International Journal of Scientific Engineering and Science

Volume 2, Issue 6, pp. 7-11, 2018. ISSN (Online): 2456-7361

Civil Liability of Doctor and the Medical Staff

Dr. Sodeh Hamed Tavasoli, Behnaz Farokhi
Islamic Azad University

Abstract—Nowadays, one of the important problems of law is tort of treatment system which civil law and tort of 1339 are quiet towards it.
whereas, respect to patient and defense of human rights at the time of sickness and medical urgencies, has been known as the charter of patient
rights without paying attention to age, gender and financial discrimination. Contemporary, if any fail in service or any mistake in planning or
implementation causes unintentional consequence and damages, undoubtedly such an action is not appropriate to the patient’s expectation. We
have reviewed the mistakes that come from deception or ignorance of scientific principles will lead to the responsibility of the medical and
therapeutic staff in this research and we have received special attention to the situation of diagnosis and treatment.
Also, the process of producing and distributing drugs is different from other commodities. Therefore, care should be taken in applying the
general rules and regulations regarding them.
As we have reviewed, there are relatively comprehensive and comprehensive laws in our country, but there are also mistakes in this area
that result is civil liability for culprits. Because in Iran's law, the basis of civil liability arising from medicinal activities is a fault that proof it,
will be difficult for the lost.
However, it can be said that it is possible to cite contractual liability to compensate for medical and medical personnel mistakes. Because
other pharmaceutical products are often sold to the patient or consumer at pharmacies or by professional vendors, apart from medications that
are given directly to the patient in hospitals or taken by a doctor. Therefore, contracting responsibility can be considered as one of the main
principles of the claim for damages caused by pharmaceutical products. In the following, efforts have been made to explain the necessity of
changing the medical civil liability system and approving special rules in Iranian law and establishing a special system of compensation for
medical accidents.

Keywords— Tort, Treatment system, Medical error, Damage compensation.

criminal offenses and are subject to review by the Specialist

I. OBSERVING HUMAN HEALTH ISSUES Medical and Pharmaceutical Branches of the State
In the face of technical errors that arise from breaches of Organization of Public Injuries.
professional and occupational rules and provide civil liability According to Article 7 of the Law Enforcement Code of
for doctors and other health care providers. There are other Practice, consideration of professional and professional
errors that are not related to the principles of medicine but misconduct is prohibited in imposing unnecessary expenses on
relate to the nature of the relationship between the doctor and patients. In France, the doctor concluded with a laboratory to
the patient and lead to the civil liability of the doctor. The send his patients to that lab and it had to give the doctor an
general rule is that commitment to the doctor is a commitment amount of its wages. France’s court declares the contract is
by means of something. Some medical practices have gain a contrary to public order, because the existence of this contract
status as a result of scientific achievements, which is a definite encourages the physician to introduce patients to the
result, and failure to realize the result means that the practice laboratory and to issue a few unnecessary tests to the patient
is not properly executed and is in itself responsible for the which will force him to pay unnecessary expenses (Dr.
failure of the physician's commitment. In such cases, the Katouzian, Naser, Praise Contract or Contract Office, Journal
doctor's commitment is a commitment to the output and is of Faculty of Law and Political Science, University of Tehran,
considered as an exception to the principle. 52, p. 132). This action will be caused that doctor legal
liability and civil liability. More sadly, it has been seen that
Detection stage
physicians who are physically motivated with the aim of
The first phase of the examination after the diagnosis and obtaining surgical wages, while being treated with medication
treatment and medication may be required at this stage and physiotherapy, have forced him to accept surgery and
determined, the most sensitive stage of treatment. Patient tolerate it. (Ghasemzadeh, Seyyed Morteza, Relationship of
rights must be respected and protected by medical staff and Pride and Fault, Quarterly Journal of Legal Views, No. 11-10,
physician assignments and their breach will lead to their p. 73)
responsibility. In this regard, in order to justify the custody of the doctor,
Observe legal fees and usual expenses which leads to deceiving the patient and bearing additional
costs on him. In fact imposing these costs on the patient is
Under Article Ten of Law Enforcement Code, in incorrect Prescription and causing responsibility for the
investigation of guilty violations in trade regulations and the relevant physician.
medical profession and related professionals:” Medical
practitioners and health care-related tariffs approved by the Commitment to inform the patient about diagnosis
Ministry of Health and Medical Education shall be Disclosure of information for the patient should be
observed.In accordance with Article 4 of the Government Toll considered as a process rather than a periodic event. The first
Law, additional payments from the announced rates of the step is to inform, is to inform the patient about the diagnosis of
Ministry of Health and Medical Education are considered as

