Stephen Ballantineis a medical malpractice and insurance specialist at the Dubai and Abu Dhabi-based local advocates' firm of Galadari & Associates.
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Q: I run an Abu Dhabi based general practice, but I am due to retire next year. Should I retain my malpractice insurance after retirement, and if so, for how long?"
For a number of reasons, my initial response would be an unqualified ‘Yes'.
If you intend to continue to play some future ownership or managerial role in your practice it would be sensible to maintain your (full or part) malpractice cover. Depending upon the exact nature of your role, this might be as a co-insured or as a principal in your own right. But even if you intend to close your practice on retirement, you should consider retaining cover for a period of up to three further years.
UAE Federal Law states that a civil claim for damages arising from medical malpractice must be filed in court within three years from the date the malpractice occurred (this period may be extended in special circumstances). If the claim is not filed in court within the three-year period, and in the absence of special circumstances, the defendant has a more or less complete defence to the claim. The term for a claim in these circumstances is ‘time-barred'. Despite this, it is usual for most malpractice policies to provide coverage for any claims that occurred - that the insurer was notified of - within the policy period. This is generally a twelve-month period.
If, during the insurance period, events take place that could later give rise to a claim, but the potential plaintiff - let's call him ‘Mr X' - does not make a formal complaint to you, it's likely you're still contractually obliged to notify your insurer of the possible error. Even if you're not, it is advisable to inform your insurer in writing of any circumstances that may lead to a claim for medical malpractice. This practice should be followed, even if Mr X does not make any complaint against you, in writing or otherwise.
A second scenario to consider may be that you reasonably felt a patient to have been treated successfully and that, in the absence of a complaint from him or her, you weren't at risk of a claim. Retirement comes along and you let your malpractice cover expire. One year on, you receive a court summons issued by the patient naming you as a defendant in a medical malpractice claim. Your insurer is arguably entitled to refuse to cover your claim as you failed to notify them within the policy period, even if this is because you were unaware of any perceived error.
Some policies, such as the Medlib policy issued by Oman Insurance PSC, allows for an agreed "extended reporting period" after cover expires, subject to the payment of an additional premium. This is sometimes also referred to as a "discovery period". It means that claims arising from the insurance period, but not reported within it, can be declared to the insurer within this extended period. The insurer will, subject to terms and conditions, accept the claim as if it was made within the original insurance period.
The duration of this extended reporting period would, obviously, be subject to a commercial agreement between you and the insurer. However, an extended period of three years following the expiry of your cover should be considered prudent. An experienced broker should be able to help you to help find the best deal available in the market.
The answers provided in this feature are for information purposes only, and intended to provide general guidance. They should not be relied upon by readers, who should seek further professional advice.
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