عقد الاستشفـاء الطبي – دراسة مقارنة –

Medical Hospitalization Contract -A Comparative Study-

Abstract

There is no doubt that the role of private hospitals is becoming more important day after day due to what they contribute to developing the health situation, due to the huge capabilities they possess and advanced material and human technologies, which encourages individuals to come to these hospitals and receive the latest means of treatment and comfort, so the relationship between the patient and the hospital begins. Private contract under a contract, which is a medical hospitalization contract concluded by the patient or his representative and the private hospital, and its role is medical work on the human body, under which the hospital is obligated to provide care or achieve an objective according to the nature of the medical work after obtaining free and informed consent, in exchange for or without compensation.
The medical hospitalization contract is characterized by its specificity that distinguishes it from other contracts, and its importance appears primarily because of that specificity because it responds to the human body, and the inviolability and infallibility of this body necessitates obtaining the free consent and informed consent of the patient at any stage and before any new therapeutic intervention, and this makes it Of the actions that are subject to it within the narrowest limits, and despite its specificity and importance, it did not receive the attention of the Iraqi legislator in regulating its provisions within special medical legislation, or even explaining the law, which made the medical hospitalization contract a contract surrounded by an aura of ambiguity and ambiguity due to the lack of knowledge. Its special legal nature or its return to a contract of the so-called contracts, as this matter was reflected from the lack of organization to the failure to specify the obligations that fall on its parties, and the extent of each obligation separately, whether it is an obligation to exercise care or a commitment to achieve a result, and perhaps this is one of the most important reasons that called us To research this topic, as it became clear to us that the hospital contract is an indefinite contract and one of the complex contracts and has its own nature that distinguishes it from the rest of the contracts, and its specificity stems from the fact that it responds to the human body and is dominated by the human nature, and is based on trust between its unequal parties. The cognitive disparity between the two parties burdened the affected patient, who has the capabilities and limited knowledge of medical sciences, to prove the error committed by the hospital or one of its employees. The relevant legal texts and general rules were not sufficient to ease the burden on the patient and obtain full compensation to compensate for the harm he suffered. Based on all of the above, the study focused on clarifying the nature of the medical hospitalization contract and detailing the elements of its conclusion, especially the patient’s satisfaction, which is not similar to the satisfaction element in the rest of the contracts, where there is initial satisfaction and exceptional satisfaction, and the obligations imposed on both parties, and the responsibility of the private hospital also arises in the assumptions. Which comes from him by mistake or from the people affiliated with him and causes harm to the patient. However, the basis of this liability and the burden of proof differs according to the nature of the medical work. We hope that this study will be a gateway to the beginning of legislation of a special law for medical liability, through which special provisions for the medical hospitalization contract will be regulated.