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CHAPTER VII

CONCLUSION OF SUGGESTIONS

Conclusion

Medical negligence is a diversified concept with an unclear content in Iranian law which

nevertheless contains the idea of loss, its repair, and the indemnifying of those who

suffered the loss. Seen in this light, Iranian legal system does not enjoy from a

negligence system. Medical negligence is covered by Zaman liability in Iranian legal

system. Zaman usually defined as a duty of a person responsible for the loss to repair

them. Taken in a broad sense, the compensation process can be of interest to society as a

whole or the individual concerned separately or the two together.

Within the Iranian legal system, medical negligence (whether tortious or criminal) is

distinguished from contractual liability. The latter deals with a person who must answer

for losses caused to individuals by his consent not by accident. Unlike contractual

liability, zaman liability is heterogeneous. It is either tortious or criminal, and the case

law and academic opinion both accept this distinction within the notion of zaman

liability. It is only in the absence of contractual liability that the liability is categorized as

tortious. Liability is contractual if the loss has its source in the total or partial inexecution

of a contract between the person who caused the loss and the person who suffered it.

Medical negligence for its part has its origin outside, or independent of the inexecution of

any contract. Within medical negligence, a further distinction is made between tortious

liability in a strict sense when the loss is caused by an intentional fault on the one hand,

and on the other hand quasi-delictual liability which flows from an unintentional fault

(imprudence, negligence, carelessness, or lack of attention) or of a thing for which one

must accept responsibility. However, whatever the nature of the medical negligence, the

mechanism that it puts in motion is identical. Always it begins with a loss and without

that, there can be no possible liability. This loss finds its source in a generating fact, the

two being linked by a causal connection of cause and effect. It is the rules which govern

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this process from the harmful act or fact to the application of the liability which make up

the institution of liability in general.

From the strictly procedural point of view, the undertaking of a case in medical

negligence presumes knowledge in those who have the rights to take this action. Once

these matters are determined, it is necessary then to determine the legal basis for the court

action undertaken.

In principle, the right to damages belongs to the victim. The victim is the injured in the

matter. The matter has been interpreted broadly by the courts, and the notion of victim

includes any person who has suffered a direct and personal loss as a consequence of an

illegal action imputed to the defendant.

The principle of the autonomy of actions in medical negligence is based on fault and on a

presumption of liability in India.

A) Fault which is the object of criminal punishment as a source of civil liability.

Medical negligence which gives rise to the liability is seen as a criminal offence,

meanwhile in its turn, is the source of civil liability; the victim has the option between

civil process and criminal process. A victim who has chosen civil process forbids

switching over then to the criminal process. But a victim who has chosen criminal

process may switch over then to the civil process. This procedural part excepted, the civil

action will have two characteristics.

In the first place, in commencing action as a civil party, the victim can bring the

compensatory action before the criminal court along with the criminal prosecution. The

procedure is quicker and less costly than the process before a civil court, and often in

practice the victim opts for this method. The constituting of the civil party claim before

the examining judge or the prosecutor sets the public criminal process in motion.

Secondly, it should be noted that even if the action for civil compensation is commenced

in the civil courts, the criminal nature of the act which gives rise to the liability will still

436

be of some significance. Indeed, that is to say first of all, the criminal judgment has force

in the civil courts. The civil process cannot contradict what has been decided in the

criminal court. The civil courts must refrain from deciding until judgment is given in the

criminal action: it is therefore said that the criminal process holds the civil process in

state;

B) The doubling of the action for medical negligence or the possibility of choice which

is open to the victim.

The victim has the choice between an action based on the presumption of liability and

one based on fault.

The point here is to allow the victim a choice of opting for the simplest possible

procedural system that of liability on the basis of fault (Articles 317and 316 of the Civil

Code) and that based on a presumption of liability (Article 295 of the Penal Code). The

latter will generally be chosen because it obviates the need for the victim to bring proof

of the existence of fault of the defendant since that is presumed and as a matter of

principle without consequence for the amount of the final award.

Each of these liabilities operates in different areas and responds to different basic

principles. Therefore from the moment a thing has intervened in the causing of the

damage, concurrently with the fault of the person who caused the damage, it is perfectly

open to the victim to choose one or other of these two liabilities.

In Iranian law, liability is both contractual, criminal and exclusively that. This is in

appearance a line of demarcation between the systems of medical negligence liability

created by Articles 316 and 317 of the Civil Code on the one hand and on the other hand

Articles 295 and following of the same code. The enunciation of the principle is clear.

But the same cannot be said for its operation which shows serious difficulties,

particularly when it is a question of deciding what matters arise within the field of

contractual liability, and which are in the field of criminal and accidental liability

sentence (especially in cases of gratuitous activities).

