Volume 19, Issue 60 (4-2025)
MLJ 2025, 19(60): 812-832 |
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Attarieh S, Attarieh M A, Kalantary Daroonkola K, Saadeghi A. Evaluating the Liability of Physicians under the Scope of Differentiating the Concepts of Non-Criminal Fault or Error and Fault. MLJ 2025; 19 (60) :812-832
URL: http://ijmedicallaw.ir/article-1-1904-en.html
URL: http://ijmedicallaw.ir/article-1-1904-en.html
1- Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, Mazandaran University, Babolsar, Iran.
2- Department of Fiqh and Usul al-Fiqh, Fayziyeh Seminary, Qom, Iran.
2- Department of Fiqh and Usul al-Fiqh, Fayziyeh Seminary, Qom, Iran.
Abstract:
Background and Aim: In medical practice, consent (Rezayat) and waiver (Beraat) often create the impression that the patient loses legal protection and the physician becomes free to act without restriction. On the other hand, some physicians may fear that even after obtaining consent, they could still face imprisonment for any error, including unavoidable ones. This study examines error(qusūr), fault(taqsīr), waivers and their relationship with liability for diyah(Blood money), imprisonment and the burden of proving fault.
Method: This study was conducted using a descriptive-analytical approach based on documentary research.
Ethical Considerations: The study was prepared in accordance with human and ethical principles, including impartiality. In addition, some illustrative examples used in the research may contain medical inaccuracies, which fall outside the authors’ area of expertise. The purpose of these examples is solely to explain the concepts of error, fault, necessity and the impact of waivers and consent on the physician’s liability.
Results: Article 495 of the Islamic Penal Code, through its first note, implicitly refers to the distinction between error and fault. It also reassures physicians that if they encounter unexpected complications during a procedure, they will not be held responsible, provided they adhere to medical standards. However, the article does not provide a definition of the difference between error and fault, their relationship with Consent and waiver or the extent of the physician's liability.
Conclusion: Through a comparative study of the legal foundations of Islamic Sharia, the laws of France, and the laws of Iran, it can be inferred that in Iranian law, medical errors are categorized into error and fault. Consent and waiver are two independent matters. consent means the patient's permission for treatment, while waiver refers to the exemption of the physician from non-avoidable (non-fault) errors. Obtaining waiver does not affect the burden of proof in the case but impacts the physician's liability. A physician's mistake, if waiver is obtained, is not subject to liability. Without obtaining waiver, the physician may be sentenced to pay compensation (diyyah), but it does not lead to a punishment (such as imprisonment or an alternative penalty). On the other hand, if the damage was foreseeable to typical physicians, and the physician still acted in that manner, it constitutes fault, and obtaining waiver would be ineffective.
Please cite this article as:
Attarieh S, Attarieh MA, Kalantary Daroonkola K, Saadeghi A. Evaluating the Liability of Physicians under the Scope of Differentiating the Concepts of Non-Criminal Fault or Error and Fault. Medical Law Journal. 2025; 19: e54.
Method: This study was conducted using a descriptive-analytical approach based on documentary research.
Ethical Considerations: The study was prepared in accordance with human and ethical principles, including impartiality. In addition, some illustrative examples used in the research may contain medical inaccuracies, which fall outside the authors’ area of expertise. The purpose of these examples is solely to explain the concepts of error, fault, necessity and the impact of waivers and consent on the physician’s liability.
Results: Article 495 of the Islamic Penal Code, through its first note, implicitly refers to the distinction between error and fault. It also reassures physicians that if they encounter unexpected complications during a procedure, they will not be held responsible, provided they adhere to medical standards. However, the article does not provide a definition of the difference between error and fault, their relationship with Consent and waiver or the extent of the physician's liability.
Conclusion: Through a comparative study of the legal foundations of Islamic Sharia, the laws of France, and the laws of Iran, it can be inferred that in Iranian law, medical errors are categorized into error and fault. Consent and waiver are two independent matters. consent means the patient's permission for treatment, while waiver refers to the exemption of the physician from non-avoidable (non-fault) errors. Obtaining waiver does not affect the burden of proof in the case but impacts the physician's liability. A physician's mistake, if waiver is obtained, is not subject to liability. Without obtaining waiver, the physician may be sentenced to pay compensation (diyyah), but it does not lead to a punishment (such as imprisonment or an alternative penalty). On the other hand, if the damage was foreseeable to typical physicians, and the physician still acted in that manner, it constitutes fault, and obtaining waiver would be ineffective.
Please cite this article as:
Attarieh S, Attarieh MA, Kalantary Daroonkola K, Saadeghi A. Evaluating the Liability of Physicians under the Scope of Differentiating the Concepts of Non-Criminal Fault or Error and Fault. Medical Law Journal. 2025; 19: e54.
Keywords: Waivers, Involuntary Manslaughter, Medical Error, Misdiagnosis, Medical Law, Technical and Scientific Standards
Type of Study: Original Article |
Received: 2024/09/19 | Accepted: 2025/01/29
Received: 2024/09/19 | Accepted: 2025/01/29
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