1 2008-4390 Dr. Mahmoud Abbasi 500 The legal nature of relation between Physician and Patient and its Cause Sadat Akhavi Seyed Mohsen 1 10 2011 5 18 11 40 02 06 2011 05 08 2011 A glimpse on the writings that have addressed the relation between the physician and the patient shows that how the physician’s responsibility has appropriated most topics. Whenever the stage before it i.e. the physician’s obligations towards the patient were noticed, the looks have been focusing on the very obligation and its subject that ultimately leads to the responsibility. In this paper, it is tried to show that we have to deal with the legal nature of the relation before raising the topics on the physician’s obligations and their breach relying on the legal and juridical fundamentals in the law of contracts. For analyzing the legal nature of relation, it should be distinguished from the subsidiary law and obligations of that relation. It is natural that if the legal nature or the main implication of a relation that have been created due to legal cause are an obligation, the parties’ obligations and rights may be discussed in analyzing this relation. But we believe that the patient’s and the physician’s rights and obligations are a subsidiary matter preceded by the existence of another legal nature called deputation the truth and legal cause of which should be recognized.
501 Patient’s rights and Medical Civil Liability Nasiri Mostafa Bayati Maryam 1 10 2011 5 18 41 60 15 06 2011 22 07 2011 These days, because of cultural development and mental growth and also improvement in human culture more attention is given to the patient’s rights, so that governments in different societies attempt to support this damageable group more than before. Always in the realm of the Law science, also, some questions were posed regarding this subject and jurisprudents, according to their capabilities, tended to respond to these questions. Some of these questions are as follow: How is it possible to support the patient’s rights against the negligent of doctor’s societies? Is the doctor’s obligation in instrument and their negligent proof is patient’s responsibility? Or if this obligation is an obligation in then nothing except force major proof can discharge the doctor? While the doctor’s obligation in other countries is obligation in instrument, how it is possible to harmonize the jurists consider with the Law or other countries? On the other hand jurists consider proposes acquiring patient consent for discharging doctors, but this question is still posed that what happened if a patient dose not desire to discharge the doctor? Can a doctor refrain to treat his patient? Without doubt, the response is positive. The patient’s rights will be destroyed, undoubtedly. In fact, a tool, invented for supporting of patient’s rights in Law of Iran, will be used against him. So, the authors, with relying on legal principles and with using jurisprudents’ opinions and with a new look on this subject are trying to respond the mentioned questions and to supply the patient’s rights better if legislator considers the obligations of medical societies as obligation instrument and assumes the doctor’s negligent for supporting of patient’s rights, especially because this is advocated by jurisprudent. In the Law of Iran, also, some people think that in case of discharging of the doctor by patient, yet the doctor has the civil liability against his negligent. No, this question is posed that whose responsibility is to prove this negligent? The proper answer to this question can help us to support the patient more. 502 Patients rights and Juridicial challenges Tohidi Jalal Askaripour Hamid 1 10 2011 5 18 61 73 28 06 2011 31 08 2011 In the legal terminology, right is a power that is given to a person by the law and for this meaning the word Solteh is used also in Feqh (Islamic Jurisprudence). Right, in this meaning, enjoys the sanction and has also been referred to as the vindicatory right, statutory rights and positive rights (Ja'afari Langeroudi, 1997, p.21). Under Article 19 of the Constitution of the Islamic Republic, "People of Iran, from any ethnicity and tribe enjoy equal rights and the color, race, language, etc will not cause any privilege." Also, Article 29 of the aforesaid Act states: "…want of health and medical services and medical care in the shape of insurance, etc is a universal right."The government is obliged, under laws to supply above services and financial supports to each individual in the country out of public revenues and the revenues obtained from the people's contribution." Patients' rights are among the important topics in the area of the medical law and although the Ministry of Health, Treatment and Medical Education has approved the Charter of Patients' Rights, but the existent deficiencies in the Charter's contents and especially, failure to secure effective legal sanctions may not respond to the suffering patients' problems. Moreover, the problems caused by the breach of the patients' rights by the Ministry of Health, Treatment and Medical Education, Medical Council and Forensic Medicine Organization as the main authorities for the health of the society and maintainers of the patients' rights will eventually appear in the judicial system and will cause also this field to encounter its own challenges. In this paper, while explaining these challenges, scientific and practical approaches have been presented to resolve the above problems. 