Doctors say new law would criminalize reasonable medical error, call on politicians to intervene

A new bill that would alter the legal approach to medical malpractice is causing a stir among doctors.

If passed, the bill could see doctors land in prison for up to five years in the event that a patient dies under their care.

But many doctors believe that the current law isn’t clear in defining what constitutes standard professional error as opposed to gross negligence and places exclusive blame for errors at the door of medics.

As a result, the current version of the law would leave doctors vulnerable to jail time or huge fines, they say, and would lay out a concept of medical liability that elides the role of hospitals, medical suppliers, and pharmaceutical companies in patient care.

The new law, prepared by the Cabinet, lays out definitions for medical malpractice, tasks a judicial committee with determining when malpractice has occurred and stipulates punishments for doctors found guilty. A round of modifications in the House of Representatives limited the cases in which prison would be a viable punishment, but many believe the bill is still inadequate.

A general assembly of the Doctors Syndicate scheduled to address the law earlier this month was cancelled by the president due to “security pressure,” according to a source in the syndicate council who spoke to Mada Masr on condition of anonymity at the time, sparking resignations from some of the syndicates most senior members.

Regardless, the Doctors Syndicate made a new move on Sunday to intervene, requesting a hearing in the House and listing amendments the syndicate recommends lawmakers should introduce when the bill is presented to the House’s general session — a date yet to be determined.

One of the syndicate's outstanding demands is to scrap the punitive fines in the law, syndicate council member Abu Bakr al-Qadi said. “As a doctor,” he explained, “I can’t afford to pay LE1 million or even LE100,000, I’d end up in jail.”

An earlier version of the law was even more draconian, laying out prison sentences starting from six months or fines starting at LE100,000 for doctors whose malpractice results in the death of a patient. The Senate approved the harsher version of the law. 

But when the text progressed to the preliminary committee stage at the House of Representatives at the end of December, lawmakers in the specialized committee on health affairs gave further definition to what would qualify as prisonworthy, specifying that only gross malpractice would warrant a jail sentence.

Qadi said more clarity is still needed, however, to prevent doctors from being wrongfully exposed to severe punishments. Medical malpractice falls into two categories, he explained: standard medical error and gross negligence. Qadi said gross negligence is the only category that should carry criminal penalties and that it should be clearly defined to ensure accountability for cases where doctors act outside their specialty or under the influence of drugs or alcohol.

But doctors can also make errors in the course of their work while still adhering to international protocols within their specialties, and these cases, Qadi argues, should undergo medical assessment, not criminal investigation. The current version of the law would still see medics who make standard errors in their practice liable for major fines.

Qadi also argued that the law should ensure that the supreme medical committee is stipulated as the body that will classify whether incidents of harm were due to gross negligence or likely error before investigations are initiated against doctors. This step would determine whether the liability should be treated as civil or criminal.

A separate appeal about the law, which 640 doctors signed and sent to President Abdel Fattah al-Sisi on Sunday, identifies similar issues: the lack of definition for gross medical negligence and the need to empower the supreme medical committee to decide when such negligence has or has not taken place.

Mohamed Moqbel is a former general syndicate council member and was among the 640 doctors who signed the appeal. Moqbel explained to Mada Masr that lawmakers often argue that it is unconstitutional for a medical body like the supreme committee to classify when offenses have taken place rather than a judicial body.

However, Moqbel noted that, globally, the nature and classification of alleged medical malpractice — be it complications of illness, likely errors, or gross negligence — are determined by medical professionals specializing in the relevant fields. Moqbel said that a specialized medical committee should be tasked with evaluating incidents and preparing reports for investigative and judicial bodies to act upon.

Moqbel stressed that the current draft would spur the exodus of doctors already turning away from public hospitals  grappling with limited resources and supplies, “working with next to nothing, trying to deliver healthcare with the bare minimum.”

“We’re not working in Dar al-Fouad or similarly well-equipped hospitals. If the law is enacted as it is, I’ll have no choice but to stop providing healthcare services until the necessary medical supplies and resources are made available, particularly for critical cases.” 

Moqbel warned that, under the proposed law, many doctors would also prioritize caution and refrain from taking risks. “Doctors will end up transferring patients from one hospital to another to avoid liability,” he said.

The amendments proposed in the open letter to the president also include adding a clear provision extending the law to cover both healthcare providers and medical facilities, whether Egyptian or foreign. This demand, Moqbel said, has to do with the recent hospital leasing law that expanded permissions for foreigners to work in hospitals, including public ones. However, the current draft law fails to ensure equal treatment for foreign and Egyptian healthcare providers in cases of medical malpractice.

Other proposed amendments aim to expand the concept of liability put forward by the law. Hospital administrations should be held accountable for ensuring their facilities are properly equipped, argue several doctors.

Former Doctors Syndicate Secretary-General Mohamed Badawy elaborated, saying, “Unfortunately, the law as drafted places all the responsibility solely on the doctor, without even including the medical institution.”

Badawy pointed out that the law should clearly assign medical liability between the doctor, the healthcare facility, the anesthetist, and the nursing staff. “None of this exists in the current draft,” he said.

Right to Medicine Center Director Mahmoud Fouad agreed, adding that liability is much wider than the immediate medical staff.

In Fouad’s opinion, a clause should be added to the bill to address pharmaceutical companies in cases where complications arise from drugs or medical supplies. He proposed allocating a percentage of these companies’ revenues to a compensation fund, noting that pharmaceutical companies are integral partners in all procedures performed by medical teams. “Many medications and medical supplies do not meet the required medical specifications,” he said. “Therefore, pharmaceutical companies are a key stakeholder in the medical liability law, particularly as they play a critical role in operating rooms,” he added.