Pointers on UAE Medical Malpractice Claims
Kennedys’ Rishi Sengupta and Kelsey Evans explore the medical malpractice legal landscape in the UAE and how it relates to claimants and insurers.
This article summarises basic points of law and procedure relevant to medical malpractice claims in the United Arab Emirates (UAE) outside the financial free zones (such as the Dubai International Financial Centre (DIFC) or the Abu Dhabi Global Markets (ADGM)), and may be of interest to medical professionals and medical malpractice insurers.
Civil Law System
The UAE operates a codified civil law system and not a common law system (which is currently prevalent within the free zones of the DIFC and the ADGM). In a civil law system, statutes are the primary source of law, and there is no precedent system. Previous decisions of higher courts may be referred to, but have only persuasive value.
The Medical Liability Law
Medical malpractice claims are governed by Federal Decree Law No 4 of 2016 on Medical Liability (the “Medical Liability Law”) and Cabinet Decision No 40 of 2019 on the implementing regulation of the Medical Liability Law (the “Medical Liability Regulation”). The Medical Liability Law:
- stipulates what constitutes a “medical error”;
- establishes medical liability committees to opine on medical malpractice cases prior to court litigations;
- sets out the procedures for filing complaints, response times and appeals; and
- mandates medical malpractice insurance for practising medical facilities and professionals in the UAE.
Medical Liability Committees
The medical liability committee is mandated to analyse any medical malpractice complaint in the UAE. It is composed of medical specialists and examines the complaints referred to it by the public prosecutor, courts or medical regulators – the Dubai Health Authority (DHA) or Health Authority of Abu Dhabi (HAAD).
Any complaint against a medical professional is made to the relevant medical regulator, which then refers the matter to a medical liability committee. Once a claim is referred to a medical liability committee, it must issue its reasoned report within 30 days. This deadline can be extended at the medical regulator’s discretion.
“It is common for a UAE court to adopt the medical liability committee’s decision.”
The medical liability committee’s reports can be appealed by either party within 30 days from the date of receiving notification of the report. Appeals are referred to the higher medical liability committee, which will issue a report that is final and binding.
Jurisdiction for Medical Malpractice Disputes
UAE courts have inherent jurisdiction over UAE citizens and residents. Such jurisdiction cannot be excluded, save that parties can agree to refer disputes to arbitration, or to DIFC or ADGM courts. The jurisdiction of a particular court depends on where the defendant is based or where the medical service was provided.
Any claim/litigation (criminal or civil) for medical malpractice or medical negligence must first be considered by the medical liability committee. Following a final finding by the medical liability committee – usually a conclusion of “no error”, “minor error” or “major/serious error” – a claimant/injured party can then seek indemnity or damages by approaching a court. Any direct approach to the public prosecutor/court will only lead to the public prosecutor/court referring the claim/complaint to the medical liability committee.
Once the medical liability committee has issued its decision, the claimant/injured party can submit a complaint to the public prosecutor and/or bring civil proceedings against the medical facility and/or professional(s), as below.
A reference to the public prosecutor, which is the precursor for any criminal proceedings against the medical professional(s), is possible if the medical liability committee has concluded that there was a “serious medical error” by the medical practitioner(s). Following this, the public prosecutor shall carry out its investigation and proceed with criminal prosecution by issuing its judgment, which may include a sentence of imprisonment and/or a fine.
A claimant is also entitled to bring separate civil proceedings against the medical practitioner(s), but this will only be possible once the criminal court has issued a final decision.
Civil claim before a court
A claimant/injured party can bring a civil claim against the medical practitioner(s) before a civil court. There are three layers of courts – the Courts of First Instance, Appeal and Cassation.
There have been occasions where court proceedings were commenced while the medical professional(s) had appealed to the higher medical liability committee. In such a situation, the court stays proceedings until the higher medical liability committee issues its decision. After issuance of such decision, one or both parties must request the court to resume the proceedings, and the court will proceed to issue a judgment.
It is common for a UAE court to adopt the medical liability committee’s decision. Therefore, it is often the case that the court only looks into the quantum of a particular claim. For the quantum, the claimant can claim usual damages and moral damages, but it is incumbent on the claimant to prove the extent of damages.
Claims Against Medical Facilities
A claimant can also claim against a medical facility where the medical professional(s) performed the services and was negligent. However, a claim against a medical facility only occurs before a civil court – ie, not before the medical liability committee and generally not in criminal proceedings.
If the medical liability committee deems the medical professional(s) liable for either a “serious” or “minor” medical error, and the claimant claims against the medical professional(s) and the medical facility before a UAE civil court for damages, the court is likely to hold the medical facility vicariously liable for the actions of the medical professional(s), and require that both the medical professional(s) and the medical facility are jointly liable.
Direct Claims by Third Parties Against Insurers
Medical malpractice insurance is a specialist type of professional liability insurance, specifically designed to protect medical practitioners and medical facilities from claims or lawsuits in respect of personal injury or death arising from acts of negligence, error or omission in their professional duties. It is a requirement under UAE law for medical professionals and medical facilities to obtain medical malpractice insurance cover.
There is no rule or law that prevents an injured third-party claimant from bringing direct proceedings against the medical liability insurers of the defendant medical facility and/or medical professional(s), and this sometimes occurs.
Medical malpractice insurance may be reinsured by the insurer. A claimant cannot claim directly from the reinsurer, unless this is specifically provided for in the reinsurance policy, or following an assignment by the insurer.
Limitation Period/Time Bar
The limitation period for claims arising from a breach of duty such as medical duty is three years from the date when the injured party first became aware of:
- the injury; and
- the identity of the responsible party.
Provisions within the UAE Civil Code allow for limitation periods to be suspended in the event of a “lawful excuse”, or due to circumstances outside a party’s control. In addition, limitation periods in the UAE can be interrupted/suspended/restarted by actions of the parties, such as by acknowledgment of liability and issuance of a notarised legal notice.
If you have any questions, please contact this article’s authors.