Critique of the Decision Made by Fars Appellate Court Concerning the Civil Liability of a Physician

Hosseini, Fatemeh Sadat

doi:10.22034/analysis.2026.2080180.1163

Critique of the Decision Made by Fars Appellate Court Concerning the Civil Liability of a Physician

Document Type : Original Article

Author

Fatemeh Sadat Hosseini

Assistant Professor, Department of Law, Non-Profit Welfare School, Tehran, Iran

10.22034/analysis.2026.2080180.1163

Abstract

Using documentary, descriptive and analytical methods, this study examines a case that addresses the issue of damages arising out of medical malpractice in a case of abortion and failure to perform a permitted therapeutic abortion. The main purpose of this study is to analyze the legitimacy of a claim for material and moral damages incurred by parents and a child born as a result of the physician's malpractice in failure to diagnose and perform and abort a fetus suffering from thalassemia major; a fetus that could have been legally aborted, and to evaluate the validity of the judicial approach to compensating for these damages.Analyzing carefully the opinions of the Medical Malpractice Commissions, the text of the decision made by the court of first instance and the appellate court shows that the damages incurred are not corporal, but civil damages arising out of deprivation of legal opportunity for therapeutic abortion. In this regard, blood money and arsh are ineffective and inappropriate as means of compensating corporal damages, since the disease and malformation are not caused by the physician's actions but by genetic factors. However, the customary causal relationship between the physician's fault and the damages incurred is clearly established. Relying incorrectly upon the blood money, the trial court made the compensation in a fixed price, without distinguishing between the parents and the child, and without considering the continuous nature of the damages. By emphasizing the jurisdiction of the civil court and acceptance of the damages, the appellate court has taken a valuable step forward, but has refrained to provide a practical solution for continuous compensation of damages. The conclusion of this study is that the legal acceptance of therapeutic abortion creates the legal legitimacy to claim damages if the doctor is at fault in performing it and the compensation for these damages should not be based on blood money, but should be determined through periodic and continuous compensation, taking into account the living conditions of the child and family and the opinions of experts.

Keywords

abortion therapy

the right not be alive

physician's responsibility

conventional causal relationship

blood money

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