The situation, when one suffers a damage, caused by organizational mistakes is frustrating. In this article, we will tell you the laws about professional malpractices, emphasizing the medical malfunctions; when they are applied, whether they are subject for appeal, whether there is an insurance, and which court is liable to make decisions.
Note that Gross negligence is not defined in the Civil Code.
General Law of negligence
Article 383 of Federal Law No. 5 of 1985 on the Civil Transactions Law of the United Arab Emirates (the Civil Code) states:
(1) if that which is required of an obligor is . . . the exercise of care in the performance of his obligation, he shall have discharged that obligation if, in the performance thereof, he exercises all such care as the reasonable man would exercise, notwithstanding that the intended object is not achieved unless there is an agreement or a provision of law to the contrary. (2) In all cases, the obligor shall remain liable for any fraud or gross negligence on his part.
This is the core Article for claims for professional negligence in the United Arab Emirates, and in case of an experience, which would be beyond ethic, or typical, there is an argument, that it may constitute gross negligence.
Under DIFC Law, tortious liability requires certain elements to be satisfied, even though they are not yet well settled in the UAE, arising from the Civil Code:
- The party at fault owed the party who suffered loss a duty of care;
- The party at fault breached the duty of care owed; and
- Damage arose as a result of the breach of the duty (causation).
UAE Medical Liability Law
UAE Federal Law on Medical Liability (Law No. 4 of 2016) (the ‘New Law’) was published in the UAE Official Gazette on 15 August 2016 and has brought several changes to the previous Medical Liability Law (Federal Law No. 10 of 2008) (the ‘Former Law’).
The New Law requires all medical malpractice claims to be referred to a new medical liability committee (‘Medical Liability Committee’) before they are reviewed by the judicial authorities in the UAE.
The law affords protection and relief to doctors in criminal proceedings by prohibiting their arrest, imprisonment, and investigation before the concerned authorities until the Medical Liability Committee issues a final report. The Law also introduces stringent penalties against medical practitioners who commit grave medical errors and other key changes.
The professional compensation insurance products in the UAE usually excludes coverage for willful misconduct, fraud or gross negligence. It means that in those instances individual at fault may be responsible for damages. Otherwise, those parties may be liable for any damages that exceed the limit of the policy.
Those who have suffered loss arising from someone else’s negligence can apply to the court for compensation by virtue of Article 389 of the Civil Code. That section states that
‘if the amount of compensation is not fixed by law or by the contract, the judge shall assess it in an amount equivalent to the damage in fact suffered at the time of the occurrence thereof’.
Further, actions for specific performance are covered by Article 338 of the Civil Code, which states that:
‘A right must be satisfied when the legal conditions rendering it due for performance exist, and if an obligor fails to perform an obligation, he shall be compelled to do so either by way of specific performance or by way of compensation in accordance with the provision of the law’.
In respect of medical negligence claims, compensation shall be payable for any harm caused to a person, pursuant to Article 299 of the Civil Code.
Given that professional negligence can arise from a breach of contract or through a breach of duty (i.e., in tort), there are two limitation periods that may apply.
The limitation period in respect of professional negligence arising from the contract is 15 years according to Article 296 of the Civil Code, and the limitation period arising from a breach of duty is three years pursuant to Article 298 of the Civil Code. The latter would also apply to medical malpractice claims.
Who is eligible to resolve
In the UAE, claims for professional negligence are typically commenced in the Court of the first instance, which has jurisdiction to hear all civil lawsuits. Further, the Dubai International Financial Centre has the jurisdiction to hear professional negligence matters and has been host to a number of high-profile cases thus far.
Aspects to note:
- If you feel treated wrong by a certain organization, feel free to apply for a case
- If you feel uncertain, whether you may claim the coverage or other help, refer for legal advice
- If you suffered certain damage — financial, health, or any other type of loss, it is definitely worth researching, what may be done
- Remember to research the basic laws of any new country, that you are visiting
- Some organizations, which caused you a damage, would advise you to refer to particular authorities to resolve the matter, but remember to ask and research before. Many organizations would advise the steps, which is beneficial to them, not for you, so you may want to decide, where to refer by your own
For a more detailed review of Negligence laws, including fields, other than medical, visit: