Conditions and Effects of Civil Liability Arising from the Investigation of Medical Errors: A Comparative Study between Iraqi and Iranian Law

Abstract

This research deals with the issue of civil liability arising from medical malpractice investigation, within the framework of a comparative analytical study between the Iraqi legal system and the Iranian legal system, through a comprehensive approach that seeks to cover the conceptual, legislative, institutional, and judicious aspects related to the regulation of medical malpractice liability. And the importance of this subject is evident in the modern medical reality, which is witnessing a great development in therapeutic methods, interference in professional specialties, and the increase in legal issues related to negligence and medical malpractice, we impose on legislators, judges, and doctors the development of integrated legal concepts to ensure the balance between the rights of patients and the duties of doctors. And the study starts with a central problem, which is represented by the following question: To what extent do the legal systems in Iraq and Iran provide a comprehensive legal framework that guarantees civil liability resulting from the investigation of remedial errors? The research is based on a scientific and complex method that combines the descriptive analytical method and the comparative method. Having analyzed the relevant legal texts, such as the civil liability law, public health laws, laws regulating the practice of doctors, as well as the judicial rulings issued in this framework, with a detailed comparison between the position of the judiciary and the legislation in Iraq and Iran, in order to draw out the legal understanding of liability for remedial errors, and the extent of compatibility with the basic principles of civil liability, including the availability of the elements of fault, harm, and causal interest. It is also important to use the judicial precedents and legal and medical jurisprudence opinions in the analysis of the controversial points, especially regarding the burden of proof, the presumption of fault, and the criteria for determining compensation. The research has faced a number of challenges, the most important of which are: the absence of specific legislation to regulate the doctor's responsibility independently, the disparity of judicial rulings and the weakness of comparative legal codification, the limitation of academic literature in this field in Arabic and Persian, as well as the technical complexity that characterizes therapeutic issues, which makes the process of accurate legal adaptation difficult. However, my research was able to present a critical view based on comparative analysis and modern legal concepts, leading to a number of important results, the most prominent of which are: that the legislation in Iraq and Iran is still mostly based on the general rules of responsibility, without establishing an expert framework that accommodates the specificity of medical practice. As the research showed that the judiciary, despite some advanced ijtihadat, is still reluctant to apply legal evidence, especially in favor of the patient, which weakens the protection and increases the burden of proof against him. In addition, the medical institution is not asked clearly about the errors caused by the internal organization, despite the apparent institutional fault in many cases.