Amid controversy, the Egyptian parliament passed, on Tuesday, the medical liability law, the first of its kind in the country’s history, after lengthy discussions that lasted for months and wide objections from doctors. The law aims to regulate the legal relationship between doctor and patient and to establish a clear framework for accountability in cases of medical errors, while ensuring that criminal penalties against doctors are not excessive. Among the most controversial provisions were the articles on imprisoning doctors for gross medical errors, which prompted parliament to amend some of the wording in response to the demands of the Doctors’ Syndicate and health sector experts.
The doctors’ mobilisation over the past months succeeded in securing several fundamental amendments to the controversial draft law, most notably the cancellation of the penalty of imprisonment for doctors in cases of professional errors and the cancellation of their pretrial detention, in addition to establishing a clear definition of medical error and distinguishing between it and gross medical error. It was also affirmed that the Supreme Committee for Medical Liability will be the competent technical body providing expertise to the judicial and investigating authorities, and the body responsible for issuing technical reports on professional errors. The amendments also included changing the name of the draft law to the “Medical Liability and Patient Safety Law” instead of “Patient Protection”.
During the final plenary session to discuss the law, held on Tuesday, parliament approved reducing the fine in cases of non-gross medical error, that is, the ordinary error that may occur, to a range of between EGP 10,000 and EGP 100,000, instead of the previous range of between EGP 100,000 and EGP 1 million.
While doctors who spoke to us consider that the law places increasing pressure on a medical sector that has suffered from severe sluggishness in the recent period and faces numerous problems related to the situation of doctors in general, the government for its part says the law is balanced and aims to regulate the legal relationship between doctor and patient, in a way that helps strengthen trust between all parties in the health system and pushes towards further development and stability in the medical sector, according to the statements of Health Minister Khaled Abdel Ghaffar during the parliamentary session held to discuss the law.
What are the main provisions of the law?
The new medical liability law, consisting of 29 articles, included several controls aimed at protecting the rights of medical service providers and of patients. The law provided that medical liability is negated in specific cases, among them: if the harm suffered by the patient is one of the scientifically known medical complications; if the service provider followed a method consistent with established scientific principles, even if in doing so he differed from other doctors in the same specialty; or if the harm resulted from the conduct of the patient himself, such as his refusal of treatment or his failure to comply with the medical instructions given to him.
The law also provided for the establishment of a government insurance fund to protect medical service providers from the risks arising from medical errors, whether through direct insurance or by contracting with insurance companies or with an insurance pool whose establishment is approved by the Financial Regulatory Authority. The fund aims to compensate patients for damages resulting from medical errors, including cases of death, disability and physical injury, in accordance with the insurance policy. Compensation is paid on the basis of an amicable settlement or after a final court ruling is issued, and the board of directors of the Financial Regulatory Authority issues a decision setting the conditions and controls of the insurance, its categories and its prices.
With regard to the protection of medical service providers, the law stressed the criminalisation of assaults on them while they perform their work: anyone who insults a doctor or a medical service provider by gesture, word or threat while he is performing his work is punished with imprisonment for a period not exceeding six months or a fine of up to EGP 10,000. Anyone who deliberately damages the property of medical facilities or assaults a medical service provider by attack or violence is punished with imprisonment for up to a year or a fine not exceeding EGP 50,000. If weapons or dangerous tools are used during the assault, the penalty is increased to imprisonment for no less than a year, and the offender is obliged to pay the value of the damage he caused.
According to the law, a supreme committee will be established under the name “the Supreme Committee for Medical Liability and Patient Safety”, which will be the competent advisory body for assessing medical errors. The committee will examine complaints relating to these errors, in addition to creating a comprehensive database and issuing guidance manuals to make patients aware of their rights, and it will also work to set up a system of amicable settlement between medical service providers and patients, with the aim of reducing the suffering of service recipients and easing their burdens, while ensuring that the time and effort of doctors and medical workers are preserved.
For its part, the Egyptian Doctors’ Syndicate thanked the Speaker of the House of Representatives and its members for their role in introducing fundamental amendments to the draft law, ensuring a safe working environment for doctors that enables them to provide the best health care to patients, as it put it. The head of the Doctors’ Syndicate, Osama Abdel Hay, explained in a statement that the amendments affirmed that the Supreme Committee for Medical Liability will be the technical expert for the investigating authorities and the courts in cases related to medical errors.