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 International Journal of Scientific Engineering and Science
Volume 2, Issue 6, pp. 7-11, 2018. ISSN (Online): 2456-7361

the disease, after obtaining medical examinations on the II. TREATMENT STAGE
patient. In this step, doctor can examine and touch and have After proper diagnosis of the disease, the doctor and other
simple ways to hear the patient heart rate and measure blood members of the medical staff are seeking treatment. Here, the
pressure With the help of simple equipment, such as a handset, doctor is required to continue treatment completely till
blood pressure measuring devices and thermometers, etc. complete recovery. He does not hesitate to do any work. In
which once were the main means for diagnosis. With the fact, each medicine has a commitment to treat and treat the
development of technical means and the Genesis of new patient to recovery. A commitment to continuing the treatment
diseases, Diagnosis of a lot of diseases through examination of is an obligation that is rooted to the contract directly in the
simple primary is not possible and your doctor have to use will of the parties, and in the event of silence, in order to
new devices in detecting, such as x-rays, CT scans, gamma complete the will of the parties, the law, has given the
scan and biochemistry, microbiology tests and so on. physician a commitment to treat the patient until recovery.
The courts blame the doctors who are not resorting and Also, as with the diagnostic stage, the patient should be
using new medical devices and methods to discover the informed of the treatment and the treatment steps have to be
diseases, especially in the face of the experts, this commitment explain to him.
is intensified. In addition, the rules of professional ethics
emphasize the commitment of physicians and require doctors Commitment to continuing treatment
to use all the necessary means to ultimately be accurate at the Lawyers have been less discussed the subject of doctor's
diagnosis stage. It is essential to devote the necessary time to commitment to continuing the treatment of the patient and,
recognize the disease and resort to appropriate scientific basically, have not the notion of such an obligation or
materials and to consult with those with a higher level of responsibility for doctors. The general belief is that the
expertise or expertise.( Articles 5 and 19 of the Code of physician at any time can leave the patient at any stage of the
Practice on Professional and Professional Violations of treatment process and the patient can only refer to another
Medical Professionals). doctor, but this belief is not consistent with the construction
Since the use of new scientific means for diagnosing a and appearance of the relationship between the physician and
disease may lead to risks, the physician is required to inform the patient, since the principle is that any illness that comes to
the patient of the risks, so that the patient can, with the the doctor and a medical contract is formed contractor is
knowledge of the benefits and risks, decide on the acceptance meant for the patient to receive full healing and treatment.
or rejection of the use of the equipment which will be When the doctor accepts the patient's invitation for medical
suggested to diagnose the disease.( Mousavi, Seyed Masoud treatment and the medical contract is concluded, the physician