437

It follows from the application of this principle that the breach or failure to perform the

terms of a contract does not allow the parties to the contract to use Articles 295 and

following of the Penal Code, because the liability is maintained within the strict field of

application of contractual liability and that also includes rules relating to jurisdiction and

limitation periods. This is what causes some writers to say that criminal liability has a

general vocation by contrast to contractual liability which has only a subsidiary role.

This study has focused on a defined area of India and Iran law, namely that dealing with

medical negligence, it is clearly distinguished from medical law which is applied to

medical and law. The subject matter of this study is about the law of obligation or the law

of torts concern with medical activities, and has sought to describe and analyze it in some

detail. In doing so the aim has primarily been theoretical, seeking an understanding of

why the respective legal rules have developed as they have. Medical negligence law has

offered a rich basis for a micro-comparative study of this kind. The medical negligence

law in India and Iran can be seen in both countries to proceed from a common starting

point in allocating medical negligence cases to private law and under the aegis of the

fault principle. Nonetheless, the detailed rules regulating the provision of litigation and

compensation when treatment goes wrong or fails to work differ markedly. In this regard,

the two systems have developed independently from one another in the context of

different legal traditions: there has been little sign of the two seeking to learn from one

another, let alone copy from each other‟s rules or approaches.

In the first chapter of part one, we saw how certain underlying systemic differences

between Iranian and Indian medical negligence law that initially appear significant have

in practice only a limited impact upon the criminal legal rules. This is true in the first

place of the common law and civil law divide between the two countries. Here, quite

apart from the general debate as to how far those approaches are „converging‟, we saw

that within the Iranian criminal tradition, too, medical negligence law is not judge-made

law, which for present purposes cannot be regarded as operating in the same way as the

Indian common law tradition. Secondly, we found that the divergent classification of

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medical negligence claims, in tort in India and criminal law in Iran, is of indirect import.

Such claims have a hybrid quality: the patient agrees to be treated by the doctor (and the

doctor gains his mandate to treat) on account of the hope for benefit; at the same time

there is the risk that the intervention especially if unskillful may make things worse. In

view of this there has,

1. Iranian liability system of law refer to the concept of negligence as fault, it does not

based on reasonableness. In some cases, unreasonable conduct is not faulty at all; in

others, fault implies more than unreasonableness seeks to convey. While in common law

and Indian system of law Negligence is based on reasonableness, not fault. The term

“fault” carries a lot of meanings. The Oxford English Dictionary lists ten separate

definitions for fault, many dating back to the sixteenth century. Excluding entries with a

specialized connotation, there are at least five meanings which have general application.

These are:

(1) A deficiency;

(2) A default, failing or neglect,

(3) A defect or imperfection,

(4) Something wrongly done, including a misdeed, transgression or

offense, and a slip, error or mistake, and

(5) The responsibility for an untoward occurrence.1

Webster‟s New World College Dictionary offers four relevant definitions for fault:

(1) “The failure to have or do what is required” a lack of

something,

(2) “Something that mars the appearance, character or structure” a

defect or failing,

1 Oxford English Dictionary 508 (1995).

439

(3) “Something done wrongly” a misdeed or offense, or an error or

mistake, and

(4) “Responsibility for something wrong” blames.2

Fault based on Ta’adi ( )and Tafrit( ), encroachment (Ta‟addi) consists of

conduct surpassing the limits of permission or ordinary usage3, in relation to a thing or a

right belonging to another4; Taaddi is a broad concept encompassing any illicit act that

causes injury or damage to others, failure to act with the prudence that a reasonable

person would exercise under the same circumstances (Tafrit) consists of omission of an

act which, by virtue of an agreement of by ordinary usage, is necessary for the protection

of another‟s property; and fault includes excessive use and carelessness5. Briefly fault is

either an error or defect of judgment or conduct, or any deviation from prudence or duty

resulting from inattention, incapacity, perversity, bad faith, or mismanagement. Fault

describes the deviation from a standard and violation to a standard including mistakes

and misdeeds which violate personal and social standards of behavior or omissions,

involving defaults, failings or any neglect of an affirmative standard of care. It may even

cover choices, identifying defects of judgment or mismanagement that violate a standard

of efficacy. Or it can cover motives like perversity or bad faith that transgress moral or

religious standards of decency.

