The disciplinary committee of the Abu Dhabi Department of Health is established by Resolution No. (40) Of 2019
Dr. Omar AlAzaweSenior Associate,Dispute Resolution
Majd DahdahTrainee Lawyer,Dispute Resolution
The disciplinary committee (“Disciplinary Committee” or “Committee”) of the Abu Dhabi Department of Health ("DOH") is established by Resolution No. (40) Of 2019 (“Resolution”).
Article (2) of the Resolution states that the Committee shall exercise its disciplinary powers in accordance with the provisions of the DOH’s disciplinary regulations issued on 18 August 2019 (the “Disciplinary Regulations”). Article (2) of the Disciplinary Regulations states that its provisions apply to the health sector in the Emirate and to health professionals working in the health sector.
Article (4) of the same regulations states that the Disciplinary Committee is competent to consider the reports of Medical Liability Committee in determining whether any given case constitutes medical malpractice.
Furthermore, paragraph (36) of Article (33) of the Disciplinary Regulations specifies the disciplinary penalties the Committee may impose on health care practitioners who it determines to have committed medical malpractice, as follows:
Written warning;
Written notice;
A fine of not less than AED 1,000 and not more than AED 1,000,000;
Temporary suspension of the license to practice the profession (“Licence”) for a period not exceeding one year; and
Revocation of the License.
Article (21) of the Disciplinary Regulations provides that the decisions of the Disciplinary Committee may be appealed to a Grievances Committee within 60 days from the date the complainant is notified of the decision.
In Grievance No. (87) for the year 2021, Al Tamimi & Company successfully reduced the penalty of a disciplinary decision that was issued against one of our client’s doctors. The case highlights that disciplinary action must be proportionate to the medical error.
A patient of our client, a leading medical center in the UAE, had filed a complaint against a consultant cardiac surgeon for a medical error that occurred during a heart valve repair procedure. Some complications occurred, resulting in a longer operation, a 14-day stay in intensive care for the patient, and secondary complications.
The competent health authority decided to refer the complaint to the Medical Liability Committee, which was tasked to study the patient’s medical file to:
Determine whether the physician’s actions were consistent with recognised medical standards;
Determine whether the medical error caused any complications for the patient, with an indication of their percentage, if any; and
Make a decision on the complaint.
The Medical Liability Committee issued its decision on the complaint on 22 November 2020, and concluded as follows:
The health care provided to the patient by the physician was not consistent with the recognised medical standards; and
There was a technical medical error during the surgery that was not discovered and corrected by the physician, resulting in a lengthy hospital stay and the occurrence of complications.
As a result, it was determined that the physician made a medical error while treating the patient. Taking into account the Medical Liability Committee's report, the Disciplinary Committee determined that the doctor had made medical technical errors during surgery that resulted in the patient's care not meeting accepted medical standards. As a result of this violation, the Disciplinary Committee decided to punish the doctor by revoking his license to practice medicine in the state.
In accordance with the principle of proportionality, which applies under UAE law, we argued that the penalty should be proportionate to the error, and thus, the most severe penalty should be imposed only for the most serious medical errors, negligence, bad faith, or premeditated harm.
The physician filed a grievance before the Grievances Committee with the assistance of Al Tamimi & Company.
The grievance pleaded a number of technical medical defenses in an effort to demonstrate that the physician did not commit a medical error and that the medical procedure was carried out in accordance with recognised medical standards. However, from a technical standpoint, this defense is difficult to establish where the Medical Liability Committee, which examined the medical file, has dertermined the existence of a medical technical error by the physician. In the present case, the Grievance Committee did not accept the physician’s technical defences. However, it did accept our legal defence on his behalf.
As we noted above, paragraph (36) of Article (33) of the Disciplinary Regulations, specifies the disciplinary penalties the Disciplinary Committee may impose on health care practitioners who it determines to have committed medical malpractice. However, it does not specify the disciplinary sanction for each type of medical error, implying that the provision theoretically allows the Disciplinary Committee to impose the maximum penalty against a physician who is proven to have committed any "medical error" regardless of the description of that error. There is no medical error scale/gradation that corresponds to a disciplinary penalty gradation.
In accordance with the principle of proportionality, which applies under UAE law, we argued that the penalty should be proportionate to the error, and thus, the most severe penalty should be imposed only for the most serious medical errors, negligence, bad faith, or premeditated harm. Since this was not established, there was no justification for imposing the most severe punishment on the physician. In other words, not all medical errors justify the severest penalty.
On 5 January 2022, the Grievances Committee decided to accept the legal defence we advanced on behalf of the physician, and thus on the merits to reduce the penalty order by the Disciplinary Committee to a temporary six month suspension.
For further information, please contact healthcare@tamimi.com.
Published in January 2023
