Medical Malpractice Between the Obligation of Means and the Obligation of Result (A Comparative Study)

Abstract

This research examines medical fault and physicians’ civil liability in light of the technical and probabilistic nature of medical practice. It defines medical malpractice and distinguishes it from legally accepted complications and inherent professional risks that do not trigger liability. It emphasizes that fault is assessed not by the “ordinary person” standard but by the conduct of a prudent specialist in similar circumstances, with expert medical evidence playing a central role. The study adopts a comparative perspective (Iraq, Egypt, France), highlighting France’s more protective developments for patients. It explains that a physician’s obligation is generally an obligation of means (duty of care), not an obligation of result, while recognizing exceptional cases where a result is expected (e.g., cosmetic surgery and certain technical acts, including the safety of tools/materials). It then clarifies the legal basis of liability—contractual versus tort—depending on the existence and scope of the treatment relationship. The research analyzes the pillars of liability (fault, damage, causation) and the practical difficulties of proving causation and dealing with multiple causes. It also outlines the scope of liability and exemptions such as foreign cause/force majeure, informed consent, patient’s own fault, and accepted medical risks. Finally, it calls for clearer legislative and professional standards in Iraq to ensure a fair balance between patient protection and physicians’ professional security. This study adopted a comparative analytical approach, analyzing relevant legal texts, judicial precedents, and scholarly opinions. The topic will be addressed through two main sections: the first examines the nature of medical malpractice and the doctor's obligations, while the second addresses civil liability for medical malpractice.