It may be questionable that fault has not provide intrinsic or uniform standard of

evaluation despite its broad reach. In fact that is the one thing which fault lacks. In fault

there is no objective standard as much as fault not refers to the subjective materials. Fault

is a factual concept which has its root in the custom and value judgments. Because of its

reach board its standard of evaluation is sometimes subjective and the same in some other

circumstances may be objective. The standard is a very concern to the consequences of

the act or event. Fault simply declares abnormality wherever it exists; it does not decide

what is normal in any given context. Fault can attach to any standard; so it is tied to no

2 Webster's New World College Dictionary 517 (4th ed. 2001).

3 Ebn Godamah, Al Mogani, 1983, vol9 p564, Beirut, lebonan.

4 Shhid Sani,Zeanoldin Ebn Ali, Masaleke Al Afham, vol12, p166, Qum,Iran 1998.

5 Iranian civil code articles 951-952-953.

440

standard in particular. Reasonableness is a standard of evaluation in negligence law; it

allows us not only to assess and weigh our own choices, but also to judge the choices of

others. We assess and weigh our own choices and judge the choices of other by our value

judgments based on our custom and beliefs. Reasonableness suffers from the same sort of

definitional as fault. It can be a deliberative process conducted in accordance with reason,

a decision-making attitude which strives toward sound judgment, or any condition or

state of affairs that is fair, logical or moderate. Reasonableness invariably dovetails with

fault. Since fault is the deviation from any standard, any deviation from the standard of

reasonableness necessarily will be faulty in some sense.

2. There are not any Iranian decisions in the field of medical negligence that refer to

Indian jurisdiction, or vice versa. Exceptions, there are many legal issues which are dealt

with in the same way by the Iranian civil law system of obligation and Indian Common

Law systems of torts, there remain also significant differences between these two legal

systems related to legal structure, classification, fundamental concepts and terminology.

There are many situations where the same legal term has different meanings, or where

different legal terms have same legal effect. This may be cause confusion when we

understand the terminology. For example;

a. The tort of negligence is the most frequently used of all torts and

it is thus the most important tort in Indian system of law.

Negligence protects against three types of harm: personal injury,

damage to property and economic loss. Negligence is concerned

with compensating people who have suffered damage as a result of

the carelessness of other people. There are a mass similarity

between torts system in India and Zemaan Gahri ( torts),

in Iranian liability system of law, but they are not the same ,

Zemaan Gahri ( torts), is not a body of rules, but it

govern by some separate rules, it is a concept more than a system,

this concept is a legal term which determines legal liability for

441

faulty,( Tagsir ) or negligently ( Khtta) , conducts which

are set aside of contract or agreement in general concept, here,

conduct referred to action and inaction.

b. according to Iranian liability system of law the rule of (

) or ( La Zarar v La Zerar fi Islam) means wasting

or to be cause of damage is not allowed in Islam6, it seems as a

doctrine for reducing wasting and lost7and therefore damages, use

of a legal right must be proper and not malicious8, it would be

illegal to use a legal right in improper quality or malicious

motive9, it is an antisocial exercises of a legitimate rights which

result to damages, this rule absolutely prevent the owner of rights

exercise his right without harming to others which is known to no

harm principle for preventing damages.10

In common law and in

Indian negligence law the doctrine of "loving your neighbor" has a

very same legal effect to this rule, Lord Atkin argued that;

“The sole question for determination in this case is legal: Do the

averments made by the pursuer in her pleading, if true, disclose a

cause of action? I need not restate the particular facts. The question

is whether the manufacturer of an article of drink sold by him to a

distributor, in circumstances which prevent the distributor or the

ultimate purchaser or consumer from discovering by inspection

any defect, is under any legal duty to the ultimate purchaser or

consumer to take reasonable care that the article is free from defect

likely to cause injury to health. I do not think a more important

6 Hour Ameli, Mohammad Ebn Hassan, Wasael Shiite ela Thsil Masael Alshriah, vol19,p181, Beirut,

Lebanon. 7 Mir Fateah Marageyi. Abdoul Fateah Bin Ali, Alanawin,vol2,pp442-443, Qum, Iran,1925.

8 Boujnourdi,Mirza Hassan, Gawaed Fiqhi,vol1,p180,Qum, Iran, 1982.

9 Ansari, Mourteza, Makaseb,vol2,p427, Beirut, Lebanon,1994.

10 Naraqi, Moula Mohammad, Awaed Alayam, p18, Qum, Iran.

442

problem has occupied your Lordships in your judicial capacity:

important both because of its bearing on public health and because

of the practical test which it applies to the system under which it

arises. The case has to be determined in accordance with Scots

law; but it has been a matter of agreement between the experienced

counsel who argued this case, and it appears to be the basis of the

judgments of the learned judges of the Court of Session, that for

the purposes of determining this problem the laws of Scotland and

of England are the same. I speak with little authority on this point,

but my own research, such as it is, satisfies me that the principles

of the law of Scotland on such a question as the present are

identical with those of English law; and I discuss the issue on that

footing. The law of both countries appears to be that in order to

support an action for damages for negligence the complainant has

to show that he has been injured by the breach of a duty owed to

him in the circumstances by the defendant to take reasonable care

to avoid such injury. In the present case we are not concerned with

the breach of the duty; if a duty exists, that would be a question of

fact which is sufficiently averred and for present purposes must be

assumed. We are solely concerned with the question whether, as a

matter of law in the circumstances alleged, the defender owed any

duty to the pursuer to take care.”11

“It is remarkable how difficult it is to find in the English

authorities statements of general application defining the relations

between parties that give rise to the duty. The Courts are concerned

with the particular relations which come before them in actual

litigation, and it is sufficient to say whether the duty exists in those

circumstances. The result is that the Courts have been engaged

11

Donoghue v. Stevenson (1932) AC 562.

