2025, Vol. 5, Issue 2, Part A

This research analyzes the legal framework for determining the liability of physicians and medical institutions. It highlights the difficulty of proving medical error in light of modern scientific developments. The study distinguishes between two main types of errors to define the burden of proof: Ordinary Error: This is a non-technical mistake that falls outside professional medical practice, such as leaving a surgical tool inside a patient’s body. A judge can recognize this type of error without needing an expert. In this case, where it is far removed from technical and professional principles and outside the scope of the profession and its standards, it is subject to the general rules of obligation. Professional Error: This occurs when the physician performs their duty but violates the rules and principles required by the medical profession—an error related to the technical principles of medicine. This type of error is difficult for a judge to identify on their own, thus requiring the assistance of specialized experts. In such cases, the burden of proof on the patient is more difficult to meet. Medical liability can be negated if the physician proves a break in the causal relationship between their action and the harm by demonstrating the presence of an "external cause." The external cause typically takes three main forms: Force Majeure or Sudden Accident: An unforeseen and unavoidable event beyond the control of the debtor (i.e., the physician or hospital). Fault of the Victim (Patient):

If the patient caused or contributed to the harm—such as by neglecting to follow medical instructions—this can break the causal link and relieve the physician of liability. Fault of a Third Party: When the harm results from the action of another person not under the supervision or authority of the physician or medical institution. The research concludes that distinguishing between types of medical errors is essential for accurately determining the burden of proof. It recommends that Iraqi lawmakers enact specialized legislation on medical liability and adhere to the principle of damage assessment at the time of judgment. This would help protect patients' rights and clarify compensation rules more effectively.