medical malpractice. And it’s a complicated discussion, as you, Rachel, said, Tim, because there’s a question, is this a job of that doctor, of that surgeon, to make sure that the machine was used to, after the surgery, to check, let’s say, the heartbeat or the regularity of…
of whatever the blood flow, for example, is it actually the requirement for the doctor, for the surgeon, for the performing surgeon to do that, or for a team of somebody else on the team? Because let’s be realistic and let’s not forget that these days, in particular in a place like Dubai, in any one of these procedures has a whole team of staff, right? We’re not somewhere in rural, you know, certain country in a kind of…
Africa, for example, a small village where all the doctor has is just the doctor and his or her tools. Here we have whole staff, a team of staff supporting the doctor and each one of them have different requirements and obligations to ultimately kind of work together and check on each other. And I don’t know, this is not my area of expertise, but in stretch of imagination, but I would, I would question whether it was actually a requirement in this particular client’s case, the requirement or the obligation of this performing surgeon.
to check after the surgery that the machine was, that the right machine was used to check basically the results of their recovery. Because that kind of in this case is the accusation. So, and so there becomes a very subjective and a very complex query. Was this not using this machine? Was this medical, was it actual negligence, serious negligence? If it is negligence, is it gross negligence or just mild negligence?
And also, equal as so, whether this was an obligation of the performing surgeon, because another school of thought is like, well, the surgeon, by the very definition, the job of the surgeon begins and kind of ends upon conducting the surgery. And then after the surgery, there could be a different protocol that’s in place for other doctors and nurses and medical staff to be following up on the patient. So I’m just using this as an example to answer.
or not to have so much answer, but perhaps to shed some more light on this question, as you pointed out, how do you prove fault?
Ludmila Yamalova
So in this case, so it just, but there are certain, there are some guidelines and some framework that is relied on to investigate these reports and these incidents. And as I mentioned, so in Dubai, for example, it’s a committee of doctors seven to.
nine doctors. So that’s a pretty serious, I would say, committee. And you have to assume that these are doctors that would kind of, at least some of these doctors that would be in the sphere have that sort of similar medical sphere and can actually speak knowledgeably and understand the dynamics of circumstances that would have taken place during the surgery. Did these have qualified doctors? Experienced doctors actually would be able to render this decision.
And then there’s some of the questions that the doctors also then have to review, whether there’s a specific medical practitioners where you follow a specific procedure and whether the medical tests were, the right medical tests were used to rely on in conducting the surgery. And then depending on, let’s say if they file,
If they find fault, or once they’ve reviewed all of the evidence, they have choice to decide. There could be finding of no fault, i .e. no medical malpractice, or there could be finding of small fault, or minor medical malpractice, or there could be major medical malpractice. So these are also the three scenarios, which is important to keep in mind, that just because somebody died or surgery did not…
work out well, has some complications, does not mean that there was negligence. So these same doctors can come up with their finding that there was no malpractice committed at all. But in general, a medical error is considered a major medical malpractice if it causes, for example, the death of the patient or infant or accidental removal of an organ. Yeah, I guess that is one of the categories.
or loss of an organ function or any other gross damage. So you see there’s so many layers to this sort of investigation. But there are so many layers within that. I mean, my personal experience is cancer, which I’m now all clear of. But the radiotherapy I had, well, thank you, but the radiotherapy I had has led to failure of my left kidney. So that doesn’t work. At some point it’s going to be taken out, I guess.
But that’s not a malpractice. That’s interesting because you know, one of the categories of a medical error is we just, as I just read out is a loss of an organ function, which is your example. But you know, that’s not due to, you know, a surgeon nicking a kidney during an operation. That’s due to radiotherapy and the scarring. The side effect. The side effect of that therapy. And that’s, that’s a risk that you take when you go through that treatment and we all react in different ways. And clearly that site.
you know, my body reacted in that way in that site. So it’s not, again, there are so many gray areas. For sure. And this is exactly why it’s important that we’re discussing this. And the laws are drafted to allow for these kinds of consequences. These layers, the multiple layers exist for that very reason, just because.