443

upon an elaborate classification of duties as they exist in respect of

property, whether real or personal, with further divisions as to

ownership, occupation or control, and distinctions based on the

particular relations of the one side or the other, whether

manufacturer, salesman or landlord, customer, tenant, stranger, and

so on. In this way it can be ascertained at any time whether the law

recognizes a duty, but only where the case can be referred to some

particular species which has been examined and classified. And yet

the duty which is common to all the cases where liability is

established must logically be based upon some element common to

the cases where it is found to exist. To seek a complete logical

definition of the general principle is probably to go beyond the

function of the judge, for more general the definition the more

likely it is to omit essentials or to introduce non-essentials. The

attempt was made by Brett M.R. in Heaven v. Pender12

in a

definition to which I will later refer. As framed, it was

demonstrably too wide, though it appears to me, if properly

limited, to be capable of affording a valuable practical guide.

At present I content myself with pointing out that in English law

there must be, and is, some general conception of relations giving

rise to a duty of care, of which the particular cases found in the

books are but instances. The liability for negligence, whether you

style it such or treat it as in other systems as a species of "culpa," is

no doubt based upon a general public sentiment of moral

wrongdoing for which the offender must pay. But acts or

omissions which any moral code would censure cannot in a

practical world be treated so as to give a right to every person

injured by them to demand relief. In this way rules of law arise

12

Heaven v. Pender (11 Q. B. D. 503, 509.).

444

which limit the range of complainants and the extent of their

remedy. The rule that you are to love your neighbor becomes in

law, you must not injure your neighbor; and the lawyer‟s question,

who is my neighbor? Has receives a restricted reply. You must

take reasonable care to avoid acts or omissions which you can

reasonably foresee would be likely to injure your neighbor. Who,

then, in law is my neighbor? The answer seems to be - persons

who are so closely and directly affected by my act that I ought

reasonably to have them in contemplation as being so affected

when I am directing my mind to the acts or omissions which are

called in question.”13

c. In common law duty is the base of liability of a person to be

punished, forced to compensate, or otherwise subjected to a

sanction by the law.

“You must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your

neighbour. Who, then, in law is my neighbour? The answer seems

to be - persons who are so closely and directly affected by my act

that I ought reasonably to have them in contemplation as being so

affected when I am directing my mind to the acts or omissions

which are called in question. In my opinion, such a duty only arises

towards those individuals of whom it may be reasonably

anticipated that they will be affected by the act which constitutes

the alleged breach… Can it be said that John Young could

reasonably have anticipated that a person, situated as was the

appellant, would be affected by his proceeding … at the speed at

which he was travelling? I think not. His road was clear of

13

Supra note 12.

445

pedestrians. The appellant was not within his vision, but was

standing behind the solid barrier of the tramcar. His speed in no

way endangered her. In these circumstances I am unable to see

how he could reasonably anticipate that, if he came into collision

with a vehicle coming across the tramcar, the resultant noise would

cause physical injury, to a person standing behind the tramcar. In

my opinion, he owed no duty to the appellant, and was, therefore,

not guilty of any negligence in relation to her”14

The Iranian Etlahf ( ) rule has the same legal effect by that

definition, that is; Lexically the word Etlahf ( )comes from

the Arabic language; it means destruction; Iranian lawyers use the

word Etlahf( ) as the terminological word with the same

meaning but with its own rules. It applies in a situation in which

anyone causes damage to another person directly. He will be held

responsible and must either provide its equivalent or its value, or

compensate the damages, whether or not the damages are

intentional and whether it was the actual property or profits there

on, and bodily injuries, that were caused. If he causes defect or

damage to such a property, he is responsible for the depreciation in

price and compensation. We have a duty to do no harm, it is a legal

duty under Iranian liability system of law which is very similar to

the concept of duty to take care according to Indian common law.

d. the rule of Tahsbib( ) is almost as the concept of the

standard of care in common law though Tahsbib( ) is not

something like as standard but we used it in some cases like as

cases of risk or foreseeability. An example for Tahsbib is a

situation where a person digs a ditch and another places an

14

Bourhill v. Young [1943] AC 92.

