In our laws and regulations, there are several words of error, negligence and fault that are sometimes used synonymously and interchangeably, but we must note that negligence and fault can be considered as examples of error from both civil and criminal aspects. Of course, medical error is equivalent to a criminal error.
The difference between “medical malpractice” and “medical malpractice” is that in “medical malpractice” there is a kind of intent and the previous will is involved, but in “medical malpractice” there is a kind of negligence that happens by mistake.
Medical malpractice has instances of recklessness, carelessness, lack of skills, and disregard for government systems. The legislator in the Islamic Penal Code adopted in 1392 considers the examples of medical malpractice or the same criminal error as “recklessness” and “carelessness” and lack of skills and non-compliance with government systems, are subject to carelessness and carelessness.
Most of the complaints of patients or those around them are from doctors about “misdiagnosis”, “carelessness” and “carelessness in treating patients” or “postoperative care”.
According to the law, medical offenses include negligence in the performance of duty; Non-observance of scientific, religious and legal standards; Revealing the secrets and type of disease; Committing acts contrary to medical practice; Attracting the patient through advertising is misleading and deceiving the patient.
In addition to the private aspect, the fault has a public aspect
The fault has a general aspect except in special cases that the legislator has made an exception; Thus, medical guilt, in addition to having a private aspect that is accompanied by compensation and payment of ransom by the offender, also has a public aspect and the perpetrator is punished with imprisonment and a fine or deprivation of social rights.
How to prove medical malpractice
In addition to the Islamic Penal Code, which deals with the nature of medical malpractice and related crimes and prescribes the punishment for crimes and misdemeanors, the Code of Criminal Procedure also states how to prove a claim and how to prove and deal with it. In this regard, medical fault is proved by obtaining an expert opinion from the Forensic Medicine Organization or the Medical System Organization.
The General and Revolutionary Courts are the authority to hear cases of medical malpractice. Also in Tehran, a special district of the prosecutor’s office called the “Special Court for Medical and Pharmaceutical Crimes” deals with this case separately.
In some provincial centers, a special branch of the General and Revolutionary Courts is the reference for handling these cases; Of course, it should be said that the authority to investigate medical disciplinary misconduct and violations is the disciplinary courts and the primary, review and higher disciplinary boards of the Medical System Organization.
Mechanism for dealing with medical malpractice
The Medical System Organization has a procedure for dealing with medical malpractice. Experts will be appointed to investigate the matter and will seek redress if the plaintiff proves a negligence on the part of a physician or nurse.
The Ministry of Health and Medical Education and medical universities across the country are responsible for inspecting and supervising medical institutions, offices and treatment centers, and if they encounter a crime or violation, they should be referred to the Special Court for Medical Crimes and, as the case may be. Send medicine or special branches of the general and revolutionary courts in the provincial centers or special medical and pharmaceutical branches of the government penitentiary organization or the disciplinary courts of the medical system.
Of course, it should be emphasized that the authority to investigate medical malpractice, as mentioned, is the Special Court for Medical and Pharmaceutical Crimes in Tehran and in other cities, the Public and Revolutionary Courts.
According to Article 495 of the Islamic Penal Code adopted in 1392, whenever a physician causes loss or bodily injury in the treatment he performs, he is a guarantor of the blood money, unless his action is in accordance with medical regulations and technical standards or he has been acquitted before treatment. Do not commit any crime, and if the acquittal of the patient is not valid due to his immaturity or insanity, or it is not possible to acquit him due to anesthesia and the like, he will be acquitted, but the patient will be acquitted.
Note 1 of this article states that if the doctor is not negligent or at fault, there is no guarantee for him in science and practice, even if he has not been acquitted.
Also, according to Article 496 of the Islamic Penal Code, the physician is a guarantor in case of loss or bodily injury in the treatments that he orders to be performed on the patient or nurse, unless he acts in accordance with Article 495 of this law.
According to notes one and two of this article, in the mentioned cases, whenever the patient or nurse knows that the order is wrong and causes injury and loss, and nevertheless acts according to the order, the doctor is not a guarantor but the damage is documented to the patient or nurse. . Also in case of amputation or injuries caused in medical treatments, according to Article 495 of this law.