FAULT-BASED LIABILITY AND INNOCENCE OF DOCTORS AGAINST THEIR PATIENTS

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1 ISSN: (Print) ISSN: (Online) FAULT-BASED LIABILITY AND INNOCENCE OF DOCTORS AGAINST THEIR PATIENTS SEYYED MANSOOR MIRMORADI a1 AND DAVOOD MEHRJOO b a M.A. Student in Criminal Law, Islamic Azad University, Arak, Iran b M. A. in Management, Islamic Azad University, Naragh, Iran ABSTRACT Medical responsibility is regarded responsiveness of doctors for damages incurred for their patients the origins of which are in accomplishing medical duties. If the medical responsibility is based on Coercive Approach, the confirmation of faults should be done be the patient or claimant but if it is based on Contract Theory the scenario would be different based on commitment to objective or medium. In the present paper, the authors attempt to investigate the fault-based liability and innocence of doctors against their patients. Therefore, different issues, theories and rules along with opinions of Faqhihs in this regard are investigated. The whole structure of the present work is based on four arguments the first of which is based on criminal obligations of medical affairs. The second argument deals with bases of civil liability of the doctor while the third argument examines the opinions of eminent Faqihs. The fourth argument mentions the conditions of lack of medical responsibility a part of which hints on other issues like presumption of innocence and subjects such as patient satisfaction and other points. KEYWORDS: Doctor, Civil Responsibility, Innocence, Reception of Acquittance, Atonement Medical liability was first discussed in ancient Iran. In other societies, due to consideration of diseases as originated from metaphysical forces the healing of which is only done by such forces and because the human kind was thought to lack such metaphysical powers, ineffectiveness of treatment raised no liability for witch doctor. In other words, medical liability is discussed when diseases had material origins. The emergence of Islam caused an emphasis on medical science. The Hadith of The best of sciences are knowledge of the self and knowledge of the religions shows the distinctive emphasis of Islam to medical science. Imam Ali (greetings be upon him) quotes a Hadith of Prophet Mohammad (peace be upon him) in implies a distinctive interpretation if Islam towards diseased. Prophet Mohammad once asked for the reason of people s getting together and he was told that they had gathered around an insane person. He said that he is not insane but ill and asked one of his followers to treat him to the point of relative treatment and disappearance of attacks. Therefore, doctors have definite responsibilities in Islam. Hadiths such as the one which heals without sufficient knowledge, he is unjust to himself and he is liable are further evidence for aforementioned concepts. By accepting liability of doctors and expansion of the range of medical liabilities, the role of insurances of medical liabilities is doubly emphasized so that some religious thinkers consider Jarir Warranty as a synonym of liability insurance as applied to doctors. In other words, they seek the origins of liability insurance in Islam and Islamic Feqh (Motahari, 1980, p.51). First Argument: Criminal Responsibilities of Medical Activities In this section, the liability of doctors is discussed in different parts: Definition of Medical Liabilities Some commenters on medical liability believed that medical liability included the effect of criminal acts of the doctor such as nemesis, Tazir and Warranty. In their opinion, medical liability might take two moral and professional aspects. Its medical aspect refers to the public morality and ethics which should be observed by the doctor(s) of a society while its professional perspective is associated with medical occupation, rules and principles which the doctor is obliged to obey. The lack of commitment to liability requirements have been allocated to the following reasons: 1- Previous Intention 2- Error 3- Lack of Compliance with Medically Professional Principles 4- Unawareness of Awareness to Medically Professional Premises 5- Transgression of Patient s Permission 6- Ignorance of Patient s Parent Permission 7- Deception 1 Corresponding author

