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Article 12 of the UN Covenant on Economic, Social and Cultural Rights – The Right to Health:
"1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. ..."
Article 56 of the Constitution of the Republic of Türkiye – Health Services and Conservation of the Environment:
"... To ensure that everyone leads their lives in conditions of physical and mental health, and to secure cooperation by increasing efficiency and saving in human and material resources, the State shall plan and organize health institutions to serve from a single source. The State shall fulfill this duty by utilizing and supervising health and social institutions in the public and private sectors. ..."
Article 6 of the Patient Rights Regulation – Benefiting in Accordance with Justice and Equity:
"The patient has the right to benefit from health services, including activities aimed at promoting a healthy life and preventive health services, in accordance with their needs within the framework of the principles of justice and equity. This right includes the obligation of all individuals and institutions providing health services, as well as personnel involved in health services, to provide service in accordance with the principles of justice and equity."
In accordance with the relevant norm of the above-mentioned UN Covenant, human beings have the right to maintain their lives under the highest attainable standard of health, a matter generally realizable through the state’s preventive and curative health services.
Health practices are imposed upon the state as a public service and duty by both our Constitution and lower-level norms. Although our Constitution and the ECHR do not explicitly regulate access to health services as a direct fundamental human right, the right to health undoubtedly constitutes a dimension of the right to life. Citing the relevant decision of the Constitutional Court, the 10th Chamber of the Council of State also emphasized in its decision numbered 2011/6191 that health services are directly linked to the right to life.
A public service is not limited to services performed exclusively by the administration; non-profit activities carried out by private legal entities may also constitute public service. For example, the Red Crescent Society (Kızılay Derneği) is the prime example of this. Article 56 of the Constitution also contains a provision stating that the state may fulfill this duty by utilizing the private sector. The state’s licensing and supervision of private enterprise constitute an administrative public service, and the administration can be held liable for these supervisory and other obligations pursuant to the rules of administrative law. However, where health services are conducted by private legal entities for profit through licensing and similar means, a private law relationship exists between the patient and the private hospital or institution. Consequently, liability cannot be attributed to the administration for faulty activities arising from this relationship.
Apart from licensing and supervising private enterprise in the field of health, the essential duty of the state regarding the execution of health services is undoubtedly to conduct health services directly itself and to ensure that health is preserved.
To prevent the deterioration of public health, the state performs preventive health services in the first place by combating all negative conditions that the environment, buildings, foodstuffs, vehicles, or individuals might create regarding public health.
In the execution of health services, the state bears duties and organizational liability regarding the structure and operation of the entire health organization. The obligations regarding how health services are to be delivered are regulated in detail in Article 3 of the Fundamental Law on Health Services.
At the most fundamental level, there are health services offered by the state and other public law legal entities through public hospitals and other health institutions—more within the scope of individual benefit than general public benefit—which consist of medical interventions, diagnoses, and examinations performed for therapeutic and other purposes.
We would like to note that, although it may appear to contradict international legislation, pursuant to Article 65 of the Constitution, the state shall fulfill its constitutional duties in social and economic fields within the limits of its financial resources, taking into account priorities appropriate to the goals of these duties.
In this article, the administrative liability for compensation arising from the administration's fault of organization and malpractice will be explained generally through the example of state hospitals.
The state fulfills individual health services—namely medical interventions, diagnoses, and examinations conducted for therapeutic and other purposes among the health services mentioned above—generally through public servant physicians/health professionals via public hospitals.
Personnel who carry out their professional activities for a fee within public legal entities and are subject to the regime of public law are public servants. Public servants are divided into civil servants and other public personnel, with contracted personnel falling under the second category. The basis of this distinction lies in the fact that civil servants are subject to a statutory and regulatory status, whereas others are subject to a contractual status.
Public hospitals are hospitals established and operated by public legal entities for the purpose of providing health services as a public service without the aim of making a profit. Inpatient treatment institutions where health services are generally provided are divided into five classes and are explained and defined in Articles 4 and 5 of the Regulation on the Management of Inpatient Treatment Institutions.