and Jalali Jahromi, Maryam, 2002, Studying the Attitudes of must complete his commitment and cannot refrain from
Faculty Members and Clinical Assistants of Shiraz University continuing treatment (post-operative care). Failure to perform
of Applied Sciences regarding Discrimination in Untreatable part of the contract or the incomplete execution of the contract
Patients, Forensic Medicine, p. 27, p. 34) is subject to the failure to execute the contract and shall oblige
When doctors diagnose certain receipts, it is necessary to the person responsible for the compensation. In accordance
inform and explain that medical information in terms that are with Article 19 of Iran Penal Code “The physician is
understandable to the patient, explain and summarize the responsible for continuing the treatment of patient illness
progress of treatment. If the disease is not treated it must be unless the patient or his relatives are willing to do so." Thus,
described to patient. Awareness of the diagnosis may be the doctor's commitment to the continuation of treatment has
necessary on its own and regardless of satisfaction with both a contractual origin and a legal assignment. It is a law
medical treatment. For example, in work hygiene, which the that constitutes a contractual obligation under article 220 of
practitioner's physician regardless of treatment and Iran the Civil Code. However, the doctor will start treating the
satisfactory accommodation acts, Diagnosis is only mentioned patient and he cannot leave his patient as long as the patient
to prevent and correlate between the state of health of the needs care and attention. He cannot abandon him, he has
worker and the work environment. Physicians are required to violated his contractual obligation and is responsible. The
inform workers of their physical state in the diagnosis step. French Supreme Court upheld the physician's commitment to
The same is in school health. In sports medicine, physical continuing the patient's treatment: "The medical practitioner
examinations are conducted before participating in sports who refuses to treat her ill when she requests to be treated and
competitions, in order to identify the players at risk and the treatment has been neglected, especially since the patient's life
players who must be excluded from the competition. If the is due to the physician's refusal was at risk. (Judgment of the
physician team determines wrongly the physical condition of Supreme Court of France July 23, 1835). While the element of
the athlete, is responsible in front of all the situations that the trust has the same role in the construction of the medical
athlete loses as a result of this mistake. It is not enough to contract, and the physician cannot leave his patient even when
inform the patient of the diagnosis of the disease for informed lost his trust for any reason to the patient and is responsible for
consent, but the doctor should inform the patient about the leaving, but, the same patient should be able to terminate the
treatment he or she intends to do. (Aghaei Nia, Hossein, 2000, contract unilaterally, but his power in termination is limited to
Civil Liability in Sport, Judicial Publishing, Third Edition, p. Certain cases. The cause should be sought in the nature of the
116) treatment contract. This contract is made to obtain the health
of the body and the soul, and there is no possibility of

