A Guide to Laws on Medical Negligence in the Middle East
Since the middle of the twentieth century, the medical profession has demonstrated an increase in the incidence and severity of medical liability lawsuits. Some are of the opinion that the rise in litigation is useful as learning from errors makes healthcare safer for the community and aids in holding physicians accountable for their actions. The opponents, however, believe that litigation is unnecessary to maintain health standards, asserting that nothing could be more damaging to the future of medical care than the suggestion that patients sue their doctors. Medicine, unlike other professions, relies on humans (physicians), rather than machines, to make complicated decisions that may have potentially severe and lifelong consequences. Adverse outcomes are often an inherent risk of medical care and do not necessarily reflect poor treatment. How is medical malpractice dealt with in the following Gulf countries?
Health Care Services in Saudi Arabia has shown a great evolution over the past two decades in both governmental and private sectors. This development in health care was the result of the upgraded technology at the facilities as well as the training and improved experience of the medical practitioners. However, the increasing number of the population, together with the increased awareness about health matters resulted in a growing trend of medical practice litigations. In Saudi Arabia, the number of medical malpractice complaints filed against medical practitioners increased by 37%, from 2,002 complaints in 2011 to 3,178 complaints in 2016.
The legal system of Saudi Arabia is based on the principles of Sharia law. The Higher court decisions in Saudi Arabia are not binding but are persuasive. The Sharia Medical Panel (SMP) considers medical malpractice claims in Saudi Arabia. The Law of Practicing Healthcare Professions (2005) ("The 2005 Law") lays down for professional liabilities. Article 34 of the 2005 Law sets out that the SMP shall have the following jurisdictions:
- In considering the claims of medical malpractice cases brought before it regarding private rights ("diyah", indemnity or compensation.)
- In considering cases of medical malpractice leading to death, damage or loss of total or partial use of an organ, even in the absence of a claim for a private right.
Article 27 of the 2005 Law deals with Civil Liability and states that any healthcare professional who is committing malpractice, causing harm to a patient shall be held liable for indemnification. The SMP shall determine the amount of such indemnification. The following shall be deemed as malpractice:
- Error in treatment or inadequate follow-up.
- Lack of skills and knowledge that can be expected from others in a similar profession.
- Performing unprecedented and experimental surgery, in violation of the relevant rules.
- Conducting scientifically unestablished research or experiments on patients.
- Administering medications to patients on an experimental basis.
- Using medical equipment or instruments without adequate knowledge of its use, or failing to take any appropriate precautions to prevent the damage arising from such use.
- Failure in providing adequate monitoring or supervision.
- Failure to consult of whom the consultation is necessitated by the condition of a patient.
The provision limiting the liability of a healthcare professional or holding him accountable shall be deemed invalid.
Article 28 of the 2005 Law deals with Criminal Liability and states that any person committing any of the following:
- Practicing healthcare without a license;
- Providing false information or using unlawful means to obtain a license to practice healthcare;
- Using means of advertising leading the public to believe in his eligibility to practice healthcare, contrary to fact;
- Unlawfully claiming a title associated with healthcare professionals;
- Possessing equipment or instruments usually used in the practice of healthcare professions without having a license to practice such professions or a legitimate reason for such possession;
- Unjustifiably declining to treat a patient;
- Trading in human organs or performing human organ transplant knowing that the organ in question has been obtained by means of trade;
shall be subject to imprisonment for a period not exceeding six months and a fine not exceeding SAR 100,000, or either punishment.
The SMPs were given the authority to apply disciplinary liability on practitioners who violate ethical standards as indicated in Articles 31 and 32 of the 2005 Law. Disciplinary actions can start with a warning letter, to a fine, not exceeding SAR 10,000, reaching to the revocation of the license to practice as a health care professional. In case the license is revoked, reapplication for a new license cannot be filed before the lapse of two years from the date of revocation.
The SMP headed by a judge includes three physicians (one medical teaching staff from a medical school and two physicians from the Ministry of Health (MOH)), as well as a legal expert. In the case of a malpractice suit against a pharmacist, the committee also has two pharmacists, one of whom is a teaching staff of a pharmacy college and the other a pharmacist nominated by the MOH. The SMP is allowed to consult any expert in the field of specialties related to the case under scrutiny. Blood money paid only in the event of death is the highest compensation, whereas other categories of compensations for the loss of an organ or its functions. The SMP makes its decision on majority votes provided that the judge is a part of this majority. The decision of the SMP is independent, final and can be appealed through the Council of Governance within 60 days of its issue.
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