He added: “As for the proposal to oblige the Public Prosecution not to begin investigations in medical error cases until after the Supreme Committee’s report has been issued, the government explained that including this condition in the text of the law might conflict with the Constitution, since it restricts the prosecution’s authority to begin investigations. Nevertheless, the House of Representatives approved the proposal in principle, and it was entered in the House’s minutes, with parliament affirming that it will write to the Attorney General as soon as the law is issued, so that he issues instructions not to hear the doctor’s statements until after the Supreme Committee’s report.”
The law also provided that medical liability is negated in cases where the harm results from recognised medical complications, in addition to distinguishing between ordinary medical error and gross error by establishing a clear definition of gross error, according to the head of the Doctors’ Syndicate. The law specified that ordinary medical errors will be subject only to financial penalties, without imprisonment, while gross medical errors may warrant criminal penalties including imprisonment, a fine or both, in addition to compensation for the harmed patient.
The head of the Doctors’ Syndicate pointed to the introduction of a new article punishing malicious complaints filed against doctors: anyone who in bad faith files a false report against a doctor or a medical facility, even if no criminal case results from it, is punished with imprisonment for a period not exceeding three months, or a fine not exceeding EGP 30,000, or one of the two penalties. The Doctors’ Syndicate reaffirmed its commitment to supporting doctors’ rights and improving their working conditions, to ensure that the best medical service is provided to patients. It also expressed its hope for continued cooperation with the relevant bodies to ensure the optimal application of the law, in a way that promotes a safe working environment for doctors and preserves patients’ right to high-quality health care.
What are the law’s drawbacks and merits?
Ibrahim El-Zayat, a member of the Doctors’ Syndicate council, says in a conversation with Zawia3 that the medical liability law is an important step towards regulating the profession, but it faces many problems that may negatively affect doctors and the health sector in general; although it contains some positive articles, these came in vague wording that may open the door to interpretations and readings that affect the practical application of the law.
El-Zayat explains that the most prominent positive articles in the law include the formation of a medical liability committee to act as a technical expert in investigations, which helps provide a specialised professional view when complaints are examined. The law also provides for the establishment of a fund for insurance against professional errors, which is considered a positive step towards providing an umbrella of protection for doctors. Among the positives, too, is the cancellation of the penalty of imprisonment for ordinary medical errors, unless the error is characterised as gross, as well as the imposition of penalties for false reports, despite the difficulty of applying this provision in practice. But even these articles that seem positive were drafted in an unclear way, which may empty them of their actual substance when applied.
The first of the drawbacks relates to the definition of gross medical error, as the first article provides that it is an error that reaches such a degree of gravity that the harm resulting from it is certain, including committing the error under the influence of an intoxicant or a drug, or refraining from requesting assistance despite being able to do so. This wording, according to El-Zayat, remains loose because of the use of the phrase “in particular” instead of “exclusively”, which may open the door to uncontrolled interpretations; moreover, considering a failure to request assistance a medical error without making the technical report of the Medical Liability Committee binding may lead to inaccurate assessments.
El-Zayat points out, speaking to us, that Article 7 represents another predicament, as it prohibits performing non-urgent surgery unless the doctor is qualified according to his specialisation and the clinical privileges approved by the Egyptian Health Council, provided that the interventions are carried out in adequately equipped facilities. He explains that the problem here is that the clinical privileges system has not yet been put into operation in Egypt, so how can doctors be held accountable for something that is not applied? Moreover, punishing the doctor because the facility is not ready is illogical, because the responsibility here should fall on the facility, not the doctor.
As for Article 12, although it allows complaints about medical errors to be submitted to the technical secretariat of the Supreme Committee, it contains a serious loophole: it does not oblige the complainant to go to the committee first before turning to the prosecution, which may expose doctors to lengthy investigations even before it is established that a medical error occurred in the first place.
In Article 18, the law provides that the Supreme Committee for Medical Liability will be the technical expert in investigations and trials, but it does not stipulate that its report will be binding, which leaves room for investigating authorities to rely on other reports that may be unspecialised or inaccurate, further complicating medical cases.