The most crucial point to consider here is that state or public hospitals perform an administrative public service without aiming for profit and are integrated into the hierarchical structure of public legal entities. If a public legal entity—for instance, a municipality—establishes a joint-stock company to operate a hospital for profit under the provisions of the Turkish Commercial Code (TCC), that hospital is a private legal entity, i.e., a private hospital, just like other subsidiaries. However, if the municipality does not establish a joint-stock company and operates a public hospital within its own legal personality to provide a public service, this municipal hospital shall be deemed a public hospital.
The Court of Cassation defined medical intervention in one of its decisions as follows:
"Every intervention performed by applying the rules of medical science is a medical intervention."
According to a view in legal doctrine, medical intervention is any medical attempt performed by authorized persons to diagnose and treat physical or psychological illnesses—or non-disease physical or psychological defects—that threaten a person's life, bodily integrity, or health, or performed for disease prevention or family planning purposes.
In our view, the requirement that the person carrying out the intervention or procedure be a medically authorized individual must also be included in the definition. Thus, we can define medical intervention as: any medical practice and activity conducted within the framework of medical science by persons authorized by positive law.
In essence, the wrongfulness of an act—that is, whether it complies with the law or not—is uniform outside of criminal law. In criminal law, however, whether an act constitutes a violation of the legal values intended to be protected by the norm, or the function of informed consent in terms of medical interventions, should in our view be discussed separately.
In an evaluation to be conducted outside the scope of criminal law, for a medical intervention to be lawful:
The person performing the treatment must be an authorized person, i.e., a doctor who is not barred from practicing medicine or an authorized healthcare worker assisting a doctor.
The patient must give informed consent regarding the medical intervention (a combination of decision disclosure, risk disclosure, and treatment disclosure must be present).
The medical intervention to be performed on the patient must be medically necessary according to the data of medical science (indication).
The intervention provided to the patient must meet the standard of quality appropriate to the current data of medical science (compliance with medical standards).
Generally, it can be stated that if any one of these conditions is lacking, the medical intervention will be unlawful. However, pursuant to provisions enacted by law in accordance with international norms and the Constitution, there are grounds for legality for medical interventions performed against the consent of individuals, particularly for the protection of public health and public order. Likewise, although there is no medical necessity (indication) in circumcisions, purely cosmetic procedures, or plastic surgeries performed to protect a hidden witness, these are nevertheless lawful. Furthermore, if a rural physician performs a medical intervention with technologically outdated equipment, although the state is required to provide its citizens with the best conditions under the framework of the "right to health/health standard," it will do so within its financial capacities; hence, a treatment significantly behind current medical standards may still possess grounds for legality. Nevertheless, as noted above, the health service provided by the state must not fall below a certain standard.
In evaluating the legality of medical interventions within the scope of administrative health services comprising administrative acts and actions in the context of medical law, one must proceed according to the fundamental principles of administrative law. This necessitates conducting this evaluation of legality within the framework of "fault of service" (hizmet kusuru), which, in our opinion, does not present a particularly sound systematic framework for medical interventions.
The Council of State defines fault of service as an objective defect, dysfunction, or gap in the operation of a public service.
Although the financial liability of the administration under administrative law is formulated around the axis of fault liability vs. strict liability, the fault here is not a subjective, personal fault as understood in private law or criminal law. The administration, through its organizational structure as a whole, stands as the perpetrator of the act; the intentional or negligent conduct of real or legal entity officials who physically carry out the administrative transaction, action, or contract in connection with their duties holds no relevance for administrative liability. The administration's fault arises not from individual fault as a subjective evaluation, but from the service being defective from an objective viewpoint—which is referred to as "fault of service." The general rule in administrative law is to examine this objective fault in service under three subcategories: the service not operating at all, operating late, or operating poorly.
Fault of service is categorized as light, gross, or extraordinary; gross fault is described as a degree of fault that ought not to occur in a reasonable administrative activity.