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 International Journal of Scientific Engineering and Science
Volume 2, Issue 6, pp. 7-11, 2018. ISSN (Online): 2456-7361

balancing between the parties and it is different from not be exaggerated and cause fear of the patient or loss of his
conventional contracts that are aimed at solving ordinary hope of healing. Now, the question arises as to whether there
needs and that the parties to the contract must balance. If a are different ways to treat, whether the physician is required to
physician has the right to terminate due to the loss of inform the patient about the ways of treatment and
confidence of acting freely and use this right inappropriately, alternatives, and then the type of treatment that the patient
it causes irreparable damage, so the legislator will impose this chooses, or whether the choice of method Treatment is a
restriction on the physician's right. In addition, the parties did doctor's exclusive right? Some believe that the choice of
not have the same conditions at the moment of concluding a treatment is right for the patient and, consequently, requires
medical contract, and as the patient is in danger of illness, the physician to expose his patient to possible ways of
concluding a medical contract in his request, so if a balance is treatment and alternatives, the risks of each choice and the
struck at the implementation stage and this compensation is means of differentiating them simply and without the
compensated, justice is not far off, and this complex nature of complexity and technical terms, then the choice of the way in
the medical contract has led some to believe that this contract which the treatment is to take place is left to the patient.
is out of the scope of certain contracts and is among the Some courts have accepted this analysis. The French
indeterminate contracts. Supreme Court ruled about a doctor who did not inform the
The medical contract is a continuous contract, which patient about two methods of treating the patient's right foot
means that medical examinations and treatment, and the length fracture, have, and lonely chose a method that led to the cut
of treatment, depending on the circumstances and take a short off the patient's leg and recognized him guilty. Also, in
or long time and the physician will take two basic points to another case in one of the American hospitals, the patient
make his commitment to continuing the patient's treatment stomach was pierced through the examination of the
Must adhere to; endoscopy, and as the patient was given a general consent
1- The treating physician should treat the patient to a before the surgery and conducting the examinations and
satisfactory and conventional outcome and take care of the preparing him, which the physician had recommended. The
patient according to the circumstances and necessity and the court argued that the consent was not acceptable or not
nature of the illness and progression. For example, a medical actually obtained, since it was not suggested and explained to
doctor who has undergone a surgical operation and whose the patient in the event of other consequences. Another theory
surgery has also been successful. He cannot stop his actions by is that the physician is free to choose the method for treatment,
sending a patient to the ICT, but he has a duty to take care of provided that the doctor's choice is in line with the science and
him until the end of the patient's admission, and even if experience of the medical day and that there is a despicable
necessary, after the discharge of the patient, he issued the way that is inappropriate for the patient. Proponents of this
necessary instructions and required the referral. (Abbasi, theory have said that patients are in a state of health who often
Mahmoud, Forensic Medicine, former, p. 96) refrain from a dispute with the doctor in the treatment or are
2- A person who is referring to a medical clinic for treatment not aware of the technical details of surgical removal, and that
and the necessity of pursuing his treatment is inevitable, it is the reason is sufficient to give them to the doctor. His science
necessary to remind him of the necessity of his recapitulation. and experience are trusted to choose the way that he is capable
of. Some of the French court sentences have ruled this theory.
Commitment to inform the patient about the treatment
The appellate court ruled that a medicine that has the practical
The physician's freedom to choose a treatment is one of the credibility of a dangerous operation would have the freedom
traditional principles of the relationship between a doctor and to choose the right tools for doing so. It seems that in the case
a patient. But this freedom does not necessarily mean that a that there is a possibility of different choices in the treatment
doctor can impose certain treatment on his patient. The patient for the doctor, for example, the illness, the possibility of
must accept the treatment principle and, if there are many treatment through medicine or surgery, the physician must
ways to cure, has the right to choose one of them. This will not provide all the methods of treatment to the patient and each of
be achieved unless the physician fully informs the patient the ways of the benefits and explain the risks and costs. Then
about what is relevant to the proposed treatment. Therefore, it leave the patient with his understanding and choice to choose
is necessary for the physician to inform the patient of the the method of treatment. Because the patient has a right on the
nature of the treatment and practice, as well as explain its body that owns it and has the authority to choose the method
predictable outcomes to the patient, and explain the ratio of of treatment.
the probability of achieving the result and the possibility of In the context of a contract, the patient not only takes into
failure in practice. It is necessary the patient becomes aware if account the outcome, but also the means of achieving the
the benefits of cure are temporary or achieved over time and result is considered, may be less risky or less painful or even
of the need to repeat it. In addition, it is imperative that the less costly than the other, so if the physician is not committed
patient is surrounded by the risks of treatment or surgery, as to the outcome, at least the patient is free to choose a
well as the risks of non-treatment and abandonment, in order therapeutic treatment that he hopes for. Because the patient
to balance and adapt between the risks of treatment and has a right on the body that owns it and has the authority to
treatment cessation. Risk values are expressed as percentages, choose the method of treatment; the acceptance of such a right
for example, multi-percent success and side-by-side risks. is due to the fact that the patient is voluntarily compelled.
These proportions should be means of explanation and should When the physician provides different ways of treatment there

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 International Journal of Scientific Engineering and Science
Volume 2, Issue 6, pp. 7-11, 2018. ISSN (Online): 2456-7361

