The burden of proof of medical liability and its denial in Iraqi Law

Abstract

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