446

obstacle in its way and then a third person falls into the ditch while

passing by, according to the rule of Tahsbib, the person who places

obstacles in the way of the digs is responsible because of

carelessness in placing the obstacles; In this mechanism the

intention is irrelevant as well. It has been established at common

law that those who attempt rescue owed a duty of care by those

who create dangerous situations, in which it is forseeable rescuers

may intervene. This duty can apply to professional rescuers such as

doctors or lifeguards as much as ordinary individuals, and may

even apply where the rescuer engages in a careless or reckless

rescue attempt. The basis for this liability was first recognised in

Haynes v Harwood. In Wyong Shire Council v Shirt Mason J

observed that:

“In deciding whether there has been a breach of the duty of care

the tribunal of fact must first ask itself whether a reasonable man in

the defendant‟s position would have foreseen that his conduct

involved a risk of injury to the plaintiff… If the answer is in the

affirmative, it is then for the tribunal of fact to determine what a

reasonable man would do… The perception of the reasonable

man‟s response calls for a consideration of the magnitude of the

risk and the degree of the probability of its occurrence, along with

the expense, difficulty and inconvenience of taking alleviating

action and any other conflicting responsibilities which the

defendant may have.”15

e. under Indian common law negligence system the Causation is

concerned with consequences and non-consequences in a factual

15

Wyong Shire Council v. Shirt (1980).

447

sense. In Barnett v Chelsea Hospital16

, a patient, the deceased, had

been admitted to hospital with severe vomiting and the doctor

concerned failed, negligently, to diagnose the man‟s condition. The

medical evidence showed that the patient would have died anyway,

from poisoning as a result of ingesting arsenic, irrespective of the

negligence in diagnosis, which was not an operative cause of the

death. In each case the basic issue to be determined is whether the

defendant has materially contributed to the damage; his tort need

not be the only cause of the injury. Remoteness is relevant at the

stage following the establishment of a factual connection between

tort and damage. The same approach have been adopted under

Iranian liability system of law, the defendant‟s negligence must

cause or materially contribute to the damage suffered by the

claimant. There must be a causal link between the act of the

defendant and the claimant‟s injury. This is a question of fact

which must be proved on the balance of probabilities by the

claimant. Courts have accepted that it is to be resolved as a matter

of common sense and convenience, rather than as a scientific or

mathematical formula.

3. Indian and Iranian law go on to adopt similar starting positions as to the circumstances

in respect of medical treatment, both systems distinguish between injuries on the one

hand that are attributable to fault on the doctor‟s part and on the other those that are not.

As noted, the „fault principle‟ may be regarded as privileging the abstract „Medical

Paternalism‟ of the physician. The activity of the doctor is penalized simply on account

of an adverse outcome of treatment (a matter partly beyond his control), unless he prove

that his conduct does not fall below the standard of a reasonably skilled doctor, thus

exposing the patient to an unjustified risk of harm. Moreover, the risk in question must

16

Barnett v. Chelsea Hospital [1969] 1 All ER 428.

448

also materialize: there is no duty to compensate if, quite apart from anything the doctor

did or failed to do, the same injury would have occurred.

The choice between fault-based and negligence approaches to liability is not a

straightforward dichotomy, but admits of degrees. In the first place, the law in assessing

the doctor‟s conduct may take a variety of stances in determining when he took the

legally required care. In India the legal duty owed by doctors to their patients is that of

reasonable care, defined as that level of care expected of the reasonably competent

doctor, that is, a professional standard. A doctor is usually held to the objective standards

of fellow doctors, given the circumstances of the case. In this regard, the Indian courts

traditionally allowed doctors significant latitude in their treatment practices. Thus,

provided the doctor showed he complied with a practice endorsed by other doctors at the

time, he would generally escape an imputation of fault. By contrast, the Iranian courts‟

approach has from the outset been more skeptical of doctors‟ conduct and clearer in the

need to subject it to scrutiny. This is true both as regards their greater hesitation in

exculpating the defendant on the basis of favorable testimony from other doctors. As

noted, the burden in the case of injury from risks deemed within the doctor‟s sphere will

be placed on the defense to show that every possible precaution was taken. Moral

conception of fault has its history in theory of rights and then in the law of obligation, the

ultimate source of this theory based upon interests and equality, Rights protects interests;

duties take interests away, rights give their holders the power to limit the interests of

others. Duties identify the specific individuals who are subject to these powers. Law is a

mechanism for distributing interests of people both before and after their lives intersects.