In cases of malpractice and fault of organization, attempting to categorize when a service is deemed not to have operated at all, operated late, or operated poorly would, in our view, be an unhelpful grouping. Beyond this, establishing a precise rubric for when malpractice or an organizational fault constitutes a light, gross, or extraordinary fault of service is equally difficult. Legal doctrine also criticizes the lack of uniform jurisprudence regarding the severity of service fault.
The majority of Council of State decisions seek the presence of gross fault of service to establish administrative liability in invasive medical interventions—ranging from a simple injection to major surgical operations. The rationale behind this is the inherent risk carried by invasive medical interventions. Conversely, in non-invasive interventions (care, supervision, and auxiliary interventions that fall outside surgical operations) or, most importantly, faults occurring in the organization of health services, light fault of service is deemed sufficient for administrative liability.
It should be noted that in some older decisions of the Council of State—and particularly in decisions post-2015—rulings have been issued citing mere fault of service without referencing gross fault at all.
We must state that we do not agree with founding the requirement of gross fault of service on the risk of complications. Because fault of service is an objective defect in service, if a complication occurs despite everything, there will be no light fault of service present at all. For a medical service to be defective, one of the legality conditions mentioned above must be missing. If the physician and their team complied with all rules, managed complications, and applied the best methods, yet a complication occurred nonetheless, one cannot speak of even the slightest fault in service. Therefore, gross fault of service should not be sought for liability purposes.
Another point we disagree with regarding the requirement of gross fault of service is that deciding on the severity of an error in a medical procedure without a scientifically prepared report creates an exceedingly subjective perspective.
It must also be emphasized that case law remains complex. In certain cases where the severity of the error was obvious, the administration was held liable without referencing the issue of gross fault of service:
Where gauze was left inside a patient, the administration was held liable without referencing the severity of the fault of service.
Where tissue was mistakenly sampled from a kidney instead of the liver, the administration was held liable without referencing the severity of the fault of service.
Some decisions explicitly mentioning gross fault of service include:
The administration was held to have committed a gross fault of service for causing the patient's arm to break during treatment and causing permanent disability due to a failure to take necessary precautions.
Administering the wrong medication was held to constitute a gross fault of service.
The patient becoming blind as a result of a needle being injected into the wrong location during eye surgery was considered a gross fault of service.
Causing death by administering the wrong gas to a patient was deemed a gross fault of service.
The concept of malpractice, which translates to "medical practice error," is defined in Article 13 of the Turkish Medical Association Code of Medical Ethics as follows:
"A patient suffering harm due to ignorance, inexperience, or indifference signifies the 'bad practice of medicine.'"
Black's Law Dictionary defines malpractice, which generally refers to wrongful acts of medical doctors during their duties, as:
"A professional's failure to exercise that degree of skill and learning commonly applied under all circumstances by the average prudent and reputable member of the profession, resulting in injury, loss, or damage to the recipient of the service."
According to Hakeri, malpractice is:
"the situation where a patient suffers harm as a result of a healthcare worker's faulty intervention or failure to intervene, regardless of the reason."
In doctrine, damages arising from faults during the state's general execution of health services are also included under the umbrella concept of "administrative malpractice."
Another situation in which a patient suffers harm following a medical intervention is a complication. However, in this scenario, if the medical intervention is lawful, the administration will not be held liable for damages under the theory of fault of service; provided the conditions are met, it may be held strictly liable under the principle of balancing public burdens (fedakarlığın denkleştirilmesi ilkesi).
A complication is the expected or unavoidable outcome of a medical intervention performed properly and in accordance with medical science. However, this concept of "compliance with medical science" should not be relative. While it is more accurate to speak of a complication as the unavoidable result of an intervention compliant with the most advanced and current medical science in private enterprise, when defining complications regarding state health services, it is more appropriate to take the highest attainable standard within available resources as a baseline.