El-Zayat explains: “Articles 20 and 21, on the establishment of a government insurance fund against medical errors, contain fundamental loopholes, as the law does not explicitly clarify the extent to which the fund covers compensation, nor does it provide for coverage of fines, which raises concern about the nature of the insurance and how effective it will be in protecting doctors. More dangerous still, the law leaves the door open to the possibility of the fund’s money being used for purposes other than compensation for medical errors.”
Illogical penalties
The member of the Doctors’ Syndicate council points out, speaking to us, that Article 23 raises a major legal problem, as it provides that “without prejudice to any harsher penalty in any other law”, which means that the doctor may be tried under articles of the Penal Code and not only under the medical liability law, even though the principle is that the special law should restrict the general one.
As for protecting doctors from assaults, Articles 24 and 25, which criminalise assaults on doctors and medical facilities, came with feeble penalties, as the penalty does not exceed imprisonment for six months or a fine not exceeding EGP 50,000, which does not constitute a real deterrent, especially when compared with similar laws in other countries such as Saudi Arabia, where the penalty for assaulting doctors reaches ten years in prison and a fine of SAR 1 million.
He adds: “The crisis worsens with Article 26, which imposes severe penalties on doctors for violating certain procedures, such as failing to obtain the patient’s consent or to carry out the necessary tests, or working in an unequipped facility. These penalties extend to imprisonment and fines, even though equipping facilities is the responsibility of the administration, not the doctor, which means holding doctors responsible for errors to which they are not a party”, explaining that Article 27 imposes a fine of up to EGP 100,000 on the doctor in the event of a non-gross medical error, which is illogical, since this fine will not go to the patient but to the state treasury, raising questions about the actual purpose of the penalty. Moreover, high fines may push young doctors into prison if they are unable to pay them.
Regarding Article 29, which imposes a penalty for filing a false report against a doctor, El-Zayat says it seems good on the surface, but in practice it will be difficult to prove bad intent in malicious reports, which makes applying this penalty almost impossible. He affirms that despite what is said about the possibility of remedying these problems through the executive regulations, the truth is that the regulations cannot amend or contradict any provision of the law. Therefore, passing the law in its current form means that doctors will continue to face legal risks that may lead them to shy away from practising the profession or to emigrate, which may seriously affect the health system in Egypt.
Mona Mina, former secretary-general of the Doctors’ Syndicate, agrees with him, affirming in a conversation with Zawia3 that the medical accountability law has not freed doctors from being subject to the Penal Code, as Article 23 still opens the door to applying any harsher penalty provided for by any other law. Thus the sword of imprisonment, whether pretrial or punitive, remains hanging over doctors’ necks for any medical error, according to any legal characterisation under which the doctor becomes subject to other laws.
She adds: “A minor or ordinary medical error has become criminally punishable, as the doctor is fined up to EGP 100,000, paid to the state treasury and not to the patient or his family. This penalty is paid by the convicted defendant, and if he is unable to pay, he faces prison. After that, the patient or his relatives have the right to file a civil compensation suit against the doctor, without any regulation setting a ceiling on this compensation, which leaves its value open to unknown possibilities.”
She continues, in protest: “It is incomprehensible that a doctor should be criminally punished for an ordinary medical error and fined in favour of the state, something that has no parallel anywhere in the world. Likewise, the fine, even though it was reduced from EGP 1 million to EGP 100,000, remains an exorbitant sum for doctors. How many doctors can afford to pay EGP 100,000 for every ordinary medical error?!”
Mona points out, speaking to us, that with regard to compensation, doctors and medical teams have been obliged to subscribe to a fund for insurance against professional errors as a condition for obtaining a licence to practise the profession, a system in force in many countries. But the essential difference is that in all countries this fund bears the compensation in full, while in Egypt it only “contributes” to the payment, without a full commitment to bear the compensation! The result is that the doctor, after paying a monthly subscription to the fund, will find himself forced to pay a fine that may reach EGP 100,000, then financial compensation to the patient, because the insurance will not cover the full compensation, and finally he may face prison, because the law did not abolish the possibility of applying any harsher penalty in any other law!