Their greed is under control by law. Reasonableness is based on reason. Reason is both

an intellectual faculty for making decisions, and a process by which conclusions are

logically drawn from premises. Thus, reason is exclusive and prescriptive. On the one

hand, reason excludes passion or prejudice as a basis for decision-making. On the other

hand, it requires that decision-making be deliberative, informed and logical. These are

values materials which inform our sense of right and wrong. Thus, the concept of

reasonableness is inexorably tied to these foundational values; those values substantiate

449

objective standard of negligence law, critically the point here truly appreciate the gaps

between reasonableness and fault, is not considerable.

4. Wrong and right are the sources of criteria by which rights and duties are distributed.

The criteria derive from the values of interests and equality. The legal criterion gives

people extra latitude to secure their interests. Their interests are varied; so the criteria

permit variations on interests, Wrong means of neutralizing those advantages, while the

criteria permit variations on interests, the ultimate collective objective is to return all

players to a state of right. So long as the law abides by this premise, its rules will be

considered reasonable, even though they do not always treat everyone the same. This

standard accepted by the law of negligence as much as the fault theory in civil law

system. A very significant way in which the Iranian system exhibits a more „patient-

friendly‟ stance than that in India concerns the greater ease against the background of

evidential uncertainty with which causative negligence may be shown as a question of

historical fact. This has occurred somewhat paradoxically from the starting point of more

difficult prima facie rules. Here it is as if the sharper contrast between the substantive law

elements, and the ancillary rules establishing their presence, has forced the Iranian courts

into an explicit choice: one they have made in favor of the patient. Thus, in derogation

from the normal position in matters of criminal proof, they have developed a number of

special concessions, casting the burden upon the defendant doctor in respect of a given

question. This includes, as we saw, presumptions as to the primary facts underlying the

claim, as well as defining circumstances where the doctor has the onus of explaining

how, consistently with due care, certain forms of iatrogenic injury could occur. In this

regard, one of the most striking aspects of Iranian law is the reversal of proof as to

causation applied in cases of „gross negligence‟. Here the result is not to promote strict

liability as such: ex hypothesis the doctor‟s conduct was faulty. Instead, the effect has

been to chip away at the second main plank of corrective justice, viz factual causation.

The defendant doctor is singled out because he created a (grossly) unjustified risk to the

patient, and this suffices for liability even though in many cases the injury did not stem

from that risk, but would have occurred anyway. By contrast, in England the courts have

450

consistently rejected arguments for reversing the burden of proof of causation in medical

negligence cases. In doing so, they have adverted to the potential costs to the National

Health Service. In the result, the Iranian system can be seen to generate more „false

positives‟, and the English system more „false negatives‟ (relative to whether the doctor‟s

fault really played a necessary part in the harm). Interestingly, in this context, where both

countries agree is in rejecting the alternative possibility (in misdiagnosis cases) of

proportionate recovery based on the loss of the patient‟s statistical chance of a cure.

6. An important area where Iranian law is more helpful to the patient than the equivalent

Indian law is in relation to claims for „disclosure of the risk ‟. Here the differences

between the two systems that conduce to this result are two-fold. In the first place,

divergent views are taken of the failure by a doctor to divulge risks (that subsequently

materialize and cause iatrogenic injury). In Iran this renders the patient‟s consent invalid

and the entire subsequent treatment unlawful. In India (and other common law systems)

the treatment remains lawful, and the patient instead has at most a claim for negligent

breach of duty. This has significant implications in terms of the structure of such actions:

in Iran this form of claim brings with it notable advantages for the patient in matters of

causation and proof; by contrast in India, though recognized as a separate category,

disclosure of the risk is dealt with in a similar manner to a treatment negligence claim. In

the second place the question of what amounts to fault in this context (or in other words,

what risks the doctor was legally obliged to disclose) receives different answers. In India,

the law has moved laboriously towards recognizing the patient‟s right to know of those

risks that would matter to a reasonable person. By contrast, in Iran a highly subjective

approach is taken, stressing the importance of the patient‟s individual autonomy and at

times requiring the disclosure of utterly negligible risks. The upshot is that in the latter

country such claims have become a distinct and popular avenue of redress, allowing the

patient to circumvent many of the proof difficulties in showing treatment negligence (in

respect of the same injury). Unsurprisingly the different attitude of the Indian and Iranian

courts to medical negligence claims has had an impact upon the reform dynamic in the

respective systems. Here we identified a common rejection of the option of no-fault

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liability in the medical treatment context, based both on the potential financial costs and

the difficulties in designing an effective scheme. Otherwise, though, there has been

greater dissatisfaction in Indian with the operation of private litigation in this sphere. In

particular, the perception has been of a failure to give sufficient weight to the patient‟s

interests. By contrast, in Iran the latter is better provided for. Not only is a higher rate of

claims evidently seen as acceptable, but the chances (for the individual patient) of

obtaining damages are higher. Overall, it appears that significantly more resources have

been invested there into compensating for medical accidents. In this regard, we saw too a

key extra-legal initiative in the form of the quasi arbitration boards, established by the

medical profession and government to help investigate and settle claims. In India, the

