Alaa Redwan writes:

“All the daily occurrences between families and doctors within hospitals and clinics emphasize the urgent need to expedite the issuance of the medical liability law to resolve the ongoing crises between both parties. This project has been pending since 2016, a total of 7 years. Meanwhile, Dr. Ashraf Hatem, head of the Health Committee in the House of Representatives, presented a new draft law on ‘medical liability’ just 10 days ago. This draft has the backing of 60 parliament members, outlining cases of exemption from medical liability, penalties for assaulting medical service providers, and the formation of the Supreme Committee for Medical Liability. This new proposal is intended as a substitute for the law that has been pending for 7 years.”

Penal Code

This comes at a time when Egyptian legislation addresses medical negligence in Article 244 of the Penal Code. Through this article, the punishment for medical negligence or error is considered a misdemeanor rather than a felony, with a penalty of up to 3 years in prison. This penalty may increase in cases of significant errors. The severity of medical errors is determined by a specialized examination committee from the prosecution, taking into account the circumstances and details of the incident.

However, the Doctors Syndicate objects to this article, refusing to consider its members as criminals subject to imprisonment. Instead, they demand the issuance of a healthcare responsibility law, allowing a specialized medical committee to investigate the incidents.

The Doctors Syndicate consistently declares its position against the pretrial detention of its members regarding medical malpractice cases. It clarified in the draft law presented to the parliament that it is not permissible to arrest or detain medical service providers in cases related to acts attributed to them during or in relation to their work, unless a report from the Medical Responsibility Assessment Body confirms a suspicion of criminal responsibility. Furthermore, it affirmed that imprisonment is not anticipated in cases falling under this law where medical responsibility is proven. Penalties in these cases are limited to civil compensation. The maximum compensation limits set by the Medical Responsibility Assessment Body serve as guidance for the judge in determining the due compensation value.

Notes on the New Draft of the Medical Liability Law

In the following report, a “parliamentarian” sheds light on a number of crucial issues concerning the new draft of the Medical Liability Law. Many believe this law will be the sole decisive factor in preventing the ongoing conflicts between doctors and patients, distinguishing between medical errors and serious negligence. It aims to address the widespread issue in Egypt, akin to a spreading fire, endangering the relationship between patients and their families on one side, and the treating physician on the other.

Regarding the new draft law on medical liability, Dr. Ihab El-Taher, a member of the General Syndicate Council of Egyptian Physicians, states that there are drawbacks in the proposed Medical Liability Law. Regrettably, the draft law includes imprisonment as a penalty in medical error cases – without any criminal suspicions. This aspect drains the original purpose of the law. Additionally, it imposes hefty fines of up to one million Egyptian pounds, in addition to compensation awarded to those harmed by the error.

The following 8 articles need to be reviewed for addition and modification.

According to “El Taher” in statements to “Parliamentarian”: The imprisonment penalty is not found in the laws of other countries that preceded us in this field unless there are criminal suspicions, unauthorized actions, deliberate harm, or violations of state laws because these constitute medical “crimes” and not medical “errors”. Medical errors should entail other penalties such as compensation for the affected individual, paid by the insurance company from doctors’ subscription fees. This is in addition to the rehabilitation of the doctor if needed, and sometimes suspension or removal from professional records.

According to “El Taher”: They are well aware that the imprisonment penalty will not lead to an improvement in medical services and will not benefit the patient at all. Sometimes, it leads to what is termed “defensive medicine,” where some doctors may refrain from prompt and effective intervention in complicated cases where the success rate of treatment isn’t high. This reluctance is due to fear of imprisonment. Consequently, the negative outcome will affect the patient adversely.

Doctors see the necessity of issuing a law that is “scientific” rather than “criminal.”

Additionally, a member of the General Syndicate Council of Egyptian Physicians adds: Concerning some raised suspicions about the unconstitutionality of removing imprisonment penalties, which could be seen as discrimination between citizens, this opinion is incorrect. The forms of discrimination referred to in Article 53 of the Constitution are based on the principle of prohibiting differentiation between citizens who share equal legal standings through the equivalence of elements they are based on. We all know that legal standings differ between suffering harm or death due to a medical intervention, which necessarily aimed to benefit humans, and injury or accidental death resulting from any other cause (like a quarrel, a car accident, a house collapse, etc.).