2 8- Stopping Treatment 9- Illegal Treatment 10- Disclosure of Patient s Secrets Therefore, medical liability includes examination of different kinds of criminal acts by the doctor, providing evidence supporting his/her responsibility for such acts and elaboration of the way to prove doctor s liability and mentioning effects which follows confirmation of presumed claims. Some lawyers conceive liability of a doctor as an example of professional responsibility so that we ought to define professional responsibility in the first step. It was mentioned in above that responsibility has different kinds. In another approach, the responsibility can be defined based on individual profession and among a special union, so that when an individual ignores the moral and ethical concepts and principles of a distinctive profession, he is questioned. Therefore, in medical profession, there are rules and principles the keen observation of which is necessary for doctors and ignoring them leads to penalties for the offenders. Such liability, originating from disciplinary offense, is defined as professional responsibility (HosseiniNezhad, 1989, pp ). Civil Responsibility of Doctor in Islamic Penal Law Article.59 of Islamic penal law granted doctors the permission to treat the public based on three conditions: First: Permission of the lawyer and state is essential which means that the public has authorized doctors of medical activities due to maintaining social welfare without attention to its consequences. Second: Satisfaction of the patient is an important element of the authority of doctor in doing treatments. The right of doctor in treatment is reinforced by rights of ownership of an individual over his/her body. Third: In addition to the above two conditions, the third element is the intention to heal and treat patient so that doctor can t do any disruptive actions against patient s health. Therefore, the three above-mentioned conditions, if thoroughly complied by the doctor, not only remove criminal actions but also satisfy civil responsibility (Shoja-Porian, 1992, p.211). Civil Responsibility of Doctor in Islamic Penal Law and ImamiFeqh In Shiite Feqh, there are two dominant theories on doctor s responsibilities. Most of Faqihs conceive a knowledgeable doctor as liable even if he has done no criminal activities. As mentioned, such a theory isn t capable of proving doctor s liability and the opinion of minority of Faqihs which consider doctors as non-reliable seems more harmonious with social logic, requirements and welfare. 1- Islamic Penal Laws confirms the liability of an expert and knowledgeable doctor even if such treatment is accomplished by patient s permission and/ or his/her parent authorization. Following the opinions of famous Faqihs, the doctor might face wrong and strong criticism. Against such a case, it is been mentioned in the same law that if the doctor leaves the patient before initiating treatment, there would be no future liability for him/her/ 2- The Liability of Doctor, in most cases is a contractual one so that doctor is associated with his/her patients through a treatment contract but there are cases in which such liability is inevitable. 3- Treatment Contract doesn t match any predefined ones and is regarded as instance of article.10 of the Constitution. 4- The components of liability of a doctor, ignoring the status of liability in terms of being contractual or inevitable, has three main premises including medical error, damages of treatment based on causal relationship between the treatment and the loss and the definition of medical error along with its evaluation criteria, hierarchy and ways of confirmation followed by error instances in Islamic Penal Law and diverse impacts of causal relationship (Safaii, 1970, pp.96-97). 5- Different Demonstrations of patient s liability and infringement responsibility including observation of technical aspects and professional standards in diagnosis and treatment, making unconscious, radiology and beauty surgery in addition to human side of treatment including treatment refusal, ignoring patient s permission and medical experience and license along disclosure of patient s secrets make doctors not only responsible of their own actions but also liable for civil responsibility of assistants, nurses, technicians and doctors over whom he has the authority to control and order.

3 6- A doctor undergoing an error should attempt to reconcile the incurred damages of patient or his/her inheritors through restoration of previous conditions or payment of equal monetary value. So, it is possible to provide contracts on redefinition of doctor s liabilities before or during treatment. Such contracts are valid and enforceable if they comply with social order. 7- Some doctors use insurance to provide a warranty for their civil responsibility of professional errors which if occurring, the damages would be paid by insurance company. It is recommended to reinforce this important industry in national scale. 8- In order to investigate the disciplinary offenses of doctors, provision of necessary expert ideas for confirmation of medical errors seems inevitable. 9- Commitment to Feqh premise along with attention to social welfare and passing associated rules are increasingly important issues which if they are paid careful attention to help us predict future development and confirmation of capability of Islam in solving common universal problems (Abasi, 1999, pp.56-58). Second Argument: Premises of Civil Liabilities of Doctors In this section of paper, the civil liabilities of doctors are investigated in different section. Civil Liability of Doctors In order to comprehend when doctors are deemed responsible, we should first become aware of the nature of doctor s liability in legal system of Iran. The Legal Component of Liability Article.1 of civil liability law considers someone as liable for reconciliation of damages if he/she, without any legal, practically poses threats the life, health, property, honor, or business prestige of another individual or infringes any other individual s rights causing him/her any legally acknowledged loss. Article.60 of Islamic penal law on Innocence has the following supporting articles: A- Article.319 on inclusion of civil liability if permitted B- Article.321 on inclusion of civil liability if permitted C- Article.322 on inclusion of denial of liability if regarded as innocent Third Argument: Condition of Lack of Medical Liability After examination of premises of medical liability from legal perspective, one should note that such a liability is denied in definite conditions. Of course, in some cases, civil liability and in other cases, criminal liability might be conceived as irrelevant. Permission of Policy Makers First, treatment from the perspective of law and Sharia is regarded as a necessary and neutral action so that even some Faqihs consider it as essential the denial of which is religiously wrong and deserving divine retribution. This issue was so significant that some Faqihs didn t confirm receiving salary for such activities. Therefore, the law allows those qualified for such profession to initiate their profession. This satisfies the first condition of lack of liability, i.e. medical legitimation and as mentioned, the basis of such legitimation is Prophet Mohammad s tradition and behaviors of Imams emphasizing the necessity of protection of the self also paid attention to in Islamic Sharia. Medication as a profession and an introduction to such requirements is regarded as essential or at least, allowable (Mohaghegh, 1989, p.186) but law makers conceive the doctor s qualification as non-limited along with its limitations. Intention to Treat The second condition of lack of liability is the intent to treat by medical operations without any intention of improving experience, business or scientific experiments. Considering recent developments of medical science and prevalence of its range, it is recommended to consider lack of reliability as a substitution to the above condition (NajmAbadi, 1985, p.131). Legitimation of Medical Activities Paragraph.2 of article.59 of Islamic Penal Law, considers legitimation of medical operation as a condition for lack of liability of a doctor. Article.6 of disciplinary medical regulations states that: involvement in activities which are against medical premises and ethics are forbidden. Doing such activities regarded, by Negahban Council, as illegal ones deserving criminal liability. Observation of Medical Requirements In addition to observing religious requirements, the law maker has proposed article.59 of Islamic Penal Law in which consideration of technical and scientific

