نوع مقاله : مقاله علمی پژوهشی
نویسندگان
1 استادیار دانشکده حقوق و علوم سیاسی دانشگاه تهران، تهران، ایران
2 استادیار دانشکده رفاه، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
In the case being examined, the plaintiffs are a couple whose first child was born with a genetic disease and some doctors forbade them from having a second pregnancy. Because of this advice, the said couple consult two other doctors. These doctors considered the risk of the second child having a genetic disease to be low and therefore judge the ban on further pregnancy to be unfounded. Trusting the latter advice, the mentioned couple attempt to have another child. Following the pregnancy, the aforementioned doctors, after examining the relevant tests, declare the fetus to be healthy and disease-free. However, unfortunately, following the birth of the second child, it becomes clear that, just like his sibling, is also sick. As a result, the parents are forced to bear the heavy costs of maintaining the sick child and the suffering having such an offspring entail. Following these events, the said couple initiate a lawsuit for compensation of material and moral damages. Relying on the opinion of experts, the trial judge determines an amount based on blood money to compensate for material and moral damages, which ruling is also confirmed by the appeals court.
In this article, an attempt is made to examine the basis of the civil liability of defendants, the elements of their civil liability, and finally, the way to compensate damages. The researches of this study showed that a doctor who is unable to carry out his mission correctly within the limits of human knowledge and technical facilities, will be responsible to the people who have referred to him to determine the path of their destiny. The doctor's responsibility in this assumption can be imagined based on the rule of pride. He made other/others proud of the health of the fetus, as a result, if his statement is proven to be false, he must be responsible for the damages caused by the birth of the sick child. Undoubtedly, the birth of such a child will result in material (maintenance and possibly treatment) and spiritual (discomfort and mental suffering) losses for his parents. As a result, although the current judicial procedure tends to use the dowry as a basis for compensating these losses, however, it seems that relying on the dowry is worth considering, especially that the dowry itself is based on the assumption The damage has been established and it is doubtful whether it corresponds to the actual amount of physical damage, let alone whether it is a basis for compensation for material and spiritual losses. For this reason, it is suggested to the judicial procedure, in such cases, the necessary expenses for the maintenance and treatment of children such as a sick child are calculated and the cause of the loss is condemned to pay these expenses continuously (and not once). In order to compensate for the moral loss, it seems that the judge should consider the most suitable method for compensating the moral loss according to the circumstances of the case.
کلیدواژهها [English]
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