Volume 18, Issue 59 (4-2024)
MLJ 2024, 18(59): 1-17 |
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Rafiee R, Abedini H, Rostaei H. Physician's Liability to Obligation or Avoid Treatment in Normal and Emergency Conditions in Iranian and American Law. MLJ 2024; 18 (59) :1-17
URL: http://ijmedicallaw.ir/article-1-1658-en.html
URL: http://ijmedicallaw.ir/article-1-1658-en.html
1- Department of Law, Faculty of Theology and Islamic Sciences, Meybod University, Meybod, Iran.
Abstract:
Background and Aim: Determining the basis and type of Physician's liability, connecting the Physician's fault with his benevolent intention(Ihsan), distinguishing between normal and critical conditions, Distinguishing Article (495) of the Islamic Penal Code approved in 2012 with Article (510) of that law, Determining Triage system from negative discrimination, determining Standard of care in normal and Emergency conditions, By examining the laws and opinions of American Doctrines and benefiting from the Holy Quran and the opinions of Iranian jurists, has been the goal of the authors of this article.
Method: The method of this study is descriptive-analytical and its data collection instrument is documentary-library.
Ethical Considerations: This Article has completely adhered to the Moral Principles Honesty, Respect for Rights and Confidentiality- and the Principle of Material-Intellectual Property.
Results: In Iranian law, the standard of care (standard of fault) of a Physician in normal and Emergency situations is a reasonable person. But in American law, in normal conditions, reasonable person, Adverse outcomes, Duty to stay abreast are used and in Emergency conditions, they use the good Samaritan theory (Ihsan) in the direction of the Physician's immunity. In Iranian law, in normal and Emergency situations, the principle is that there is no obligation to treatment unless there is a contractual relationship between the Physician and the patient, or the Obligation to the benefit of the third party (patient) is included in the contract between the hospital and Physician. In this case, according to Article (495) of the Islamic Penal Code adopted in 2013 the Physician must prove his innocence as a claimant. In the absence of a contractual relationship between the physician and the patient and his/her action for relief or treatment, according to Article (510) of the Islamic Penal Code adopted in 2013, he/she can rely on Ihsan against the claim of the patient's fault and as a defense. Avoiding treatment based on the principle of non- obligation to treatment, the principle of Not forcing treatment and the rule of emergency does not cause the Physician's liability. In American law, under normal conditions, based on the theory of fault, the principle is principle of non-obligation to treatment.
Conclusion: After the investigation and studies, according to the laws of Iran, the rule of "Ihsan" is not the basis of the civil liability of the Physician, but the Physician can prove his innocence as a claimant or a denier (depending on the existence or non-existence of a contract) or defend himself against the patient's claim of fault. Also, in any situation, the principle should be placed on the non-obligation to treat the patient unless there is an agreement or contract for the treatment of the disease. Positive discrimination (triage), unlike negative discrimination (Unfair treatment), can help improve the treatment process in Emergency situations.
Please cite this article as:
Rafiee R, Abedini H, Rostaei H. Physician's Liability to Obligation or Avoid Treatment in Normal and Emergency Conditions in Iranian and American Law. Medical Law Journal. 2024; 18: e1.
Method: The method of this study is descriptive-analytical and its data collection instrument is documentary-library.
Ethical Considerations: This Article has completely adhered to the Moral Principles Honesty, Respect for Rights and Confidentiality- and the Principle of Material-Intellectual Property.
Results: In Iranian law, the standard of care (standard of fault) of a Physician in normal and Emergency situations is a reasonable person. But in American law, in normal conditions, reasonable person, Adverse outcomes, Duty to stay abreast are used and in Emergency conditions, they use the good Samaritan theory (Ihsan) in the direction of the Physician's immunity. In Iranian law, in normal and Emergency situations, the principle is that there is no obligation to treatment unless there is a contractual relationship between the Physician and the patient, or the Obligation to the benefit of the third party (patient) is included in the contract between the hospital and Physician. In this case, according to Article (495) of the Islamic Penal Code adopted in 2013 the Physician must prove his innocence as a claimant. In the absence of a contractual relationship between the physician and the patient and his/her action for relief or treatment, according to Article (510) of the Islamic Penal Code adopted in 2013, he/she can rely on Ihsan against the claim of the patient's fault and as a defense. Avoiding treatment based on the principle of non- obligation to treatment, the principle of Not forcing treatment and the rule of emergency does not cause the Physician's liability. In American law, under normal conditions, based on the theory of fault, the principle is principle of non-obligation to treatment.
Conclusion: After the investigation and studies, according to the laws of Iran, the rule of "Ihsan" is not the basis of the civil liability of the Physician, but the Physician can prove his innocence as a claimant or a denier (depending on the existence or non-existence of a contract) or defend himself against the patient's claim of fault. Also, in any situation, the principle should be placed on the non-obligation to treat the patient unless there is an agreement or contract for the treatment of the disease. Positive discrimination (triage), unlike negative discrimination (Unfair treatment), can help improve the treatment process in Emergency situations.
Please cite this article as:
Rafiee R, Abedini H, Rostaei H. Physician's Liability to Obligation or Avoid Treatment in Normal and Emergency Conditions in Iranian and American Law. Medical Law Journal. 2024; 18: e1.
Keywords: Obligation to Treatment, Avoidance of Treatment (Bad Samaritan Law), Urgency (Emergency Condition), Ihsan (Good Samaritan Law), Fault, Iranian Law, American Law
Type of Study: Original Article |
Received: 2023/06/3 | Accepted: 2023/10/29
Received: 2023/06/3 | Accepted: 2023/10/29
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