are two assumptions about the patient's choice and the choice secrets is the responsibility of the physician and the presence
of the patient; or absence of a contract does not affect the physician's
First, the paths available to the doctor are the same, and commitment. The results of this study suggest that the doctor's
none of them is preferable to them, and all of them are commitment is a relative commitment and is not absolute; the
available for the patient's existing recovery. In this case, the consent of the owner is enough to disclose it, and the patient is
physician leaves the choice to the patient and, after choosing, entitled to give the physician permission to secrecy. Instead,
he starts treatment in the chosen manner. he cannot allow a physician to disclose his secrets even before
Second, the physician prefer one route to another, in this a court. As a result of the inadequacy of the doctrine of the
case he will explain in detail the reasons for his preference to contractual nature of the doctor's commitment and its
the patient, and if the patient accepts the proposed method of criticisms, another theory has been put forward that the
the physician, otherwise, the physician is permissible in the doctrine of the physician's commitment to protecting patients'
exceptional and necessary non-state of the continuation of the secrecy is public order, that is, in order to realize the general
treatment of the excuses. As the patient's reluctance to tolerate interest, the physician should preserve the secrets of the
treatment that he does not want, the doctor may not be forced patient. If doctors are allowed to reveal the secrets of those
to undergo treatment in a way that he does not believe. who come to them, patients are afraid of the scarcity of their
illness and the disadvantages of their pride and dignity and the
III. POST-TREATMENT STAGE problems that arise in the future. They refuse treatment and
The commitment of the physician and other members of harm the community indirectly. The benefit of society is
the treatment does not end after the patient's treatment, and the realized when society is as free from any illness as possible.
assignment is still on their side. In fact, it is not supposed to be With regard to laws relating to the protection of patients, the
that doctors are not only obliged to treat the patient and have British law has not laid down any specific law in this area, but
no other duties to him. One of these tasks is the commitment in the UK's moral code of conduct, this right is guaranteed by
of the doctor and the treatment staff to the secrecy and to the patient and every patient has the right to expect that
preserve the secrets of the patient, as well as his awareness information about her provided to her physician remains
that some issues should be addressed in the post-treatment confidential. The Iranian legislator has also required
period. physicians to maintain professional secrecy at various
occasions, Article 4 of the Law on the Investigation of
1- Not disclosing the secrets of the patient
Violations of Guilds and Medical and Associate Professions
Trust is the main element of the relationship between the approved by the Cabinet of Ministers on 20/4/78 states:
doctor and the patient. The patient will physically keep his or "Professionals in medicine and Affiliates have no right to
her own secrets in order to maintain his health and expects the disclose secrets and types of illness except under the law.”
physician to respect these secrets. Confidentiality is rooted in (Tavistocks axar, 1988, Ethic and members of the medical
religion and ethics, and secrecy is always considered a profession, British medical association, p 15.). In Article 648
worthwhile and valuable act. In all legal systems of the world, Iran civil code this pledge is foreseen for all those who are
the refusal to disclose the secrets of patients has been accepted confessed about their occupation or profession, and stated:
as a general rule. Some lawyers believe that this commitment "physicians, surgeons and drug dealers, and all those who are
is rooted in a contract and likened it to a deposit. The patient keeping secrets because of their professions, whenever they
gave his confidentiality to the doctor, and the doctor did not are in non- Legal cases reveal the secrets of people, sentenced
have the right to disclose these secrets, even if he was in the to prison from three months and one day to one year or to pay
care of the insurance department or workshop for a medical one million and five hundred Rials up to six million Rials of
examination, the doctor is not entitled to disclose the secrets cash.” Thus, the doctor's commitment is rooted in law and
he received during treatment. This theory has been severely applies to public order matters, and the patient's illness cannot
criticized, because the contract is a royal bond, the subject of exclude the doctor from his obligation to maintain his secrets.
which is the property of the property, whether immovable or The physician is required to protect the secrets of his patients
immovable, Walsh is not considered to be a material property and the lack of a contractual relationship between him and the
and is spiritual. In the contract, the objects of the contract can patient does not invalidate his legal duty. However, the
be refunded, but the medical head does not have the ability to doctor's commitment is recognized as a legal consequence of
refund. The trustee is required to reject the deposit item, but the contract and is discussed as a contractual obligation. The
the physician is not required to reject his head as the secrets obligation of the physician to preserve his patient's secrets is a
are in it! Civil law emphasizes the two elements of the transfer type of commitment to the outcome, and his responsibility
of property, and the illusion of the objectivity of the deposit towards it is absolute, and it is not necessary to prove the
has been raised. While in the relationship between the doctor guilty person and the physician's accusation, and only the
and the patient, the secrets that the doctor knows is not based proving of the foreign cause (Cairo's authority) can lead to the
on delivery, and in most cases the patient himself is not aware dispensation of the medical liability of the medical
of the existence of the head. In cases where there is no practitioner.
certainty that there is an agreement between the doctor and the
patient, such as emergency cases and the prison doctor and the
physician of the armed forces, the preservation of professional

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Volume 2, Issue 6, pp. 7-11, 2018. ISSN (Online): 2456-7361

