فصلنامه حقوق پزشکی
پیاپی 53 (تابستان 1399)

From Plato to Farabi, and even to this day, man has been searching for earthly paradise. Both philosophers sought utopia. It seems that the disagreement of thinkers and purgatory with the seemingly incompatible ideal of the mental ideal and the objective gloomy reality has made it impossible for human beings to easily achieve the ideal utopia. Clarifying the differences between thinkers and their pathology may one day help humans reach Europe. This paper is written in a descriptive-documentary analysis and comparative approach. The aim of this study is to investigate the differences between the ideas of Plato and Farabi in the field of medical law. To achieve this, it is necessary to go beyond the path of public law, because neither of these two thinkers has developed a specific treatise on medical law. Each of these two philosophers chose a path to achieve an ideal society. Plato resorted to pure idealism, or perhaps even extremism, to try to reach the utopia, while the ways in which Farabi reached the desired society, despite his idealistic attitude, were further refined. Given that al-Farabi had made changing and aligning with alteration a top priority for his knowledge, it seems that this attitude was much more reliable than Plato's approach and could lead man to an ideal society. Stability and change are the two key words in the path of Plato and Farabi's thought, all of Plato's ideas are based on stability and all of Farabi's ideas are based on change.

Physicians all over the world are responsible for the care, recovery and treatment of patients, but sometimes as a result of inadequate care or negligence of Physicians, there is a great deal of damage to patients, which in addition to the legal aspect of the case that results in substantial damages, can result in criminal or police liability of physicians. In principle, criminal law does not interfere with errors because of the deliberate nature of the crimes. Because it is unjustifiably excluded from the scope of criminal law, criminal law only permits its individuals to intervene in unintentional acts, only in very rare and important cases, such as the protection of their physical integrity. Neglect and error, except in exceptional cases, should not fall within the scope of criminal law. If unintentional behavior is not recognized in criminal law, physician behavior should be excluded from criminal law. However, the Iranian legal system has classified such actions as unintentional offenses and within the jurisdiction of criminal authorities. Even in the British legal system, a competent criminal authority is under consideration even for the presumption that the punishment for unintentional misconduct would result in physical harm. Harmful acts committed by a physician such as abortion are only a crime if they are deliberately committed, except in the event of death by the physician, which the legislator has in any case mandated imprisonment to commit unintentional crime. It is the fault of the perpetrator that involves not following scientific and practical standards. The findings of the study show that both legal systems consider the criminal record to be applicable if the physician has committed gross negligence.

Compensation for damages caused by medical accidents is one of the important issues that have led to the transformation of social life into responsibility. The increasing number of accidents caused by medical practices and the consequent increase in casualties to patients makes it more than necessary to investigate the issue. While the legal system of some countries, including France, has taken collective initiatives to compensate for damages caused by medical practices, Iran's rights are subject to compensation only in the context of civil liability based on the physician's fault. In answering the question of whether the developments in the medical law of other countries appear to be plausible in the Iranian legal system, it is possible to benefit from the aforementioned developments in applying collective compensation methods in our country. Have. The present study aims at explaining the possibility of civil liability in compensation of patients after expressing their personal responsibility decline, the collective ways of compensation and the possibility of designing such practices in Iranian legal system respectively. Finally, the findings indicate that, given the inadequacy of the physician's fault for compensating patients and considering the availability of legal and jurisprudence, institutionalizing methods such as expanding insurance and establishing a fund to compensate patients for damages in the legal system. Our country will be very efficient.

Medical errors included diagnostic error, medication error, surgical error and also infections associated healthcare can causes creation economic and moral damages to the patient. In the meantime, uncertainties about how to evaluate and compensate moral damage as a result of these mistakes, has forced different legal system to adopt different approaches. This article will try to examine, Iranian and American law approach for moral damage due to medical errors with a comparative attitude. In this regard in Iranian law although article 14 of the criminal procedure code of 2013 generally accepted moral damage as mental injuries or indignity and personal, family or social credit and it has ended to the previous ambiguities in this regard; note 2 of this article prohibit monetary compensation for such damages by prohibiting regulation about moral damages in respect of crimes involving blood money including medical errors. However, non-financial compensation such as the required apologize will still be available in Iranian law. In American law, in contrast, courts have issued multiple vote, have accepted monetary and non-financial compensation for different moral damages related to medical errors specially pain and suffering, emotional injuries, grief and sadness caused by the death of one’s relatives, apparent deformation of the body and loss of consortium. In this country, the task of evaluation and determination of moral damages has been left to the jury. However, determining of the high amount for moral damage and subsequently increasing actions of defensive medicine by physicians and also increasing costs for professional liability insurance called a civil liability crisis, have forced the legislator to reform in many states. Determining of capping non-economic damages related to medical errors should be considered the most important manifestation of such reforms in American law.

Article 51 of the Islamic Penal Code of 2013 states that insanity while committing a crime at any stage shall be subject to criminal liability, but this substance has been implicated in insane people and its inclusion in bipolar patients has been controversial and the purpose of the study is to include it. The insanity must reach the trustees of the court. For bipolar patients, it is difficult to identify their condition and therefore cannot be simply dismissed. Therefore, the inclusion of this article is controversial and if it is not proved, there is a judicial adjustment procedure for offenders. One of the sources of this law is the knowledge of the judge. The judge's knowledge of crime is legally valid. Therefore, if the judge, with his knowledge of the evidence and background of the offender, finds out the case, he can determine the inclusion of the provisions of the Islamic Penal Code on the accused. Considering the need to safeguard the social rights of individuals, measures must be taken to prevent the crime of such persons and, at the same time, to take the necessary measures to detect the type of insanity.

