The increasing cost of health insurance and medical care could be reduced if incidences of malpractice by doctors were decriminalised.
Legal experts claim that sending health professionals to prison for misconduct is contributing to unnecessary medical tests and the over prescribing of medication. The over-cautious culture is placing huge financial pressures on the industry, with insurers blaming waste and abuse of the system for rising premiums.
Decriminalising malpractice would help attract the best doctors to the UAE and encourage medical tourism, experts said.
“Medical malpractice is something doctors are very concerned about,” said Stephen Ballantine, a solicitor at Galadari Advocates and Legal Consultants in Dubai, which specialises in medical malpractice cases.
“Doctors go to jail all over the world, but not for simple malpractice. It has a negative impact if a doctor knows he can go to jail for not testing a patient to indicate a serious illness.
“You can understand why doctors run tests that may not be necessary but they are criticised by insurers for doing so. Decriminalising malpractice would help bring down health care costs.”
Although the latest malpractice figures and complaints in Dubai hospitals were not available, Dubai Health Authority recorded more than 500 incidents in 2014.
While Mr Ballantine wants to see malpractice decriminalised, he said doctors found guilty of gross negligence should still be punished.
Gross negligence is when doctors cause damage by failing to meet acceptable standards. A criminal case against a doctor for either malpractice or gross negligence depends on the patient, family or health authority making a complaint.
“Anyone carrying out their profession trade or craft who causes harm to others should be prosecuted but, in my experience, only doctors are ever charged,” Mr Ballantine said.
“The penal code should be revised to deal with gross negligence only. It would be a step forward to say doctors are exempt. If that is too much, then custodial sentences could be removed from punishments.”
Custodial sentences are rare for doctors but fines ranging from Dh5,000 to Dh20,000, depending on the damage done to a patient, still weigh on medics’ minds.
In addition, medical licences can be revoked and hospitals shut down in some cases. Shabnam Karim, a senior associate in Dubai at international law firm Clyde & Co, said there had been a marked increase in malpractice claims in the past two years.
“Professional practices can vary, which may explain why claims are steadily increasing,” she said.
“Claims have also been influenced by increasing regulatory oversight by health authorities.
“We have dealt with several claims where medical professionals have been subject to criminal investigations, arrested and banned from travel.”
Although imprisonment of medical professionals for acts of malpractice or negligence remains rare, the threat of criminal proceedings against medical professionals remains problematic.
“Medical professionals, particularly those in high-risk specialties like obstetrics or surgical specialties, are concerned by criminal proceedings being commenced by unhappy patients,” Ms Karim added.
“While the actual incidence of imprisonment is low, the risk that a professional could have a passport confiscated for several years is a definite deterrent to attracting the best foreign practitioners.”
Malpractice does not necessarily need to be decriminalised to improve patient care, according to Ahmed Faiyaz, a health care strategist at professional service auditor Ernst & Young.
He has backed the idea of anonymous reporting of errors to encourage more doctors to admit when mistakes happen, so improvements can be made.
“Criminalisation should exist in certain situations but not every case should be seen to be taken that way,” he said.
“Adopting best practices would help put clinicians here at ease as they know they are working to international guidelines.
“If a doctor is not considered good enough or has black points against his name, he should be taken off the network.”