Coping with Allegations of Medical Malpractice in UAE- A Defence Lawyer’s Perspective

Introduction

1. Over two decades ago, an American psychiatrist at the University of Illinois, School of Medicine published an article[1] (“the Article”) on how physicians react to accusations of medical malpractice and suggested a range of strategies that they can use to diminish the emotional disequilibrium that accompanies this experience. Dr Charles’ findings were based upon survey and interview studies and extensive clinical experience going back to the mid-late 1980’s- as well as being sued personally as a defendant in medical malpractice Court proceedings. 

2. For the most part, subsequent published research and discussion on the subject has been scant  although there is a body of opinion that Medical Malpractice Stress Syndrome (“MMSS”) is a recognized psychiatric condition effecting physicians similar in nature to Post Traumatic Stress Disorder.  Public reaction to any discussion of MMSS is largely un-sympathetic and often shifts focus to the psychological effect of medical malpractice on patients- and their families- which is, of course, missing the point. This lack of public understanding, perhaps, reinforces the very real impact of MMSS and its-potentially- long-term effect on physicians.

3. The objective of this article is to apply Dr Charles’ findings and suggestions within the context of the legal framework of medical practice within the UAE. This application is informed by the writer’s own twenty-five years of legal practice in the UAE advising and representing physicians, hospitals and their liability insurers and the day- to- day professional dealings with physicians practicing sometimes under enormous pressures. Although medical malpractice insurance is compulsory in UAE and, therefore, damages awards and legal defence costs may be taken care of by the liability underwriters (subject to policy terms of course) -in the writer’s experience – this financial support neither removes nor significantly reduces the level of stress and worry that physicians experience in these circumstances. 

Physicians working in the UAE may face allegations of medical malpractice in – broadly- three procedural contexts namely: –

3.1 civil claims for compensation pursuant to UAE Civil Law (“Civil Proceedings”); and/or

3.2 criminal investigation/charges pursuant to UAE Penal Law which carry the possibility of imprisonment and/or fines (“Criminal Proceedings”); and/or

3.3 regulatory and/or compliance proceedings where an adverse finding could result in physicians losing their licenses to practice and their ability to earn a living in their chosen profession via a complaint- first- to the relevant Medical Liability Committee (‘MLC ‘) and- subsequently- various Medical Practices Committees (‘MPC’) which may impose sanctions (“Regulatory Proceedings”).

4. It is not impossible- although certainly not typical- that physicians practicing in the UAE may find themselves involved simultaneously in all three sets of proceedings in respect of the same matter.  Federal Decree No 4 of 2016 provides that an aggrieved patient is required to obtain a report from the relevant Medical Liability Committee as a prerequisite to file a case for compensation before the Civil Court – the thrust of which is- to obtain a finding of medical error or serious medical error causing harm/injury to the patient.  These Regulatory Proceedings are free to file and do not require a complainant to incur any legal professional costs. However, these regulatory committees have no jurisdiction to award or order compensation or impose a criminal penalty, but they do have access to an arsenal of sanctions including restricting/withdrawing a physician’s license and fining physicians and their employers. The findings of a relevant M.L.C may be appealed within 30 days to the Supreme or Higher Committee on Medical Liability (‘HCML’) an appellate committee created by statute comprising a dozen or so various physicians etc. mostly drawn from the public health sector. Similarly, the level/degree of sanctions imposed by the relevant Medical Practices Committee may also be subject to appeal.

5. An aggrieved patient may also opt to lodge a complaint to the police/ Public Prosecutor. Most Public Prosecution offices in UAE accept that a MLC Report may be subject to appeal to the HCML and hold off commencing criminal proceedings until the HCML issue its decision- once an adverse HCML decision is issued criminal proceedings are usually soon to follow. In the event that a physician is convicted, the aggrieved patient/Plaintiff adduces the fact of conviction as evidence in Civil Proceedings- alongside a MLC/HCML Report against a physician- making liability virtually incontestable- the only issue then under consideration is quantum and the level of compensation to be proven or assessed. Patients and their families often seek solace in the retribution aspect of a criminal conviction and having someone to blame -and see punished- is often a powerful motivating factor propelling a criminal complaint.

6. Clearly, -rightly or wrongly-aggrieved patients in UAE have a distinct strategic and tactical advantage in being able to choose the procedural context – consistent with his/her objectives- in which to pursue allegations of medical malpractice whereas physicians have no choice but to respond to and be choreographed by- the procedural rigors of the relevant procedures invoked against them.

7. Reproduction of key passages from the Article cannot be avoided and it is emphasized that these are Dr Charles’ expert findings and advice.  To avoid confusion, some passages have been edited to remove comments /references pertinent to the US legal system procedures only. Where certain references to the UAE are made these are the writer’s own personal observations and cannot be attributed to Dr Charles. 

Reactions on Allegations Being Formalised in Court Proceedings

8. According to Dr Charles, most physicians are competent and achieve a reasonable level of satisfaction in their personal and professional lives. It is suggested that this serves as good preparation for managing the litigation experience. The reaction to being sued often follows a period of emotional turmoil following the catastrophic event or negative outcome which forms the basis for the events which then ensue.

9. “Physicians tend to be self-critical and, therefore, tend to doubt themselves, be vulnerable to feelings of guilt, and to possess an exaggerated sense of responsibility. These personality features render them particularly vulnerable to the demands of tort law because fault must be established for compensation to be paid. In medical malpractice law, fault is based on a deviation from the standard of care that resulted in the injury. As a group, physicians are acutely sensitive to any suggestion that they have failed to meet the standard of care or are not “good” doctors. Their honour—that sense of personal integrity that most people cherish—is at issue, and the threat of its loss is devastating. This accusation of failure represents a personal assault: the central psychological event that generates the stress that gives rise to the symptoms and reactions described.

Other factors unique to each case, such as the physician’s relationship with the patient, the nature of the patient’s injury, and the amount of surrounding publicity, all play a role in generating stress. Last, litigation is intrinsically adversarial and creates an environment foreign to that in which most physicians work. This contributes to feelings of isolation, frustration, and dependency that threaten their usual feelings of equilibrium”.

10. Added to this are feelings of exposure, uncertainty and unfamiliarity with the UAE civil law legal system given that most physicians in the UAE are expatriates from jurisdictions with-perhaps- entirely different legal systems. An obvious example would be physicians from “common law” countries such as UK, Canada, US, Australia, Singapore etc where civil and criminal courts adopt an adversarial approach whereas in UAE courts are “inquisitorial” in nature. The differences between the two systems are substantial and often lead to misconceptions which commonly heighten anxiety and a feeling of isolation and helplessness. 

11.“More than 95% of physicians react to being sued by experiencing periods of emotional distress during all or portions of the lengthy process of litigation. This may begin immediately on being served with the complaint by a sense of outrage, shock, or dread about the personal and financial effects of the eventual outcome. This is the first reaction in a series that is similar to those that accompany any major life event. Feelings of intense anger, frustration, inner tension, and insomnia are frequent throughout this period.

Symptoms of major depressive disorder (prevalence, 27%-39%), adjustment disorder (20%-53%), and the onset or exacerbation of a physical illness (2%-15%) occur, although fewer than 2% acknowledge drug or alcohol misuse. …. A general internist, for example, described awakening with his first episode of atrial fibrillation after being served with his first malpractice suit the previous afternoon. This generated emergency medical consultation accompanied by profound psychological effects on the physician. Some 2 years later, it figured prominently in his decision to settle and to retire earlier than he had originally planned.”

Common Post-Complaint Experiences

12. The Article sets out symptoms that may develop during any of these stages when adequate coping fails

“• The complaint is served: initial feelings of surprise, shock, outrage, anxiety, or dread.

• Consultation with lawyer: depending on the initial assessment of the case, reactions of anger, denial, concern, reassurance, panic

• Lengthy period of denials and intrusions: active attempts to erase thoughts about the case, followed by automatic reminders and intrusive thoughts about it; becoming preoccupied by ruminating excessively exacerbated whenever case-related activity increases……

• Working through the lengthy process, during which physicians psychologically and intellectually “process” the meaning of the case, their role in it, and their approach to their own defence

• Relative completion of response: physicians change in many ways because of being sued; ideally, adaptations lead to greater competence and a more satisfying personal and professional life.”

Coping With Litigation

13. The Article maintains that the key step in the coping process is to quickly re-establish the emotional equilibrium of the physician. Being fully prepared and briefed on the actual steps that a physician should expect; careful monitoring of a one’s health by a fellow physician; avoidance of self-medication even for the relatively minor symptoms such as insomnia etc and a health check on one’s personal and professional relationships are the first steps that physicians should be considering. Apparently, the risk for an additional claim doubles for physicians who have had a claim in the previous year and this emphasizes the need for as rapid an equalization as possible.

