Abortion – The Medical Liability for Abortion Permitted Cases In UAE
Abortion – The Medical Liability for Abortion Permitted Cases In UAE
In case it is proven before one hundred and twenty days of pregnancy that the fetus has a serious untreatable deformation that leads to a bad and painful life for him and for his family, then the doctor, in particular, must inform the mother immediately about this deformity, so that she and her husband can use their right to perform abortion before the soul is breathed into the fetus. If the doctor deviates from performing this duty, this is considered an error necessitates his liability for the harm made to the newborn and his parents.
Dubai Court of Cassation, in a recent ruling, has established a judicial principal that it is decided in the judiciary of this court that although the responsibility of the doctor is not based on the obligation to achieve a result, but on the obligation to exert care. The care required from him requires that he makes sincere efforts for his patient that are consistent with the principles in medical science. The doctor shall be questioned for every failure in his medical career that does not occur by an attentive doctor at his professional level, in the same external circumstances that surrounded the responsible doctor.
He is questioned as well for his ordinary error regardless of its seriousness. According to Articles 3 and 13 of the Federal Law number 10 of 2008 for medical liability, the obstetrician-gynecologist must, in order to examine the pregnant woman and her pregnancy, take the necessary measures regarding her, perform his work duties with the accuracy and honesty required by the profession in accordance with the recognized scientific principles and to give the necessary care for the pregnant woman and the pregnancy. In case it is proven before one hundred and twenty days of pregnancy that the fetus has a serious untreatable deformation that leads to a bad and painful life for him and for his family,
then the doctor, in particular, must inform the mother immediately about this deformity, so that she and her husband can use their right to perform abortion before the soul is breathed into the fetus. If the doctor deviates from performing this duty, this is considered an error that necessitates his liability for the harm made to the newborn and his parents.
The conclusion of confirming or negating the deviation of the doctor from performing his duty and his breach to his obligation as aforementioned is a fact estimated only by the subject court from the pieces of evidence submitted in the case.
However, this requires the conclusion is justifiable on a fixed origin in the documents and leading to its judgment. Whereas this, it is evident from the supplemental report of the Medical Liability Committee delegated by the Court of Appeal that ((the second Appellant, during her seventh week pregnancy, visited Dr./ the third Appellee on 15/5/2010. An ultrasound scan for the fetus was performed, and folic acid pills were prescribed. On 19/05/2020, she complained of rash all over her body and the sixth Appellee doctor advised her to stop taking folic pills and prescribed an anti-allergy. The third Appellee reassured her and did not think about rubella and the possibility of the fetus deformation.
She underwent routine examinations, including the rubella IgG test, and she was diagnosed with previous immunity, and the IgM procedure which shows if she had a recent infection was not performed. The second Appellant moved to the fourth Appellee to follow up the pregnancy in the twenty sixth week as she gave birth to the child on 21/12/2010, and he suffers from corneal opacity and a murmur in the heart. The child was examined for rubella and it was 199.6 positive and the parents were not informed of that. The child’s eye surgery was performed on 28/12/2010 in India, and at the age of nine months,
the child was diagnosed with a moderate to severe hearing loss in the right ear and severe in the left ear with no ability to speech and a delay in development. The Appellants noticed that he does not communicate visually and that the third and sixth Appellees were supposed to make sure that the second Appellant did not have rubella, since the probability of the fetus deformation in the first three months is more than 80%, and the Appellants have the right to know the possibility of deformation of the fetus, and when the result of the immunological examination for rubella was high; it was necessary to make sure that there was no recent infection, especially with the presence of the previous complaint, and that the third and sixth Appellees neglected to diagnose the Appellant’s condition,
which resulted in not giving the parents the right to choose the procedure they deem appropriate. Whereas it is evident from the mentioned medical report that it confirms that the fetus’s deformities in the ear and eye are severe and they could have been discovered before the end of one hundred and twenty days of pregnancy means before the soul entering the fetus, by conducting the IgM test which shows whether the second Appellant has a recent rubella infection and shows the deformities that may happen to the fetus as a result of the infection of the mother_ the second Appellant_ with rubella,