A complication must not arise from a lack of knowledge or skill. The physician/administration will not be held liable for unwanted results that emerge despite acting within the framework of normal risks and deviations accepted by medicine, provided the necessary care and diligence were shown. If a harmful outcome cannot be foreseen and prevented by a specialist physician—or cannot be prevented even if foreseen—this situation is accepted as a complication. However, for this to hold, there must be no deviation from the most advanced medical standards, professional rules of experience must be followed, and the diagnosis and treatment applied in the post-complication period must also conform to medical rules. It should be noted that an unforeseen complication will also sever the causal link between the act and the damage (result) in terms of liability.
Relevant Legislation:
Patient Rights Regulation (PRR) Art. 15: The patient shall be informed about other diagnostic and treatment options, the benefits and risks of these options, probable effects on the patient's health, major characteristics of medications to be used, lifestyle recommendations critical for health, and how to access medical assistance on the same matter when necessary.
PRR Art. 18: Information shall be provided as simply as possible, leaving no room for hesitation or doubt, in a manner understandable to the patient according to their social and cultural level. Information shall be provided in an appropriate environment while preserving patient privacy.
PRR Art. 28: Consent obtained unlawfully or immorally is void, and no intervention may be performed based on consent obtained in this manner.
TMA Code of Ethics Art. 26: The physician shall inform the patient regarding their health status, diagnosed condition, proposed treatment method type, success chance and duration, risks carried by the treatment method, usage and possible side effects of prescribed drugs, consequences if the patient refuses proposed treatment, and alternative treatment options and risks. Information provided must respect the patient's cultural, social, and psychological status. Information must be given in a manner understandable by the patient. Persons to be informed other than the patient are designated by the patient. Any health intervention can only be performed with the person's free and informed consent. Consent obtained through coercion, threat, incomplete disclosure, or deception is invalid.
Medical Deontology Regulation Art. 14/2: The physician and dentist shall comfort the patient by offering hope. Unless stating the diagnosis explicitly is likely to aggravate the disease by negatively affecting the patient's morale, measures required according to diagnosis must be clearly told. However, hiding a severe trajectory and outcome of the disease is appropriate.
Convention on Human Rights and Biomedicine: An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
The European Court of Human Rights (ECtHR) drew attention to the state's responsibility regarding informed consent in the cases of Codarcea v. Romania and Altuğ and Others v. Turkey.
In emergency medical interventions, where information has the potential to adversely affect treatment, where the patient requests not to be informed, or under exceptional circumstances where the patient already possesses the information, consent does not always need to be informed. Likewise, a patient's presumed consent may render treatment lawful under certain circumstances.
Although no formal requirement is stipulated for how disclosure should be conducted, in our view, performing it via audio or video recording "with the patient's consent" would be most appropriate. Although oral disclosure followed by a written consent form is mentioned in regulations, it is clear that informed consent forms containing abstract phrasing or standardized pre-printed consent forms clearly prepared without discussion will be invalid. However, the crux of the matter is that no matter how detailed and proper a written form is, it cannot be known whether the patient truly read and understood (became informed about) it before signing. In such a scenario, even if the patient was informed, if it later emerges in an extreme example that the patient was illiterate, the paper signed will clearly hold no value.
Because the ex officio investigation principle applies in administrative law, the court will investigate sua sponte whether proper disclosure was made.
Undoubtedly, the act causally linked to the damage is not the failure to disclose, but the medical intervention itself. When disclosure is omitted, the rationale behind holding the physician/administration liable for damages is the violation of the patient's bodily integrity or the defect of intent (irade fesadı) experienced when consenting to the contract. When a person blindly consents to a matter they do not know, their intent will most likely exist as defective; because medical law legislation requires consent to be that of an informed person, the intentional consent of a person not informed about a medical intervention is deemed directly invalid, subject to certain exceptions. Consequently, absent another ground for legality, invasive medical interventions performed without valid consent directly produce the outcome of intentional injury against consent.
For example, beyond informed consent, where a healthy tooth was extracted despite the patient's explicit warning, it was ruled a fault of service because there was no consent whatsoever for the medical intervention.
Unless it would cause immense emotional distress to the patient or the patient requested not to be informed, it is mandatory to inform the patient of their diagnostic result—whether they are ill and what conditions they have—explaining it in a language they can understand.
The patient will undoubtedly be informed about the planned treatment. However, this is insufficient. The patient must also be informed about alternative treatment methods. Disclosure regarding alternatives must be conducted broadly—both regarding materials used in the treatment process (such as lenses or prosthetics) and regarding alternative surgeries or non-surgical treatments. In our view, patients receiving services at state hospitals should be informed about higher quality, lower-complication treatment options or materials that the state cannot cover or does not stock, allowing the patient to procure them themselves at their own expense if necessary.
In a dispute reflected in judicial precedents, where no medical record demonstrated that the patient was informed/enlightened about less invasive alternative surgical options carrying lower complication risks, where the consent document contained no information to this effect, and where the patient was not adequately informed about the risks and consequences of surgery, it was ruled that consent was invalid.
As emphasized in legal academic theory, disclosure must not take place immediately prior to the intervention. Indeed, in such a scenario, the patient will have already conditioned themselves for the medical procedure; disclosure made at that moment will be insincere/superficial, and given the patient's psychological state under pressure, objecting to it will not be possible for them.
According to the European Charter of Patients' Rights, the patient must be informed at least 24 hours prior to a medical intervention so that they can make their own choice regarding their situation. Under Article 18 of the Patient Rights Regulation, outside of emergency situations, this information is provided "by allowing a reasonable duration" to the patient. In our view, outside of emergencies, a reasonable duration should be a minimum of five to six hours for any invasive treatment. For major surgeries, this timeframe may even be measured in days, as even an apparently simple procedure may carry severe complications.
In practice, however, patients arriving for examination are often taken into low-risk surgeries and operations immediately following examination by having standardized consent forms signed.
As outlined in the statutory framework, informing the patient under our health law legislation must be conducted in a language understandable to the patient, in an appropriate environment, and through means suited to the patient's cultural level.
For instance, if the patient is an individual living in a small Anatolian village with an average cultural background completely unfamiliar with medical science, the doctor must act accordingly. Especially where disclosure is conducted minutes before a medical intervention via consent forms signed as a formality, even if the patient reads the form—an unlikely event—it cannot be expected of the patient to read and comprehend pages full of technical medical information. This is precisely why consent given to medical interventions must be informed. Because the individual is in a state of medical ignorance, the purpose, potential outcomes, complications, and alternative treatments of the medical intervention should not merely be recited, but thoroughly explained and taught. If a patient approves content they have not learned or understood, this consent is deemed void under medical law.
Breaching post-treatment care and follow-up obligations also constitutes a medical error (malpractice). Where complications arise or worsen due to negligence in post-treatment care and follow-up duties, administrative liability is incurred.
The doctor's/administration's obligation continues after the medical intervention. Beyond immediately intervening in existing complications, precautions must be taken for potential ones; the patient must be called for follow-up checks if necessary, or informed/instructed regarding physical therapy, medication, and other relevant matters.
Failure to provide disclosure regarding complications leads to a fault of service, in which case the administration will be held liable for damages resulting from complications. In malpractice cases heard in civil courts, the doctor/hospital is held liable for all material and moral damages under such circumstances, which we consider legally correct. Because in this scenario, the patient's consent is legally non-existent under medical law, and the person suffers harm through an unlawful violation of their bodily integrity against their consent.
The Council of State has issued rulings classifying the failure to notify a patient of a drug's side effects—i.e., failure to provide complication disclosure—as a gross fault of service.
In another exemplary decision, where a patient at high risk for injection complications repeatedly stated they did not want a gluteal injection, yet a gluteal injection was administered resulting in disability, it was ruled that material and moral damages ought to be evaluated due to the absence of informed consent.
However, as reflected in certain Council of State decisions, if the patient was not informed about complications, yet a complication occurred following a correctly performed intervention, it has been held that this situation generates moral damages (manevi tazminat) for the patient on the grounds that the service failed to operate properly.
"Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards." (Convention on Human Rights and Biomedicine, Art. 4)
The Convention on Human Rights and Biomedicine has been ratified by our country, and pursuant to Article 90 of the Constitution, the norms of the Convention take precedence in cases of conflict with domestic legislation.
We consider that the standards referred to in the relevant norm of the Biomedicine Convention are international medical standards. Therefore, although Article 65 of the Constitution states that the state shall fulfill public services within the limits of its financial resources, this criterion must not fall below international medical standards pursuant to the relevant norm of the Biomedicine Convention. Otherwise, a fault of service may occur.
Standards must also not be compromised regarding equipment and personnel required by medical science. Failing to meet these standards constitutes a fault in the organization of health services.
If standards are complied with during medical interventions but the outcome remains unchanged, the administration should not be held liable for the result. In the essence of health services, there is no principle of curing the patient one hundred percent; the principal rule is to deliver treatment in the best possible manner. The physician is obligated to carry out the treatment in accordance with medical standards. The physician is objectively responsible not only for the knowledge acquired during their education, but also for the requirements of developing and renewing medical science. Undoubtedly, if a doctor practicing for thirty years remains fixed in the knowledge of thirty years ago and conducts treatments based on that knowledge, explicit errors will arise under current conditions. Likewise, the physician must take the patient's history (anamnesis) in accordance with standards, examine the patient, and intervene in compliance with medical science at every stage of diagnosis and treatment through tests and analyses. Hospitals, too, must ensure that both their technical equipment and personnel conform to the current requirements of medical science. Patients have the right to demand diagnosis, treatment, and care in accordance with the requirements of modern medical knowledge and technology (PRR Art. 11).
We previously noted that patients must be informed regarding alternative and higher-quality lenses, prostheses, technologies, and other options. This generally finds application beyond standard procedures. In fact, standard procedures established for social security and related purposes ought to be the least risky procedures created within financial resources.
For example, choosing a significantly riskier vaccine over a foreign equivalent with a much lower complication risk, resulting in death, was deemed a fault of service.
Although Article 24 of the Medical Deontology Regulation states that a consultation may also be held upon the patient's request, it is primarily the physician who should initiate this. The treating physician cannot be expected to be an expert in every branch, nor may the patient's issue be confined to a single area. Situations where the responsible physician exchanges views with other medical specialties when deemed necessary for the diagnosis, treatment, and follow-up of the patient are qualified as consultations. If a deficiency in consultation leads to treatment that fails to meet medical standards and results in malpractice, the administration will bear a fault of organization due to the failure to ensure necessary collaboration among physicians.
Under Article 17 of the Constitution—which provides that "Except in cases of medical necessity and under conditions specified by law, the physical integrity of the individual shall not be touched..."—as well as Article 13/3 of the Medical Deontology Regulation, Article 12 of the Patient Rights Regulation, and other relevant provisions, physicians cannot perform any medical intervention that reduces a patient's mental or physical resistance, poses a life-threatening risk, causes death, or violates physical integrity outside of medical necessity. Even then, patient consent is required barring statutory exceptions. As noted at the beginning of our article, circumcisions, cosmetic procedures, and similar interventions are lawful despite lacking medical necessity.
The concept of indication corresponds precisely to this medical necessity—that is, the patient's need for treatment. Determining what kind of medical necessity exists is undoubtedly possible through diagnosing the illness.
As in most professions, there is no requirement in medicine that a diagnosis be one hundred percent accurate. If a physician did what was required but could not reach the correct diagnosis, no fault of service exists. However, a fault of service will occur in damages arising from a physician's inexperience, negligence, failure to conduct research required by medical science, or reaching an incorrect conclusion due to fault when the data was apparent. Furthermore, if a diagnosis could not be made because necessary technical equipment was not provided despite available financial resources, the administration's liability will arise due to an organizational fault of service.
Medical interventions where an indication is incorrectly determined due to fault—that is, interventions performed "without indication"—clearly give rise to a fault of service. For instance, if a patient is diagnosed with cancer or another serious illness following a simple examination without performing required tests and undergoes surgery, and it is later understood upon conducting proper diagnostic tests that no such illness existed, a fault of service will explicitly be present.
