Basis of Physician’s Civil Liability in Necessary and Unnecessary Treatments in Iranian and American Law

Medical treatments are divided to essential and unnecessary treatments. Treatments and cosmetic surgery in the category of unnecessary treatments and reconstructive surgery and other treatments for example heart, liver and kidney transplant surgery placed in the category of essential treatments. Compensation basis in essential treatments in Iranian law, among basics of the negligence, strict liability or no fault liability and guarantee, is fault-based liability but according to article 495 of Islamic penal code approved in 2013, accepted constructive fault in this way physician can prove his lack of fault. It is noteworthy that in this type of treatments, obligation of physician is the obligation to the instrument. In the United States law, compensation basis in essential treatments, among basics of the negligence, strict liability or no fault liability and the welfare principle, the theory of fault is absolutely accepted. That’s mean patient can prove the physicians fault through four elements, a professional duty owed to the patient (standard of care), breach of such duty, resulting damages and injury caused by the breach. Also should be noted that obligation of physician doing these kinds of treatments is the obligation to the instrument. The theory of fault not applicable on compensation in unnecessary treatments in Iranian and American law and the obligation of physician is in both legal systems, obligation to the result and the basis of the physician liability doing these kinds of treatments, is strict liability or no fault liability. Also physician has extensive and difficult duties and obligation.