but examination was not performed when the result of the immunological examination for rubella was high, which would help the third and sixth Appellees discover the presence of rubella and its percent which leads to deformities. They failed to discover it because they did not take the necessary care to perform an IgM test, and this negligence in the diagnosis led to missing the opportunity for the Appellants to use their right in an abortion before the soul breathing into the fetus, and after the second Appellant gave birth to the newborn at the fourth Appellee, the latter examined the child’s rubella which was 199.3 positive and she was not informed. All the aforementioned is a medical error necessitates liability for the harm affected the newborn and his Appellant parents. The challenged judgment breached this consideration and ruled with upholding the appealed judgment saying that ((it is established from the original and supplemental reports of the Supreme Committee for Medical Liability,
which the court is reassured to, that the second Appellant complained of rash all over her body during the eighth week of pregnancy. She was examined for rubella and she was infected and that because of a previous vaccination or infection. The two reports state also that the patient’s infection with rubella during the first three months of pregnancy leads to the probability of the fetus deformation more than 80%, and the Appellant parents have the right to know the deformity that will happen to the fetus because of his mother’s infection with rubella, and that the two doctors (the third and sixth Appellees neglected in diagnosing the case and informing the Appellants about the condition which led to not giving them the right to take the procedure they deem appropriate,
given that the UAE law does not allow the Appellants to have an abortion in such a case because the child was alive at the time. Whereas this, the court concludes from the aforementioned that what the supplemental report of the Supreme Committee for Medical Liability attributed to the aforementioned Appellees in terms of negligence in diagnosing the condition of the second Appellant as she had rubella during the first three months of pregnancy and it was not the cause of her infection with this rubella. The report states that her infection was because of a previous vaccination or infection. The failure to inform the Appellants about the second Appellant’s infection with rubella during her pregnancy and the consequent deformities of the fetus after his birth is useless and does not lead to liability of the aforementioned Appellees as failure to inform the second Appellant about the case does not lead to preventing the deformation of her fetus as the deformation of the fetus is a reality of more than 80% due to her infection with rubella during the first three months of pregnancy, and notifying them of the case does not allow them the right to abort the fetus as this violates the law.
There is no medical error in the documents on the side of any Appellee, and the negligence attributed by the committee’s supplemental report to the third and sixth Appellees is not the cause of the second Appellant’s infection with rubella or the deformities of the newborn. Therefore, the documents lack any medical liability against the Appellees, and the lawsuit lacks any legal evidence and it shall be rejected….)).
These reasons do not justify the ruling conclusion as it is evident that it did not realize that after the appearance of rash in the second Appellant; the appropriate time to conduct tests which show the latter’s infection with rubella recently and confirming the health condition of the fetus and whether or not he suffers from deformities because of the second Appellant’s infection with rubella is before passing one hundred and twenty days of pregnancy, not after this period passing so that the Appellants may not miss the opportunity, in case the fetus deformity is proven to be serious and untreatable, to use their right in abortion before the soul entrance.
The medical committee supplemental report presented in the lawsuit has proved that if the mother is infected with rubella during the first three months of pregnancy, the probability of the fetus deformation is more than 80% and this can be known when an IgM examination is performed for the mother. Whereas it has been proved that the fetus had serious deformities in the ear and eye because of the second Appellant’s infection with rubella during the eighth week of pregnancy, means before the soul breathing into, due to the lack of technical care by the third and sixth Appellees to examine her condition,
therefore they failed in her care during pregnancy to discover this infection which led to the serious deformities of the fetus, and this led to the two Appellants missing their opportunity to use their right in performing the abortion operation before the soul entrance. This is considered a medical error results in medical liability. Therefore, the judgment has mistaken in applying the law and has flaws in reasoning, and this mistake prevented the judgment from determining the responsible party for this mistake and estimating the compensation for this harm, therefore it is defective and shall be quashed.
Abortion – The Medical Liability for Abortion Permitted Cases In UAE Abortion – The Medical Liability for Abortion Permitted Cases In UAE Abortion – The Medical Liability for Abortion Permitted Cases In UAE Abortion – The Medical Liability for Abortion Permitted Cases In UAE Abortion – The Medical Liability for Abortion Permitted Cases In UAE
Mohamed Mahmoud Al Marzooqi law firm
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE