تحول مبنای مسئولیت مدنی پزشکی در حقوق فرانسه؛ ارائه راهکارهایی برای تحول در حقوق ایران

This article examines the evolution of the basis for medical civil liability through the lens of judicial practice, legislative experiences, and French legal doctrine. It employs a descriptive-analytical research method. The aim is to demonstrate the shortcomings of Article 495 of the Iranian Islamic Criminal Code regarding physician liability. This article argues that Article 495 assumes no medical malpractice, which stands in contrast to comparative studies advocating for expanded physician and medical center liability without fault, alongside solutions for compensating victims.
The study of French law reveals a shift from absolute physician immunity to expanded no-fault liability through various legal tools. In French law, the principle of fault-based liability for medical malpractice has numerous exceptions. Due to the difficulty of proving medical fault and the need to compensate victims, even in cases where no fault exists in the conventional sense, France utilizes a dual basis for physician and healthcare center liability. Additionally, proving fault has been simplified.
Islamic jurisprudence, however, distinguishes between loss and attribution when determining physician liability. In the first case, responsibility is without fault (except under the rule of benevolence), while the second case involves fault-based responsibility. Article 495 of the Islamic Criminal Code, however, solely considers physician liability to be entirely fault-based. In most cases (as evidenced by patient acquittals in hospitals), the burden of proving fault falls on the injured party. Furthermore, the article fails to address the liability basis for hospitals and medical centers, both private and public, nor does it address liability for defective medical products and equipment.
Therefore, the provision in Article 495 not only contradicts jurisprudential teachings, but the Iranian legislator has also taken a path entirely opposite to global developments. While general rules in gross negligence cases dictate that mere allegations of bodily harm are sufficient to establish liability and compensate the victim, the possibility exists for gross negligence involving a physician. For example, during abdominal or chest surgery, if scissors slip from the physician's hand and blind the patient, the physician would be liable under general rules. However, in discussions of physician liability where a crime is attributed to the doctor unintentionally and without fault, the legislator may have excluded compensating the patient to avoid imposing financial burdens on relatives ("aqeleh").
French law offers an alternative. Instead of imposing undue liability on the physician or their kin, other institutions, such as insurance or compensation funds, can be utilized. Although French and Islamic legal systems reach similar outcomes through different paths, minor discrepancies remain.
 
Similarities:
* French law transitioned from absolute physician immunity to "fault-based liability" as a general rule. However, in specific areas like medical procedures, nosocomial infections, and mandatory vaccinations, strict liability applies to medical professionals. Disagreements persist regarding damages caused by faulty medical equipment.
* Islamic law has always recognized physician civil liability. Since most medical damages are either losses where the doctor is considered a benefactor or are caused by glorification (according to the rule), the principle should be "fault-based liability" with "no-fault liability" as an exception.
 
Differences:
* French law considers hospital-acquired infections and mandatory vaccination to be strict liability without fault. Islamic law, on the other hand, views these damages as caused by fault and thus requiring fault-based liability.
* Both systems ultimately rely on no-fault liability for treatment-related incidents, which are the most common type of medical accident.
* French law utilizes a national solidarity fund called the "National Compensation Office" to compensate for damages arising from strict medical liability, ensuring compensation without overburdening the medical community. These examples of no-fault liability are increasing.
* Article 495 aligns with neither system and is subject to criticism.
 
Recommendations:
 The Iranian legislator should amend Article 495 to:
* Define the liability of hospitals and medical centers.
* Address liability arising from defective medical equipment.
* Base the "basis of medical civil liability" on Islamic law as described above.
* Model the "compensation method" after the successful French example in traffic accidents (Compulsory Insurance Law 2015), placing the responsibility for compensating victims on a special fund or liability insurer with a designated compulsory insurance structure.
* The legislator can utilize French law to categorize certain medical accidents as attributable causes for liability, even without established fault.
* Jurisprudence can adopt a similar approach to French courts by presuming physician fault in specific areas to facilitate compensation for the injured.