Examining the doctor's responsibility in surgery by looking at jurisprudence

Subject Areas : Nameh Elahiyat

mohammadkazem  rostami kafaki ¹ (PhD student of Islamic Azad University, Tehran branch, center, Iran)
ebrahim  yaghoti ² (Assistant Professor, Fiqh and Islamic Law Department, Islamic Azad University, Tehran Center, Tehran, Iran)
amrollah  nikomanesh ³ (Assistant Professor, Fiqh and Islamic Law Department, Islamic Azad University, Tehran Center, Tehran, Iran)

Received: 2023-06-10 Accepted : 2023-07-15 Published : 2023-03-21

Keywords: Criminal Liability, Islamic jurisprudence, Civil liability, medical error, doctor', s obligation and responsibility,

Abstract :

The civil liability of the doctor, as one of the discussed categories in the field of civil liability and private rights, is very important. Civil liability in Iranian law is based on the theory of loss and accrual, according to the majority of jurisprudence. Based on this, most of the jurists have justified the doctor's responsibility by relying on these two rules. The result of this is that the doctor is responsible in any case if he is responsible for harming the patient, whether it is prescribing the wrong medicine, or negligence in surgery, etc. It is known, and in case of incurring a loss, he is liable only in the case that he is at fault.According to the review of the historical course of the approved laws regarding the responsibility of the doctor in Iranian law, according to the Penal Law of 2012, if the doctor is not at fault in knowledge and action, there is no guarantee for him, even if he has not been acquitted (Comment 1, Article 495); In fact, the new penal law has accepted the basis of guilt. This is despite the fact that before this, the doctor was the guarantor of any damage caused to the patient during the treatment, even if he did not commit negligence.