2-Commitment to inform the patient about post-treatment better off of their right to return and the probability of legal
issue pursuit will be reduced.
The end of treatment or surgery does not end the
IV. CONCLUSION
obligations of the doctor and other members of the treatment
staff, and he should provide some necessary information to the 1) The doctor and other members of the medical staff have
patient after treatment, whether medical practice has been duties during the treatment. His main assignments during the
successful or failed. Informing at this stage is different from course of his professional activity are the same either there
knowing the diagnosis and treatment that aims to clarify the was a contract or not. Of course, there may be a contract with
patient's will to obtain informed consent, because it is assumed the patient in relation to extracurricular activities and the
that the patient has expressed his satisfaction before starting provision of additional services, and the violation would result
treatment. The purpose is to inform the patient about his health in their contractual liability, but the treatment cannot be wrong
and safety and this will result in scientific coverage of the from the case where the contractor was already in place and
anticipated effects of the treatment, in order to ensure the where there was no contract between them. The contract is not
necessary precautions in the future, or to endanger the subject to the provisions of the law, the law of the medical
emphasis on the success of the action or the elimination of the staff and the physician in charge of treatment is obligated to
consequences of failed misconduct. At the treatment stage, the observe the care of the patient and the result of the violation of
patient's expediency may require some secret or complete this assignment is also their civil liability. So, in answering
work, but at this stage there is no such requirement, and it is this question, what is the relationship between the lacks of a
expedient that the patient has all the necessary information to binding law based on the responsibility of the medical staff
protect himself and to eliminate the adverse effects. The and how analyze the medical mistakes in drugs and medicine
doctor should notify the patient of the outcome of the increasing? It should be acknowledged that the lack of law
treatment, whether successful or failing, and if the treatment is cannot alone increase the error and mistake of prescribing and
unsuccessful, inform the patient of the danger. According to using drugs, since the general rules of civil liability may be
the principle of individual autonomy of the patient as well as relied on in such matters, also the Islamic Penal Code, in some
profitability, the physician is obliged to state the error. As cases, Diyah (compensation) has been foreseen for
patients have the right to receive information before compensation.
undergoing a medical or diagnostic procedure, they are 2) When the physician and other members of the staff apply
certainly entitled to be informed of the results of that action. the necessary caution and their behavior implies full caution
Hiding the information from the patient and failing to express and uses all the available scientific means in the diagnosis,
the probability of error in treatment procedure is a kind of they are not responsible. The mistake of technical diagnosis
deception and it reduces the trust of the community in the does not lead to the responsibility of the doctor and the
doctors. The American Medical Association's Code of Ethics medical staff, but the mistake that comes from seduction or
states the doctor's commitment to make an error: "In situations ignorance is due to scientific principles. The most skilled of
where the doctor's mistakes may occur and may lead to these individuals may be mistaken due to the similarity of the
significant medical complications for the patient, the physician symptoms of the disease, and the greatest surgeons are at risk
is legally obliged to provide the patient with all the necessary of blame, and the reason for this is the general weakness of
facts to understand the error may occur. “The most important mankind.
barrier to express mistakes is the doctors of and health staff’s 3) Although they have always called for a doctor's
concern against the patients’ complaints of them. (Asghari, commitment, they should, in some cases, have a commitment
Fariba Vayvari, Neda, 2005, Medical Error Reporting, Iranian to the physician, as well as the medical and pharmaceutical
Journal of Diabetes and Lipid, Special Note on Ethics and staff. For example, a healthy blood transfusion, consistent with
Medical History, p. 28). the patient's blood type, is a commitment to the result that the
Many doctors doubt whether the provision of the patient's responsible physician and his / her health care provider are
benefit by suggesting the possibility of not achieving the deployed. It is also the responsibility of the laboratory
desired outcome of the treatment is worth the enduring of the physician to provide an experimental test, as accurate as
probable legal grievance against them and the threat to their possible.
occupational and subsistence status? However, the less the 4) The fault and mistake are not limited to doctors and clinics.
relationship between the doctor and the patient is weaker and The clinics which are usually admitted the emergency patients,
the information provided to the patient is inadequate, the must also be equipped with all facilities for the treatment of
likelihood of a lawsuit filed by the patient increases and emergency patients, including physicians, drugs and other
patients are upset by the lack of honesty of doctors and the devices, because failure to equip itself is considered to be a
hospital and their apologies. Patients with a false alert will feel failure for requesting compensation.

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