503 Liability due to damaging the right of sterilization and abortion of Disabled Fetus Izanloo Mohsen Afshar Ghoochani Zohre 1 10 2011 5 18 75 96 25 04 2011 09 08 2011 One of patients΄ rights which are recognized in different countries such as Iran is right of decision about number of family members. This right may be enforced by using preventive medicine or other medical methods such as barring. If all of these preventive methods are recognized, the doctor will bind to perform his duty in satisfaction referring and non-performance will result in medical liability. Also in abortion, one of rights which are recognized for parents is abortion. According to Cure Abortion Act 1384, abortion of handicapped fetus is recognized based on current conditions. Therefore, a doctor who is a party to a contract will bind to respect this right and to perform this function in front of parents. Otherwise parents will be entitled to bring an action against him. This collection tries to prove patients΄ right in prevent of pregnancy or abortion of handicapped fetus and medical liability against them; so that a new window is opened in the debates of medical liability and supported rights of people and patients. Therefore, by studying permission or non-permission to barring or abortion of handicapped fetus in religious jurisprudence and different countries΄ law, we will consider medical liability or non-liability in these matters. The method which was used was library facilities and study of foreign books and papers in this context and comparing them with domestic legal system and studying the present cases. At the end it should be mentioned: although birth and life are welcomed incidents, parents can decision about number of family members and birth of handicapped child. If a doctor stops their right of decision and birth unwanted or handicapped child, parents can invoke to break of contract and claim for remedy against him. 504 Cosmetic surgery, necessity or excess? A reference to nature of obligations of cosmetic surgeons Salehi Hamid Reza 1 10 2011 5 18 97 116 06 06 2011 01 08 2011 Although in most legal systems and even in Islamic countries whose codes are drawn from Sunni jurisprudence, the nature of medical obligations is the obligation to means, but in some special cases and according justifiable reasons in accordance with the requirements and the new order ruling the society and regarding to a simultaneous attention to the order and justice, the nature of medical obligations is the obligation to results. Apparently in the Iranian's legal system following the majority of Emamyeh's jurisprudence, the nature of medical obligations has been introduced as the obligation to results which seems be able to criticized. However the acceptance of this subject -obligation to results of the obligation of the surgeons in unnecessary cosmetic surgeries - seems reasonable, logical and consistent with the realities of the society. So in this article, with a brief description of the history of the subject and the views of proponents and opponents, the nature of medical obligations and their examples it's been tried to comparatively study. An analytical investigation of the nature of the obligations of the surgeons has been dealt with in some controversial, common and related instances, i.e cosmetic surgery- either necessary or unnecessary-. 505 Patient’s safety and the Human Rights System Yavari Fateme 1 10 2011 5 18 117 131 02 07 2011 19 08 2011 The greatest human wealth is health .Declarations on human rights enumerate with one voice the right on health for every human being as one of their fundamental rights. According to human rights and international law the states should respect to the right and provide appropriate therapeutic and hygienic facilities which help to the patient to retrieve their health. Patient safety is not limited just into providing appropriate medical care during treatment process but patient person should receive physical; mental and social safety in all aspects of individual and social life as a citizenship like others from the time a person is infected with disease to the end of treatment process. And the legal system can’t disregard the patient safety particularly in their social life and dealing with other people since having healthy citizens mentally and physically is a necessary requirement of each state. As racial or sex discrimination is not accepted ؛disregarding fundamental rights of a person like the right on health ؛sufficient treatment the right on occupation proportional with ones abilities the right on privacy just because of that person is patient is an inhuman behavior. It should be noticed more in human rights and local statute. Protection of patient safety as the most important right of a patient is a duty should be done by all members of a society therefore awareness to patient safety ؛correct behavior and interaction of other people with a patient are prior to any other measure. In this article tried to be noticed more to the patient safety emphasizing on this issue that we need more inquiry on patient safety and how to manage it. 506 Nationality of kids born of artificial insemination Kusha Abutaleb Ebrahimi Arash 1 10 2011 5 18 133 154 02 06 2011 28 07 2011 There are so much discussable issues about legal statues of the kids born of artificial insemination. This is while the only law that had been set about this issue is "the ways of presenting Fetus to the infertile couple law" that had been conducted in 5 articles and had left so many unanswered questions in this subject. One of the legal considered subjects about these kids is their nationality. There isn't any special passed law by the lawmaker and these kids’ nationality should be determined based on the public regulations. By exerting the public rules of nationality in some cases there might be some differences in kid’s nationality with the recipient couples. This difference makes troubles for the community, kid and the recipient couple. Eventually it is recommended considering the states freedom in determining their subjects; Iran’s law maker gives these kids Iranian nationality. 507 Capability of protection of genetic engineering innovations in intellectual property law system Zahedi Mahdi Nezamolmolki Jafar 1 10 2011 5 18 155 190 15 06 2011 30 07 2011 Genetic engineering innovations are protectable in intellectual property law system as intellectual properties. Protection of many of these innovations in economic, environmental, moral and human rights fundamentals is justifiable. Based on existing fundamentals in field of mentioned aspects, protection of genetic engineering innovations is provided to application of economic, environmental, moral and also human rights principles. Also based on these fundamentals doing of some genetic engineering actions is prohibited, so we can’t protect innovations which are obtained by these kinds of actions.  According to Article 2 of Biosafety Act 1388, doing genetic engineering actions in Iran’s regulations is legitimate. Based on Article 16 of Biodiversity Convention, which Iran has joined it, genetic engineering innovations are protectable in intellectual property law system.