The conceptualization of healthcare reform in Egypt invokes the futuristic remodeling of hospitals, replacing rickety beds with sophisticated medical equipment as the medical sector successfully surges forward. Still, even if all infrastructural ills are cured, one reality remains. Patients die. Treatments fail. And, sometimes, medical error is the cause. Currently, medical professionals who commit errors resulting in patient injury or death are civilly liable in accordance with Civil Code Law No. 131/1948 and are subject to criminal investigation and penalties in accordance with the Penal Code Law No. 58/1937. Recently, a draft Medical Liability Law has been circulated through Parliament and could be approved before the end of this year. Tort reform in Egypt must achieve three essential goals:
- Ensuring the speedy and efficient recovery of compensation owed to the victims of medical malpractice or their successors, if applicable.
- Creating a comprehensive malpractice insurance system in which medical professionals and institutions are jointly responsible for medical errors.
- Assessing the role of medical error in causing the patient injury with minimum bureaucracy while balancing patients’ rights with medical professionals’ discretion regarding the type of treatment provided.
The cornerstone of tortious liability in Egypt is Article 163 of the Civil Code: “Every error resulting in damages to a third party requires compensation from the liable party”. Tortious responsibility in Egypt is hence composed of three elements: the error, the damage, and the causal relationship between the two. The simplest element to ascertain in medical malpractice is the damage. However, given the unpredictability and variances in acceptable treatment methods, it is difficult to differentiate between medical error and prognostic uncertainty or inevitability. In other words, should a doctor be held responsible if he commits an error that leads to the premature death of a terminal patient? Should he be held responsible if he prescribes a course of treatment commonly accepted in Egypt, but in violation of standard World Health Organization (WHO) practice?
The current answer to that question is that individuals are not responsible under Egyptian law if the damage resulted from a negative externality beyond their control. As of now, medical torts are a sub-category of civil torts. The draft law would define medical tortious liability as “the civil obligations for which a medical service provider is liable resulting from a medical procedure”. This definition has several shortcomings. First, the law restricts medical liability to licensed medical service providers. In practice, unlicensed medical students often provide treatment in teaching hospitals. Does this law, then, confer medical liability on the senior practitioner, or does it create a liability coverage gap? Furthermore, it creates a confusing sub-category- “medical service provider liability”, which is the civil, criminal, or internal responsibility resulting from the provider’s error, which is subject to the criminal law. Ideally, there would be only one category of medical tortious responsibility, and the civil and criminal penalties would differ in accordance with the gravity of the error and the risk of the medical procedure.