Consumer Protection Act is a piece of comprehensive legislation and recognizes six

rights of the consumer, namely:

1. Right to safety.

2. Right to be informed.

3. Right to choose.

4. Right to be heard,

5. Right to seek redressal and

6. Right to consumer education.

Consumers with complaints can approach the Commissions at the District, State and

Central level. There is no court fee and the consumer does not have to go through

lawyers. The Supreme Court declared that doctors were like any other providers of

service under contract, and therefore is under the same obligation to compensate the

purchaser (patient) for any deficiency in the quality of their services. In Iran an initiative

with some similarities to that scheme is to be introduced following legislation by the

government, albeit of a more formal and centralized character. Government is in charge

of providing a regulatory system for safety measures related to the production and

distribution of goods and services. This is one of the objectives of Tazirat Hokomati (

) in Iran means supervision over the market with regard to abiding by

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commodity safety rules, fair play of the market forces, and general compliance of ethical

values and legal regulations on the part of the actors in the market. At a conceptual level,

the above difference may be analyzed in terms of the interaction of corrective and

distributive justice concerns. As regards the former, it was noted earlier that the fault

principle, underpinning the law in both countries, strikes a balance between the ex ante

interests of the parties to an injurious interaction: the defendant is liable where he causes

injury by failing to act as a reasonable person, but not otherwise. In this regard, the

principle has an intuitive appeal in regulating the relations of private actors, viewed as

abstract pre-social entities. Nonetheless, in the empirical social world injury represents a

tangible setback to the claimant‟s flesh and blood interests. A previously fit person can

no longer earn a living, with serious consequences for himself and his family and knock-

on effects for society. By the same token, the impact of a liability finding upon the

defendant may need to be considered, e.g. if ordering damages for a venial slip will

reduce the latter to poverty. It is at this point that distributive justice concerns enter the

picture, and may require a departure from the formal demands of corrective justice.

Importantly, though, the practical expression of such concerns will turn on the

organization and resources of a particular society. Thus, under one set of arrangements

(e.g. where the putative injurer carries liability insurance) it may appear expedient to

order him to make reparation whether or not the claimant‟s injury was really attributable

to fault. Here the pendulum will swing from fault-based liability towards strict liability.

Conversely, though, considerations based on social welfare could move it the opposite

way towards a denial of liability notwithstanding fault and causation. This would be so if

it were thought better to use a scarce public resource for the on-going benefit of the

majority (e.g. persons requiring future medical care), than to compensate the minority

injured in the past. In the context of medical malpractice litigation, the Indian courts have

in their judgments tended in the second direction. It is true, they have not accepted

shortages in resources as an explicit basis for a reduction in care; nor, though, have they

been prepared actively to set standards. Above all, judges have refused to be swayed by

the patient‟s practical difficulties in vindicating his rights (due to evidential

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uncertainties). By contrast, the German courts have been influenced by distributive

justice considerations in the first direction, towards a spreading of the risks of medical

injury. There are, though, other subtle differences in values (stemming from historical

and constitutional factors) that arguably color the different legal approaches in the two

countries. One matter in respect of disclosure risk cases is that the Iranian courts have

invoked considerations of patient autonomy more readily than the courts in Indian. Not

only have they imposed far-reaching disclosure duties, but there has been a down-playing

of factual causation in such cases. From a pure corrective justice standpoint the effect of

the Iranian rules leads to over-compensation: the doctor will be liable even where it is at

best doubtful that his faulty non-disclosure made any difference to the patient‟s decision

to have the injurious treatment. Admittedly, it is ultimately difficult to be sure in such

cases how far protection of autonomy is the guiding consideration. This is because the

courts‟ approach is at the same time consistent with (and explicable in terms of) their

previously identified disposition to spread the risks of medical injury. At a more diffuse

level, it is interesting to speculate how far differences in the perception and prestige of

the medical profession in India and Iran may have had an influence upon the incidence of

liability findings. This is a difficult argument to substantiate, but the Bolam test in

England (in its pre-Bolitho guise), seems to have stemmed at least in part from an

instinctive judicial deference to medical skill, according doctors a degree of latitude not

shared by other professionals. Similarly, Indian judges have reacted strongly against the

possibility of doctors being held to account in battery. By contrast, in Iran, a less

sanguine view of medical professionals appears to prevail. It is by no means rare for them

to be charged with criminal offences in respect of bona fide, faulty treatment of patients,

something almost unthinkable in India. So far we have been concerned with differences

relevant to divergent outcomes reached in medical negligence cases in India and Iran.