She continues: “There is talk that the law protects doctors through the committee for determining medical liability, which decides whether an error is an ordinary medical error or a gross one. But the problem is that this committee’s opinion is not binding on the court, and even the prosecution does not wait for its report before starting investigations! So what is the point of this committee if its opinion has no effect on the course of cases?! More dangerous still, the law did not establish any penalty for the hospital if the harm to the patient resulted from a lack of resources or an administrative failure, because accountability falls only on the doctor, even if the error was the result of circumstances beyond his control.”
Mona says that the article punishing patients in the case of malicious complaints was drafted in a way that makes it difficult to apply in practice, as it requires proof of bad intent, which in most cases is legally impossible to prove, rendering this article useless, adding: “In an incomprehensible paradox, the penalty for medical error is higher than the penalty for assaulting hospitals and medical teams, contrary to all the laws in force worldwide, which give strict protection to medical staff against any assault”, affirming that the law has not protected doctors as is being promoted, but has placed them under unprecedented legal and financial pressure, preserved the possibility of imprisoning them, imposed undefined compensation on them, and left them without real protection in the face of patients’ complaints and the structural problems in hospitals.
The Egyptian Penal Code contains no article directly devoted to “medical error” or “medical negligence” by name. However, general articles of the law are relied upon to cover cases of medical error or negligence, the most important being Articles 244 and 238 of the Penal Code. (Article 244) stipulates that “whoever unintentionally and without deliberation causes the wounding of another, as a result of recklessness, lack of precaution and care, negligence, inattention or non-observance of regulations, shall be punished with imprisonment for a period not exceeding six months or a fine not exceeding EGP 10.” And (Article 238) stipulates that “any person who causes by error the death of another person as a result of his negligence, recklessness, lack of caution or non-observance of laws, decisions, regulations and rules shall be punished with imprisonment for a period of no less than six months and a fine not exceeding EGP 200, or one of these two penalties.”
A report issued by the Multaqa El-Hewar Foundation for Development (an Egyptian human rights organisation) in October 2023 indicates that the number of medical errors in Egypt amounts to 180,000 cases a year, and that about 20 doctors are struck off the Doctors’ Syndicate register every year because of medical errors.
Controversy over the implementation mechanism
Tamer Samir Abou El-Saad, professor of speech and swallowing disorders at the Faculty of Medicine, Mansoura University, and president of the International Society for Speech Sciences and Disorders, affirms in a conversation with Zawia3 that the new law in its current state has improved considerably compared with the initial draft, which contained many loopholes, noting that the amendments made have helped correct many contentious points. He explains that he still has some reservations, especially regarding the financial fines imposed on doctors, but that the introduction of the “insurance fund” as a body that bears these fines has helped ease the severity of the problem. He adds: “The details relating to this matter must be clear in the law’s executive regulations, because they will determine precisely how it is applied.”
Regarding the investigations that may reach doctors, he stresses the need for the Medical Liability Committee to have an advisory role that is binding on the prosecution, so that the doctor is not summoned directly over any complaint before its seriousness has been examined. He says: “The prosecution has the right to investigate any incident, but the opinion of the medical committee must be the basis on which the prosecution and the judiciary rely when ruling on cases related to medical errors.”
Abou El-Saad points out that the success of the new law depends primarily on how it is applied, calling on the state, doctors and insurance companies to deal with it with great caution to ensure a balance between the rights of patients and the rights of doctors. He adds: “The law aims to regulate the relationship between the two parties, but if it is applied wrongly, it may cause problems that affect the quality of medical care in Egypt”, noting that the existence of a clear legal framework protecting doctors from malicious complaints is a positive step, but affirming that actual experience on the ground will reveal how effective the law is and how it affects doctors’ performance in hospitals, especially in emergency cases that require quick decisions which may result in unexpected complications.
He affirms that the law is a good step towards regulating the relationship between doctors and patients, but that its success depends on sound application and clear executive regulations, in addition to the need to work on improving the working environment for doctors to ensure the provision of advanced and sustainable health services in Egypt.
Does the law solve doctors’ problems?