4 requirements are pre-conditions of criminal liability of doctors. Satisfaction of Patient In this context, satisfaction implies the permission granted by patient to intended doctor and conditions of permission were examined in its associated discussion. It should be noted that permission should be published by someone whose permission is valid and intentional so that doctor warns his/her patient of intended treatment and its consequences and if doctor attempts to get his/her patient s agreement through an uncommon or illegal action or words, he will be liable as deceitful individual. The doctor should act in limited manner if he is permitted in such a way. Obtaining Innocence The law-makers of Iran regard innocence as a condition for refusing medical liability. But it should be noted that in this regard, civil liability is refused too. When a doctor can refer to the state of emergency and act without demanding satisfaction and innocence that the following three conditions are fulfilled: A- Existence of severe life-threatening danger the confirmation of which should be done by the doctor and if difference of opinions exists, the opinion of Legal Forensics Office should be regarded as basis. B- The patient is not capable of permission. C- To the point of necessity, there is no need for permission and innocence (Yazdanian, 1998, pp ). Some state exceptions exist in this regard in which there is no need for innocence or permission and doctor will not be liable if any offense happens. Such are the cases in which state permits the doctor to act in the proper way because its permission is superior to that of patient. CONCLUSION Due to above reference, one can summarize the key points of the present discussion in the framework of legal articles as follows: Important Points of Paragraph.2 of Article.59 in Islamic Penal Law: 1- Legal support of doctor s actions is to the extent in which surgery is considered as valid in addition to obtaining permission and lack of liability so that operations such as abortion is illegal due to legal prohibition. In plastic surgeries, there are different interpretations but it is a consensus that such operations are not crime in cases of mental imbalance, etc. 2- Obtaining the permission before operation doesn t mean lack of liabilities. 3- Obtaining innocence before treatment leads to refusal of offense liability. 4- Defining the emergency of treatment before obtaining permission is a duty of intended doctor. 5- Based on this article, surgery isn t innately illegal nor is any impediment due to such operation. If impediment occurs, disabled organ will be dealt with base on article.319 of Islamic Penal Law. Article.60 of Islamic Penal Law By confirmation of innocence, lack of doctor s offense in article.319 and paragraph. B of article.295, the liability of offense is removed from the doctor and transmitted to harmed individuals. Article.319 of Islamic Penal Law 1- The content of this article matches the quotations and opinions of ImamiFaqihs. 2- Permission and authorization of treatment is granted for healing and improvement and not threating patient s life so that such permission has nothing to do with emergence of treatment and obtaining innocence. 3- In this article, the premise of commitment is for treatment and inhibition of further damages. Some lawyers consider such commitment in terms of attachment to an objective. Article.322 of Islamic Penal Law On article.322, this religious discussion is considered as noteworthy that whether doctor s innocence before the treatment is an instance of refusal of an essentially ambiguous liability or not. Article.322 of Penal Laws considers thus as religiously right because it emphasized the refusal of doctor s liability if his innocence is obtained. On legal analysis of this subject (innocence before establishment of Islam, warranty or liability), this point has been mentioned that the precondition of lack of liability is regarded as a precondition of signing a contract among patients and their doctors because associated offices can exempt the sued individual from future reconciliation. Presumed innocence

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