مبانی مسئولیت مدنی پزشک با نگاهی به لایحه جدید قانون مجازات اسلامی

  One of the important issues which are discussed by the law today is the civil liability of Physicians, something which was silence in the civil code and civil liability code of n1339 (1960), however the Islamic penal code has predicted some regulations for it. The civil liability of Physicians in the comparative law is principally based on the theory of fault. That is, a Physician is found to be responsible and liable to indemnify the loss inflicted on the patient when his (her) fault is established. This solution is compatible with the general rules of the civil liability while it is also justifiable with the expediency of the patient and the society. Nevertheless, the Islamic penal code of 1375 (1996) apparently accepts the no fault responsibility of the Physician pursuant to the words of a group of Imamiyeh Jurisprudents which seems to be subject of criticism although the aforementioned rule has been adjusted through accepting the clause of innocence (clause of non-liability). Indeed, acquisition of clause of innocence shall not totally exempt the Physician from liability because in this presumption too he shall be responsible and liable to indemnify the loss upon establishment of the fault.   Fortunately, the new Islamic penal bill adopted in 1390 (2011), which has not been put into force yet, has deviated from the former rule and accepted the basis of fault in the Physicians liability however the basis of liability in this law seems to be the presumed fault and not the established one. In other words, the law presumes the Physician to be liable unless his faultlessness is established. Acquisition of clearance from guarantee too, has been predicted in the new bill whose benefit is the replacement of the burden of proof.