The Supreme Constitutional Court ruled that the principle of equality before the law does not imply treating categories of citizens, with variations in their legal standings, equally under the law, according to Case No. 19 of the Constitutional Judicial Year 1992. Therefore, there are no suspicions of unconstitutionality in proposing the removal of the imprisonment penalty. However, there are some observations on the provisions of the draft law – as stated by “El Taher.”

Article 1 (Definition of Medical Error):

Negatives: The causative relationship between the error and the harm was not mentioned.

Required Addition:

Medical liability occurs with the healthcare provider if the following conditions are met:

1- Occurrence of a medical error.

2- Occurrence of harm to the recipient of the medical service.

3- Proof of a causal relationship between the medical error and the harm suffered by the recipient of the service.

Article 3: Medical liability is exempt in any of the following cases:

Paragraph (3): If the harm occurred due to the recipient’s action, refusal of treatment, or non-compliance with medical instructions, provided that the healthcare provider proves it.

Modification Required: Amend the wording as follows: If investigations establish that the harm occurred due to the recipient’s action.

Article 4: Healthcare Provider’s Obligations:

• Compliance with professional rules, regulations, and procedures.

• Recording the case.

• Using suitable tools and devices.

• Writing the doctor’s name, signature, and prescription date.

Negatives:

• All obligations are required from the natural healthcare provider (doctor) only, without specifying any obligations from the institution.

Required: Addition of a clause specifying the obligations of medical establishments.

Article 6: In non-emergency situations, surgical procedures can only be conducted by considering the following:

Paragraph (1): The doctor should be qualified based on their scientific specialization, clinical qualities, and practical experience.

Paragraph (5): The procedure should take place in a licensed facility equipped for the required surgery.

Negatives:

1- The clinical merit system has not been implemented in Egypt yet, so how will the doctor prove that?

2- While it’s expected for the doctor to work in a licensed facility, how can they guarantee the readiness and continuous maintenance of the devices?

Required:

1- Eliminate the phrase “clinical qualities” from Paragraph 1.

2- Eliminate the phrase “equipped for the required surgery” from Paragraph 5.

Article 12 (Powers of the General Committee for Medical Responsibility):

Second Paragraph: Referring complaints received from the Public Prosecution, investigation authorities, or the relevant court to the subcommittee to prepare a report about them.

Modification Required:

Add the following phrase: The report issued by the Medical Responsibility Assessment Committee is one of the necessary documents for litigation.

Article 20 (Key Sources of the Compensation Fund):

• 10% from the licensing fees of private establishments.
• 10% from the professional practice licensing fees.
• Amounts from private medical facilities only (Article 17).

Negatives:

There is no financial commitment to the fund from government institutions.

Required:

Establish a financial commitment on government institutions similar to that of private establishments (e.g., 1% of the value of each surgical operation fee in any public or private medical facility).

Article 22 (Penalties):

Without prejudice to any severer penalties stipulated in any other law…

Negatives:

1- The penalties in this law do not exclude being subject to any other severer penalties stipulated by another law.

Required:

Remove the phrase “without prejudice to any severer penalties.”

Article 23:

The punishment includes imprisonment and a fine ranging from two hundred thousand to one million Egyptian pounds, or one of these penalties, for anyone who violates the provisions of Articles 6, 5, or 4 of this law.

Negatives:

1- The imprisonment penalty undermines the essence of the law; imprisonment should only be applied if there are criminal suspicions or intentional violations of laws. 2- The fine amounts are exceedingly high. 3- There are no penalties imposed on establishments for not providing necessary devices and supplies.

Required:

1- Eliminate the imprisonment penalty. 2- Reduce the fines to a maximum of fifty thousand pounds. 3- Add penalties on establishments for failing to adhere to medical and professional standards.

It’s worth noting that the Doctors Syndicate submitted a comprehensive “scientific” law proposal years ago, revised it after addressing objective observations expressed by the Ministry of Justice. Unfortunately, it hasn’t been presented for discussion in the House of Representatives. Ultimately, what’s required is the issuance of a “scientific” law, not a “criminal” one, ensuring the patient’s rights without unjustly affecting the doctor, as mentioned by “El Taher.”

News source: Parlmany