Asked about the most prominent challenges doctors face, and whether the law will help overcome them, Dr Tamer Abou El-Saad says that the crisis of doctors’ low wages in Egypt is one of the most prominent problems facing the medical sector. He says: “Doctors’ wages in Egypt are very low compared with other professions inside the country, in addition to the huge gap between what an Egyptian doctor earns and what their counterparts abroad receive.”
He adds that doctors in Egypt work out of passion and professional commitment, but the new generations have come to face great difficulties because of unfair wages, which pushes many outstanding doctors to emigrate to work abroad. He affirms that the continuation of this phenomenon may lead to a decline in the quality of health services in Egypt in the long term, calling on the government to reconsider the doctors’ wage system and pointing out that improving salaries will ensure that medical talent remains inside the country and will preserve the level of health services provided to citizens. He says: “The mass emigration of doctors is not merely an individual loss; it is a threat to the entire health system, and it must be addressed before the crisis worsens.”
The health sector sees 12 doctors resign every day, according to official data issued by the Ministry of Health, and Dr Khaled Amin, assistant secretary-general of the Doctors’ Syndicate, considers that the medical liability law has heightened doctors’ fears in the recent period and is one of the reasons for Egyptian doctors emigrating to work outside Egypt, affirming that anaesthesia, intensive care and cardiac surgery are the specialties most affected by doctors’ resignations. Egypt faces a major crisis of doctor shortages, as the rate of doctors stands at 8.6 doctors per 10,000 citizens, that is, fewer than one doctor per 500 citizens, while the global rate is about 23 doctors per 10,000 citizens. This shortage raises important questions about how the authorities are dealing with this worsening crisis.
According to Ministry of Health data, about 9,000 doctors graduate every year, but more than 60% of them choose to work outside Egypt. In 2018, a government study warned of a decline in the number of working doctors, showing that of 213,000 doctors licensed to practise the profession, only 82,000 actually work in the various health bodies, representing only 38% of the core workforce. These figures highlight the crisis of doctors emigrating abroad and leaving Egypt’s health system in a state of shortage. The Central Agency for Public Mobilisation and Statistics also reported a decline in the number of doctors to 97,400 in 2022, compared with 100,700 in 2021, a decrease of 3.3%. Meanwhile, Egyptian Doctors’ Syndicate data stated that about 11,536 doctors resigned from government work in just three years, in the period from 2019 until March 2022. According to those data, 2022 saw the resignation of more than 4,300 Egyptian doctors working in government hospitals, the largest number in the past seven years, at a rate of up to 13.5 doctors every day, as the number quadrupled from 1,044 resignations in 2016 to 4,127 resignations in 2021.
According to the Egyptian Doctors’ Syndicate, the average salary of a resident doctor in Egypt in 2022 was about EGP 3,700, and the average pension of a doctor after about 35 years of government work is EGP 2,300, while the Health Insurance Organisation indicated that the average salary of a doctor in the comprehensive health insurance system, which has been applied in some of Egypt’s governorates, reaches EGP 17,000 a month.
In April 2022, the Egyptian Doctors’ Syndicate issued a report entitled “The Doctors’ Syndicate sounds the alarm”, in which it warned of doctors’ continuing reluctance to work in the government sector and their growing efforts to emigrate abroad. But it seems the authorities have not paid attention to the need to put in place laws that strengthen doctors’ ability to practise their profession in Egypt, in a working environment they consider safe economically, in terms of security and psychologically, at a time when the authorities have sought, as described by doctors we spoke to, to impose further restrictions on doctors without regard to their living and professional conditions.
The new medical liability law is stirring controversy in medical and legislative circles, as opinions differ over its impact on the medical profession and the future of the relationship between doctors and patients. While the government sees it as a necessary step to regulate the health sector and protect everyone’s rights, doctors express their fears about some articles that may constitute an additional burden on them. As the law begins to be applied, its effectiveness will remain dependent on how it is implemented on the ground, and on the extent to which it strikes a balance between accountability for medical errors and guaranteeing a safe working environment for doctors, amid major challenges facing the health system in Egypt.
Editorial correction: The first version of the report stated that the committee the law provides for establishing is named “the Supreme Committee for Medical Liability and Patient Protection”; the correct name is “the Supreme Committee for Medical Liability and Patient Safety”, according to Article 9 of the law in the version passed by the House of Representatives.