However, other key differences are of a doctrinal nature going to the structure of the

relevant rules in each county. Indeed it can be argued that differences of this type are

more far-reaching than those of outcome. Thus, it seems clear that the outcome of a claim

based on the same underlying facts would often be the same in both countries. It is only

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comparatively rarely that, say, an injured patient would obtain damages in Iran, where in

identical circumstances, he would fail in India. By contrast, differences of doctrine are

all-pervasive and will indeed usually be the first thing to strike the comparative observer.

Unlike differences of outcome these differences are less amenable to an explanation in

terms of divergent societal values. Instead, they stem from the nature of positive law as a

historically conditioned, dynamic system of rules. Thus we may begin by noting that

there are often high-level differences in the way legal phenomena are organized in

different systems, reflecting divergent traditions e.g. the fact consideration is required in

Indian but not Iranian contract law, or that Indian law has developed separate torts of

battery and negligence, for intended touching and unintended harm, respectively. It is

also apparent that, in developing the sub-rules in a certain area, such as medical

negligence, the courts will try to ensure their coherence with these broader principles. In

doing so, though, they may not infrequently be confronted with a tension between the

specific and general:

A rule that works well enough overall in governing injurious interactions may fail to do

justice in that area (due to factors specific to that sphere of life). In such cases there will

be pressure to modify the rule by developing exceptions. However, a significant point

here, with respect to comparing discrete legal systems, is that, since the general rules

differ, these pressures will occur in different places. In the course of this work we have

seen various illustrations of this phenomenon. Thus, a defining feature of Iranian medical

negligence law is the elaborate system of secondary rules that allow for proof

modifications in various circumstances. The courts have fashioned these as a creative

response to the patient‟s proof difficulties, an upshot of the onerous civil standard of

proof in Iranian law. In India, with its lower standard of proof, and a judiciary less

inclined to encourage litigation against doctors, there is nothing comparable. Another

example of how general features of private law exert long-range influence on the specific

rules of medical negligence concerns the wrongful non-disclosure of risks. Here, the

common law courts have held the patient‟s consent to medical treatment to be valid. In

doing so they have avoided exposing the doctor to the stigma of a battery action (with its

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criminal law associations). At the same time, the choice to address non-disclosure claims

in negligence has brought in its train further consequences for how such claims are

structured (which may also be seen as more consonant with the requirements of

corrective justice). By contrast, in Iran with a different structure of tort liability the issue

of stigma does not arise in the same way in non-disclosure cases. There the courts have

found consent to be vitiated, an approach that better serves the distinct goal of patient

autonomy (and sidesteps the problematic proof rules in treatment negligence cases).

Ultimately, as this suggests, the factors that have influenced the development of the rules

within each legal system are a subtle amalgam of outcome-led and doctrinal factors, the

first take the form of a disposition (crudely, to be more or less patient-friendly); the latter

operate at a systemic level, presenting the courts with antinomies that they have solved

according to their underlying disposition. In the light of this, it remains finally to ask

what the Indian and Iranian systems may learn from one another in this field. In terms of

immediate practical consequences, the answer is in fact unclear. It is certainly true that a

rule or approach adopted in one country may be suggestive for the other. For example, an

Indian lawyer may be moved by the Iranian rules as to „fully-paternal risks‟ to ask how

far a similar approach would be feasible in his country. More generally, when a divergent

stance has been taken on a doctrinal question, the other system offers a window on how

things might otherwise look. Thus, an Iranian lawyer, interested in the implications of the

courts there reclassifying the non disclosure of risks as an injury to the patient‟s

personality right, rather than a Tahsbib( ), may consider how such claims are dealt

with in negligence under common law. Conversely, the Indian lawyer gains a sense, from

the Iranian rules, as to how a battery-based approach might operate. Nevertheless, the

question of whether a given change is actually desirable in terms of its outcome must

ultimately be answered from within the relevant system (in the light of the particular

social arrangements there). Secondly, as discussed, the individual rules in each

jurisdiction draw their color from their surrounding context, making the prediction of

how they will work elsewhere problematic. In this regard, it is telling that the courts have

largely eschewed contact with the rules and doctrines of the other country. As noted at

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the outset of this chapter, to the extent that judicial notice has been taken at all, this has

been in respect of the basic choice whether a given form of injury should qualify for

protection, rather than in resolving subsequent, more detailed issues.

Instead, arguably the greatest benefit of a theoretical comparative study of the type

pursued here is that it furthers the understanding of one‟s own system. The legal scholar,

in the very act of comparison is propelled beyond the categories and concepts of his

particular jurisdiction. This forces a direct engagement with the underlying issues,

helping to bring the quirks and pre-suppositions of that system into sharper relief. By the

same token, the scholar may emerge.