نوع مقاله : مقاله پژوهشی
نویسنده
گروه فقه و حقوق اسلامی؛ دانشکده علوم انسانی؛ دانشگاه شهرکرد؛ شهرکرد
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Abstract:
Establishing a causal relationship in medical malpractice claims has always faced profound challenges, particularly in cases where determining the precise role of medical error in the occurrence of harm is difficult or impossible. Employing a descriptive-analytical method and a comparative study of European legal systems, this article examines the “lost chance doctrine” as a solution to address this gap. The findings reveal that this doctrine recognizes the “reduction in the chance of recovery or survival” as compensable “damage,” and the experience of certain legal systems indicates a shift away from the traditional concept of causation. However, numerous theoretical and practical challenges—including ambiguity in defining the existence of a “chance,” the subjectivity of compensation criteria, and the risk of increasing frivolous claims—limit its efficacy. A comparative analysis demonstrates that Germanic legal systems (e.g., Germany and Austria), citing the non-recognition of “opportunity” as an independent right, have adopted a more cautious approach. Consequently, despite the advantages of the lost chance doctrine in mitigating injustices arising from the “all-or-nothing” rule of traditional civil liability, its integration with other theories is essential to achieve greater justice.
کلیدواژهها [English]
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