Healthcare & Life Sciences Focus
Christina SochackiSenior Counsel, Head of Healthcare & Life Sciences - Saudi Arabia
Abdulaziz AlShahraniSenior Associate,Dispute Resolution
Abdulmohsen AlSalehTrainee Lawyer,Corporate Commercial
In Saudi Arabia, medical malpractice is mainly regulated by the Law of Practicing Healthcare Professions “PHCP” issued under Royal Decree No M/59 dated 04/11/1426H (corresponding to 6 December 2005).
The PHCP states that there are three types of liability to which a healthcare practitioner may be subject, which are professional liability, criminal liability, and disciplinary liability.
In respect of professional liability, Article 27 of the PHCP states that any healthcare practitioner who commits a professional error causing harm to a patient shall be held liable for indemnification, which can lead to healthcare practitioner being subject to civil liability, as it may constitute medical malpractice. Also, it is mentioned that any provision that limits the liability of a healthcare practitioner or limits the ability to hold the healthcare practitioner accountable will be deemed as invalid in the eyes of the law in Saudi Arabia. Thus, in accordance with Article 26 of the PHCP, healthcare practitioners are obliged to ensure that their work is conducted with a commitment to exert due care in line with recognized scientific principles and professional standard.
a person shall be sentenced to a maximum term of imprisonment of six months and a fine which does not exceed one hundred thousand Saudi riyals (100,000 SAR), if it is proven that one of the actions set out within the law has been committed
Moreover, in relation to criminal liability, Article 28 of the PHCP states that, without prejudice to any more severe punishment stipulated in other legislation, a person shall be sentenced to a maximum term of imprisonment of six months and a fine which does not exceed one hundred thousand Saudi riyals (100,000 SAR), if it is proven that one of the actions set out within the law has been committed (such as practicing without a licence or unjustifiably declining to treat a patient). The breaches mentioned in the PHCP are not an exhaustive list of acts that may lead to criminal liability; in accordance with Article 30, any violation of the law that has not been enumerated in the PHCP can still be punishable by a fine not exceeding twenty thousand Saudi riyals (20,000 SAR).
Finally, in relation to disciplinary liability, Article 31 of the PHCP regulates instances that may constitute disciplinary liability on a healthcare practitioner. It states that healthcare practitioners that default in performing duties stipulated in the law, violate relevant codes of practice, or act contrary to professional conducts or ethics will be held accountable, and can face penalties such as a warning, fine, or revocation of the relevant license.
Previously, the Sharia Health Panel was given jurisdiction over claims of medical malpractice in cases brought before it regarding private rights, which includes claims of blood money, indemnity, and retribution, and claims of medical malpractice in cases leading to death, damage of an organ, and loss of total or partial use of an organ, even in the absence of a claim for a private right.
Article 33 of the PHCP prescribes the formation of a Sharia Health Panel, which consists of one judge holding a grade not lower than (A) designated by the Ministry of Justice, one legal advisor designated by the Minister of Health, one faculty member from a college of medicine designated by the Minister of Education, one faculty member from a college of pharmacy designated by the Minister of Education, two competent and experienced physicians chosen by the Minister of Health, and one competent and experienced pharmacist chosen by the Minister of Health. In addition, the Private Health Institutions Law “PHI” issued by Royal Decree No. M/40 dated 03/11/1423 H (corresponding to 6 January 2003) states in Article 22 that the legal medical committee has the right to consider the liability of a private health institution for medical errors that constitute either a private or public right.
Under this judicial framework, appeals on decision of the Sharia Health Panel were held in the Board of Grievances, which is the administrative court in Saudi Arabia. Nonetheless, new developments within the judicial framework have changed the appeals process, as will be explained below.
Circular T/1712 issued by the Supreme Judicial Council of Saudi Arabia has introduced substantial changes to the judicial framework of medical malpractice cases within the Kingdom. This circular is based of the Supreme Judicial Council’s decision no. (9/3/42), which transfers the jurisdictional powers granted to the Sharia Health Panel, by virtue of the above-mentioned Article 34 of the PHCP and Article 22 of the PHI, to the General Courts. It provides jurisdiction to the General Courts over cases regarding the liability of private health institutions in relation to medical malpractice, which includes private or public rights.
The significance of the above decisions is that it creates eight new specialized judicial circuits at the General Court in Riyadh, each consisting of three judges that are specialized in hearing cases that are related to medical malpractice. Also, two specialized appeal circuits are created by the circular, each consisting of three judges, and it will be responsible for hearing appeals on judgments made in cases of medical malpractice. The specialized judicial circuits will have the power of conducting their court hearings through electronic means by using the resources of the Ministry of Justice online portal. Also, the judge in the specialized judicial circuits may delegate a specialized medical expert from the same specialty in the case, in order to ensure the validity of the judge’s decision.
Importantly, the circular not only transfers the jurisdiction to the specialized judicial circuits, but also transfers all current cases from the jurisdiction of the Sharia Health Panel to the specialized judicial circuits at the General Court. Nonetheless, this transfer does not include cases that have been issued with an initial decision by the Sharia Health Panel.
In conclusion, we can see that the PHCP aims to ensure that healthcare practitioners are exercising due care and diligence when executing their duties, which is clear when considering the multiple facets of liability imposed on healthcare practitioners.
Moreover, while the previous judicial framework of the Sharia Health Panel aimed to have experts in the judiciary, the new framework’s appointment of three specialized judges at each of the specialized judicial circuits not only ensures expert opinion, but also aims to further develop this area of the judicial system. These changes came to keep pace with the general developments in the judicial system in the Kingdom of Saudi Arabia, which is one of the pillars of the Kingdom of Saudi Arabia's Vision 2030.
For further information please contact healthcare@tamimi.com.
Published in January 2023
