The Civil Liability from Medical Negligence of Doctors Treating Complications of Coronavirus in the English Law / A Comparative Study with the Iraqi Civil Law

Abstract

The Author has tried hard in this study to make a logic comparison between two different legal systems. That is to say the English common law, considered the leading system among other Anglo-American ones. And the Iraqi civil law highly affected and influenced by both the Islamic jurisprudence and the Egyptian civil law. It is worth-bearing in mind that the English common law includes many types of torts and the civil liability arising from them, including the tort of negligence in general. The general principles applied to which, can also be applied to medical negligence in particular. After the wide-spread dissemination of the coronavirus the British national health services organ (NHS) has given the cases of the doctor's treating the complications of this pandemic an ultimate importance. And the English courts based the civil liability arising from the medical negligence on three basic elements: the duty of care taken by doctors, the breach of this duty, and the damage suffered by patients. As well as the causation or the causal link between the tort of negligence and the damage or injury. Whereas the Iraqi civil law No. (40) of 1951 deals with the problems related to the civil liability arising from medical negligence of treating patients from coronavirus pandemic, by resorting to the general rules of the civil liability from the illegal act, which is based upon three basic elements: the trespass or transgression committed by the wrongdoer, the damage suffered by the victim and the causal link between them. As opposite to the Egyptian civil law No. (131) of 1948, which considers the first element of this liability as the fault rather than the trespass or transgression. After discussing the attitudes adopted by both the English and Iraqi laws, the author recommends that the Iraqi legislator should adopt the attitude taken by the English law, and let the Act of God deny both the fault element and the causation element of the civil liability arising from medical negligence. And also let the plea volenti non fit injuria deny both the fault element and the causation element of the civil liability of the defendant doctor arising from medical negligence.