14. A central theme which pervades the litigation process is one of a perceived lack of control and the need to regain a degree of “mastery” which assists the coping process enormously.  In the UAE, the uncertainty of how a case shall proceed i.e., Civil and/or Criminal and/or Regulatory Proceedings adds significantly to feelings of “lack of control” and “helplessness” in physicians.  The investigation stage of Criminal Proceedings proceeds at a pace entirely dictated by Public Prosecutors who have their own internal processes and resource management factors to take into consideration.  This doesn’t make it any easier on potential Defendants who may have their passports taken from them during the investigation and are likely to be summonsed to attend meetings and interviews with the PP on very short notice.  The restriction on travel-particularly with expat physicians- is particularly stressful although to mitigate this passports may be released allowing overseas travel  for essential business travel or family emergencies etc provided adequate  surety arrangements are in place. Once passed on to the Courts, however, cases proceed at a much brisker pace.

15. In UAE, all three sets of proceedings involve an investigation phase being carried out by the relevant MLC and in many cases HCML. This involves what may be seen as “frank and forthright” questioning by peers but physicians, overall, have had some experience of peer -review and have some idea about what to expect in a peer -review type scenario. Given that Patients and Physicians have the right to appeal an MLC decision often gives rise to appeals to the HCML – although just recently a filing fee of AED 5,000 per appeal has been introduced and has been seen by some commentators as an effort to discourage spurious/unmeritorious appeals. Presently, the time between filing an appeal and a decision typically range from between 12- 24 months which in turn increases the duration and costs of Civil Proceedings and Criminal Proceedings. It is unclear what steps could be taken to reduce the accumulation of appeals whilst maintaining the integrity of the appeal structure.

16.  The Article conceptually divides the various coping mechanisms into three parts.

Social support:

• Discuss your feelings with a trusted person—your lawyer, another physician, a family member, or a friend

• If the above are unavailable, contact your local medical or specialty society for referral to an available peer or support group

Restore mastery and self-esteem:

• Ask your lawyer to describe your role in each step of the process

• Ask about the anticipated length of time required to process the case

• Make sure you feel comfortable with your appointed lawyer and request a change, if necessary

• Determine the usefulness of retaining a personal lawyer

• Participate in choosing your experts

• Prepare yourself for the unpredictability of the process— the rules, the lawyers, the judge, the experts,

• Take an active role with your lawyers in the defence of the case

• Identify areas of practice that cause anxiety or feelings of “loss of control” and find ways to diminish them

• Do not participate in practice situations that demand compromises in your professional standards

• Engage in activities that will increase your competence: courses, accreditation activities, teaching, or hospital or clinic committee work

• Review the amount of time you devote to family and professional activities and make the necessary changes

• Attend to financial and estate planning if this has been long delayed

• Take time away from practice, such as a vacation

• Participate regularly in active sports, workouts, or other leisure activities

• Schedule the necessary preparation time for ……… participation in the trial

Change the meaning of the event:

• The charge is that you have failed in competence and are, therefore, a “bad” doctor; you therefore need to work to perceive yourself as “good”

• Review your career objectively: most physicians function well and with competence

• Reflect on the input of legal and insurance counsel about the case and work to acknowledge the “truth” about the events in question

• Seek trustworthy consultation with family and professionals about the effects of settlement and/or going to trial

• Be kind to yourself, even when being objective

17. A key feature in “regaining mastery” is the involvement of a defence lawyer who not only has to be a good lawyer but also must clearly understand and –with appropriate sensitivity-manage the physician’s personal and emotional needs in the very human drama that is unfolding.  Many lawyers (could be in UAE or indeed anywhere) driven by budgetary constraints – do not fully embrace the involvement of and interaction with physicians as fully as Dr Charles recommends. Clearly, those lawyers who fail to strike a reasonable balance and cater to the needs of the physician in this regard may find themselves at risk of being replaced by someone else who will.

18. It is also the writer’s experience that most substantial UAE employers (i.e. hospitals/clinics) are – for a number of sound legal and financial reasons-very supportive of employed physicians facing medical malpractice allegations-not least financially. It is often the case that an employer will pick –up the tab for legal defence fees where liability underwriters are unable-for whatever reason- to provide support for a particular case. Leaving aside the financial aspects, many physicians feel strengthened by the public support of their employers.

Conclusion

19. In its present state, the legal and regulatory landscape in the UAE does little to discourage allegations of medical malpractice being asserted against physicians. For the time being -and with the numbers of complaints from patients rising- physicians who find themselves subject to allegations of medical malpractice would be imprudent to ignore the impact of MMSS and the various coping mechanisms that Dr Charles (and others) recommend.  There are defence lawyers out there that can help with the coping process in ways other than just being technically good lawyers- although in a highly competitive legal market such as the UAE and “bottom- line” thinking- these are the exception rather than the rule.

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