One of the important financial resources of municipalities for carrying out affairs is complications. The two types of complications that this institution receives are very common with natural or legal persons are the waste complications and the complications of modernization. Since it is one of the sources of income earned by the municipality, such an institution receives tolls from various institutions of the community by sending payment fees. One of the institutions that are subject to tolls and are addressed by the municipalities for receiving it, the service collections are under the supervision of the Ministry of Health and Medical Education. Obviously, non-payment of the fees will give rise to alerts and judicial follow-ups, which obviously means that these institutions will seek to provide the necessary funds to pay for such costs. Obviously, the acquisition of these effects has led the researchers to disregard this point. Of course, all laws that deal with the collection of complications from these collections have been subject to legal analysis and legal origins for taking tolls from healthcare facilities. The coverage of the Ministry of Health, Health and Medical Education is a legal evaluation. The existence of various rules on this issue has made it impossible to determine the mere liability of a statutory obligation to pay or non-payment of these institutions, which, of course, in this study all these materials are mutually exclusive and it is concluded that all the following entities The college of medical science universities are exempted from paying any fees.

Nowadays, organ transplant is an inevitable necessity for patients in need who other medical treatments don’t work for them. Nevertheless, it has become one of the major challenges of societies to find transplantable organs in order to bring patients in need back to society and their families. The statistics points out that in the year 2017, despite the issuance of the four million organ donation cards in the country, only 3% of the applicants in need succeeded to get an organ. One of the major obstacles in this regard is the lack of legislative recognition of organ donation cards and this causes the organ donation cards to not have appropriate effectiveness. By studying primary religious resources and Iranian regulations with documentary method, the present study aims to analyze the role of satisfaction of person injured with brain death and his parents in the organ donation law and the role of the organ donation card in order to develop organ donation. The law of organ donation recognized either the will of the patient or satisfaction of his (her) parents as legal permission of organ donation, whereas in contradiction with this approval of Iranian Islamic parliament, its bylaw has required satisfaction of the parents combined with the will. Filling the organ donation card is considered as a legal action which is adaptable with the will institution. The reasons given in this study indicate that the filling of the organ donation card can be considered as equivalent of the official will of the person and it is not necessary to obtain approval from his parents. The law is transparent, moreover, according to the religious thoughts the will of dead person is respectful and cannot be changed.

Stem cells are one of the most challenging areas of patent law as one of the important medical resources for the treatment of various diseases. The scope of this challenge relying on the legal approaches of countries depends on how to satisfy substantive requirments and moral considerations, especially in the field of embryonic stem cells. Accordingly, although such cells could be considered patentable subject matter on the basis of substantive requirements, they may not be commercially exploited as an invention on the basis of some considerations of public order and morals. An examination of the relevant case law in the European Union and the United States shows the differences in their approach. The greater emphasis of United States is on the compatibility of such inventions with the patentability requirements and the EU's tendency is more on their compliance with moral considerartions. With the advancement of technology and the achievement of different types of stem cells in ways other than embryo destruction such as somatic cell nuclear transfer technology, induced pluripotent stem cells and so on the legal issues surrounding the patentability of these cells have changed. In fact, because of accessibility to these cells without the destruction of the embryo and the processes that take place on them, like what happens in induce pluripotent stem cells, such inventions can no longer completely ignore because of its similarity to the natural state in human body or conflict with protecting human dignity. In this paper, the legal approaches to patenting human stem cells based on recent European and US jurisprudence have been reviewed and the present research method is analytical-comparative based on library studies. Finally concludes that despite the differing approaches, patenting these cells has been increasing, especially because of their important and numerous therapeutic applications and the related challenges have been adequately managed through judicial procedures.

After concluding TRIPs agreement, the sphere of negotiation in respect of protecting new kinds of intellectual property rights especially pharmaceutical inventions transferred to bilateral and regional arrangements. TRIPs agreement has some flexibility to attract all countries. Industrialized countries believed that multilateral agreements protections based especially in regard of pharmaceutical inventions are not fairly enough and because of this, they are searching new stage to negotiate and apply their views. This evolution occurred in pursuance of industrialized countries endeavors to protect their national’s intellectual property rights abroad. In recent years industrialized countries began to negotiate bilateral agreements with their trading partners. Some of these agreements are concluding in trade and investment field but also contain important provisions about intellectual property rights including pharmaceutical inventions, while others directly aim at intellectual property rights. Standards of these treaties prevail those of multilateral agreements such as TRIPs and because of this, these treaties are known as TRIPs-plus treaties. Industrialized countries in TRIPs-plus protection from pharmaceutical inventions focus on several points in their bilateral and regional negotiations such as identifying new types of intellectual property rights, taking TRIPs-plus standards in intellectual property protection and setting limits on existing flexibilities in TRIPs agreement. In this article we study the concept and scope of TRIPs-plus rules in the realm of pharmaceutical inventions. We will also show that standards of these types of treaties go further than those of multilateral intellectual property treaties such as TRIPs.