somebody lost a function of an organ does not mean there’s medical malpractice, as you said, and just because somebody dies as well, it doesn’t mean that medical malpractice was committed. I mean, and to be honest with you, this is why, just a bit of a side note, in the US, doctors are so incredibly expensive and surgeons and so on, surgery is so incredibly expensive because of the malpractice insurance. And that’s exactly for that reason, because when…
Yeah, the liability on doctors is immense. I mean, you know, whenever you have a complication, medical complications requires intervention by doctors. There’s always risk. There’s always risk. And so if doctors were always punished when the patient suffers, for example, failure of an organ as a side of a side effect or removal of an organ altogether, because again, there’s a necessary removal or an ultimate death, then…
would have no doctors, nobody would want to be a doctor. And this is why the legal system has evolved and continues to evolve with that in mind. And in certain countries, it’s a lot easier to file a medical malpractice claim and then claim compensation for all sorts of trouble damages, the US being a specific example of that, which puts the fear of God in a lot of doctors. They just, they don’t really want to practice because anything goes wrong.
Yeah, their personal lives is on the hook. So that’s why it is a question of balance and it’s a matter of balance and it’s important to have this balance and to have balance. It’s very important to have clear mandates and limitations and structure in place in terms of what would qualify as medical malpractice. And then even then, is it minor medical malpractice or is it major? And then, and also what are the sort of the repercussions that would follow from that?
So, because every time, let’s say, even if there’s a gross medical practice, I mean, does that mean the doctor goes to jail? It’s, you know, there’s also a lot of questions that stem from this very, very complex area. But so in the UAE, there is after that first investigation by the committee, the first committee, let’s say the committee could issue any one of the decisions either or either there was no medical practice whatsoever.
or there was medical malpractice but either was minor or major. So then this particular decision can be appealed and can be appealed by either side, either by the doctor or the medical practitioner or by the patient or patient’s representative. By the way, also don’t forget that it may just be the complaint could also be not just against a doctor, but it could also be against the medical facility itself. Because it could be like in this particular case, it could be there was a
It’s not just a matter or a doing or not doing of one particular doctor, but it could be sort of a failure, a systematic failure that should have been managed and enforced perhaps by the hospital system or facility. So for example, making sure that there’s a nurse that’s checking, that there is an anesthesiologist that’s there on site monitoring the blood.
pressure and whatever it is that they do in medical terms. So there’s a whole ecosystem, so to speak. There is a whole protocol that must be followed. And that protocol, it’s not the job of the performing surgeon to make sure the protocol is followed, but rather of the hospital or facility, the medical facility. So the complaint can be filed, in fact, against the medical facility or against several practitioners and, or still practitioners and medical facility. So,
So then once the report, once the investigation takes place and the report is issued, then it can be appealed to what’s called the Supreme Medical Liability Committee in the UAE within 30 days of the issuance. And then it can be, and that committee can either confirm or overturn the lower committee’s decision. And the ruling of the Supreme Committee must be fairly specific in its opinions and decisions. So it’s…
cannot just be we confirm or we overturn, it needs to provide very specific reasoning as to why they confirm or overturn the lower committee’s decision. And then the Supreme Committee’s decision is final and non -appealable. So that’s kind of, that’s perhaps the starting point for all the other steps. So after that, you have, if there is, let’s say the decision of the committee is that there is medical malpractice,
And then there’s several recourses I talked about earlier, the venues. And that is one is the criminal penalties, and the other one is administrative penalties, and third is the civil. So the criminal, that’s criminal, there’s interesting. So criminal penalties for medical malpractice can be either financial and or basically result of freedom, freedom of movement.
So, for example, as per the 2016 federal medical liability law, here is the possible punishment. And this is again, this is criminal law, right? So this is under criminal law. So if it’s gross medical error, there is a fine of 200 ,000 dirhams and imprisonment for one year. So again, gross medical error, a fine of 200 ,000 dirhams and imprisonment from one year.
And if it’s gross medical error that’s causing death, then the fine is 500 ,000 dirhams and then two years in jail. So taking this and kind of going back to my earlier point about the structure of the criminal complaint is that this money we’re talking about the fine of 200 ,000 dirhams or 500 ,000 dirhams does not go to the victim or the victim’s family.
but rather to the government. And that’s the idea here is that the government is overseeing and making sure that the public is properly protected. And this is the fine that is paid to the government for committing a crime. So, and then the imprisonment, okay, the doctor, the medical practitioner goes to jail, but the family does not really benefit from it financially, other than perhaps psychologically, emotionally, knowing that this person who caused this harm to them or to their family member is being reprimanded and punished.
So that’s the criminal penalty. And then the administrative penalty is the, and that’s violating, again, this 2019 federal law regarding practice of the medical profession. So it’s governed, this administrative penalty stems in particular from the 2019 law that sets out regulations specifically for medical professionals and the penalties and punishment that can result from violating these regulations.
is that the penalties can include, among other things, written warning, because remember if there’s a minor medical malpractice, it could just be a matter of written warning, or suspension of a license. Again, if it’s minor, it would be suspension of a license, or it can be revocation of a license altogether, and or a fine of anything between a thousand dirhams to one million dirhams. So again, this fine would be…
not money going to the victim, but a fine that would money that these were paid to the medical system or the government, but not directly to the victim. But ultimately, the administrative penalty can result in the worst of cases, perhaps for the doctor or the medical practitioner and the best of cases for the victim, and would be the revocation of a license, medical license altogether, and also a fine of up to a million dirhams.
Then we going into the civil liability and the civil liability is now that you have, let’s say a fine finding, either criminal finding, right? Of fault. And by the way, criminal finding, I mean, what could be the criminal finding? Let’s say it could be that the doctor did this on purpose. There is a criminal intent, right? And it could be that somebody either did it on purpose or for example, this medical practitioner was not a licensed medical practitioner altogether. And they performed either.
without the license or without a proper license. You could be a veterinarian performing plastic surgery, just because you’ve had some sort of medical experience does not make you a qualified practitioner for performing that kind of surgery. So there has to be a specific license and proper license. So that would be a criminal, a case of a criminal matter. And that’s because somebody is obviously either defrauding.
Patients and claiming that he or she is either doctor or qualified to do a procedure that in fact they’re not qualified or they don’t have the proper licenses in place or for example, somebody is doing it on purpose So or you know, there could also be somebody who is performing medical procedure against the laws You know, there are certain things that doctors are not or medical positions are not allowed to do for example do certain administering certain drugs or administering certain procedures. So also there could be
There could be sort of criminal liability that would stem from that, which is different from the medical liability. So then going back to the civil liability, so either you have, in either case, either you have the criminal or proof of criminal liability, i .e. criminal fault, or medical liability, that is the medical practice of gross negligence. Then…
or you may have even both, then you can file a civil case and the civil case is where you would be claiming compensation for the damages suffered. Now, this is very important because this is in the UAE for the time being, this particular area of law is very different from what perhaps some would expect, maybe perhaps a little less in Europe, but certainly in the US.
and that is the penalties or the damages that the victim or the victim’s family could reasonably expect to have awarded by the court. So in the US, for example, we have this concept that’s called treble damages. And the idea is that whatever the damage is, the actual damages, you can triple them. And the idea here is that they’re kind of punitive. So it’s not only that the doctor should be slapped in the hand or have to pay this fine of, let’s say, $150 ,000, which for a doctor may not be so much money.
but also they need to be deterred from committing this again. So this is kind of the idea of punitive damages. In the UAE, we don’t have that principle for now. There’s no principle of punitive damages. One and two, the way in the UAE that’s a damage or compensation is assessed that relates to specific harm or specific damage is very different from how it’s assessed, for example, in the US and perhaps in many other jurisdictions.
So it’s in the US and I’ll tell you from personal and professional experience, there’s very, very qualified or specific experts that are appointed, different types of experts, not just the medical experts, but also those who would assess you, what does it mean for this, for example, victim to now live with this condition for the rest of their lives? So there’s financial experts and there’s medical experts, because you could have a physical sort of therapy that you need to be doing for the rest of your life. There could also be emotional and psychological therapy that you need to be doing. So that’s an additional expense.
And based on this person’s, for example, background, you can also kind of estimate how much they would have earned if it wasn’t for this incident. So it’s a very, very complex exercise and there are different experts that are involved in different calculations, very complex calculations are basically taking this person’s life and assessing the loss of their potential income earning and loss of.
quality of life and adding a price tag to that. So in the UAE, that’s not provided for by law or by jurisprudence yet for the time being. So therefore it’s very important for all those who are assessing to file a case, a civil case in particular for medical malpractice, must know this in mind, must keep this in mind and must know this before they dive in.
Tim Elliot
and want to sue the hospital facility or the doctors for this. Though, as I say that, there’s one more, perhaps, recourse, and that’s insurance, and that’s the doctor’s insurance, right?
Ludmila Yamalova
So they might be, it might be that if you make a claim, it might be that the doctors and medical professionals or even the hospital’s insurance would just pay out a sum, kind of a claim sum. But in terms of the legal system, the courts don’t really, I mean, so they, first of all, they look for very specific,
proof of what it is of actual damages that have been suffered. And actual damages, by definition, exclude future damages because they have not happened yet. So in other words, the limits of compensation are pretty strict. And so just to give you a few examples, so these come from specific cases that we have seen in the UAE, for example, from a civil court.
The court awarded a claim in 70 ,000 dirhams, that’s perhaps about $18 ,000, when she claimed two million dirhams. So she claimed two million, which is about $700 ,000, and the court instead awarded her $18 ,000. And that’s for the damage that she suffered as a result of liposuction. So that’s an actual case, right? So then there was another case example, and that is the court awarded a
claimant 300 ,000 dirhams, which is about, let’s say, $80 ,000 from a doctor and the medical center for eye surgery that caused him to lose his eyesight and require more medical attention and care. So here, basically, the patient lost eyesight and the civil compensation was about $80 ,000 or 300 ,000 dirhams.
So that’s important to keep in mind because I mean, these are some examples of what you could expect of to receive from the court. And that’s after obviously having gone through all the other previous steps of reporting the medical malpractice and then hiring lawyers and arguing this in court. And in the UAE, you have three stages of the court process, the court of first instance, court of appeal, and then court of cassation. So ultimately in most of these cases, perhaps,
travel through all three stages, all the way to the Court of Cassation. So as a victim or the victim’s representative, you have to expect to argue these three different stages. And then with the ultimate, ultimate compensation would be, I mean, I guess the most we have seen so far is about $150 ,000 for including death. So, and then interesting for, from the criminal side of things, a few specific.
court examples. So in one case, a criminal case, the court ordered 20 ,000 dirhams fine. Remember, it’s a fine. It’s not a compensation or payment to the family, but it’s a fine on two doctors for having put a blow dryer under a patient’s blanket because she said she was feeling cold after a C -section. And then the blow dryer led to severe burns in the patient. So that’s an example, one example. The second example, again, of a criminal case.
where the criminal court ordered imprisonment for jail sentence of a doctor for one year and then deportation after that and a fine of $300 ,000, which is $80 ,000, for medical malpractice. And that was the result of a cosmetic nose surgery that led the patient to suffer from all of her bodily functions and put her in a vegetative state. So this is just a criminal complaint.
So, so there are basically some specific examples of what one can expect in the UAE. So certainly in terms of legislative authorities, they’re there and they are continuing to develop and evolve in terms of the forums through which to lodge complaints and files. They’re also there and they’re more than one. Just to recap, you’ve got the administrative penalties, such as revocation of license, or you have criminals such as imprisonment and fines.
and then you have civil, and that’s compensation, but you also have potential insurance claim so that you can go after the doctor and then claim away from the civil courts, but directly to the insurance sometimes that can also work. So the law is there, the practice is there, the jurisprudence is already in place, but in terms of what victims can expect in terms of financial recourse and compensation, it’s much perhaps, comparatively speaking, it’s much…
more moderate than one would expect in different jurisdictions, such as the U S and that’s why it’s important to keep this in mind for all those who are thinking of potentially, going with their own guns blazing and filing cases, left right and center, for, for allegations of medical malpractice. So kind of wait, and that’s not to say not to, but it’s just that you want to measure your investment, financial investment, investment in emotional and psychological investment, knowing the sort of the ultimate.
Ludmila Yamalova
That’s another episode of LAWgical , this time Medical Malpractice. Our legal expert as always Ludmila Yamalova managing partner here at HPL Yamalova and Plewka and as always thank you for your expertise. Thank you Tim. Find us at LYlaw social media, Facebook, Instagram, TikTok, LinkedIn. Our ever growing huge library of hundreds of podcasts is available. All kinds of legal matters covered and all free to listen to.
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