We would like to note that because the patient's intent was defective due to misinformation, patient consent may also be invalid in cases of misdiagnosis.
"The primary duty of a physician and dentist is to show care and respect for human health, life, and personality. The physician and dentist are obligated to show utmost attention and care in examination and treatment, regardless of the patient's gender, race, nationality, religion, sect, moral views, character, personality, social status, position, or political opinions." (Medical Deontology Regulation Art. 2)
How complications are combated—complication management—is also a critical topic. If complications are of a type that can be eliminated through timely intervention, but the physician fails to prevent them and keep the situation under control, a fault of service occurs due to the failure to manage complications.
Although the regulation grants the physician freedom in choosing the treatment to apply, this does not alter the fact that they are obligated to choose the safest method. First and foremost, when choosing a treatment method, the attending physician must select the "most reliable" one. The most reliable method is the one carrying the lowest risk and the highest probability of recovery. The physician must select the least risky method among known medical techniques to prevent potential complications; if a complication occurs nonetheless, they must do everything possible to minimize harm.
In some Council of State decisions, even where a fault of service was present, moral damages were awarded while noting that causation was severed when a complication inherent to the treatment materialized.
As stated above, causation is severed only by an unexpected, unforeseen complication that has not entered medical literature. Otherwise, because the situation is scientifically established, the medical intervention is inherently capable of producing the complication. Thus, we believe causation clearly exists in such cases. If the medical intervention is unlawful—that is, if a fault of service is present—we consider it correct to seek the administration's material and moral liability.
Private law contracts for aesthetic procedures are contracts for work (eser sözleşmesi) under which obligations are undertaken with a guarantee of a specific result—in other words, where achieving a particular outcome is agreed upon.
In terms of administrative health services, however, aesthetic operations do not constitute a contract for work; they are administrative activities. For this reason, in cases of malpractice or organizational fault arising in this field, the administration's liability will be sought pursuant to the standard theory of fault of service, without making a distinction between aesthetic interventions and other medical procedures. For example, if all matters prescribed by legislation and medical science were complied with and complications were properly managed, but the aesthetic procedure did not yield the desired visual outcome, no liability will attach to the administration.
"... The administration's failure to provide adequate tools/equipment/devices, inadequate organizational structuring, or organizational deficiencies during a medical procedure that cause delays in treatment are also qualified as a type of error; administrative liability is invoked for damages arising from the non-performance or improper performance of care, supervision, and auxiliary obligations. In the concrete case, even if the physician or other healthcare personnel are not directly at fault, if the administration has an organizational deficiency, liability can be attributed to the health administration for failing to operate the health service properly. ..." (COUNCIL OF STATE 15TH CHAMBER, Merits E. 2017/61, Decision K. 2017/7694, Dated 21.12.2017)
First and foremost, it must be noted that for the administration's financial liability to arise from an organizational fault in health services, the fault of service does not need to be gross.
The medical equipment and competencies required for locations where medical interventions are performed are specified in their relevant legislation. As we noted regarding the necessity of a lawful medical intervention, treatment must conform to the requirements of medical science. For this, relevant units, technical equipment, personnel, and pharmaceuticals must meet standards set out in legislation and medical science. Likewise, hygiene rules must be complied with against infections, and necessary diligence must be exercised. Beyond medical intervention areas and equipment, the administration also bears organizational responsibility for assigning duties among hospital personnel in the most appropriate manner.
Beyond all this, regarding health services as a public service, the state must establish a legislative framework aligned with international standards and maintain necessary labor power, medical supplies inventory, and other systemic prerequisites so that activities operate in accordance with this legislation. A deficiency in any of these matters may give rise to an organization-based fault of service regarding the state's health services.
For example, an organizational fault was attributed to the administration where harm resulted from an examination conducted by a different physician instead of a general surgeon; where midwives were forced to deliver a baby due to the absence of a doctor; where an HIV diagnosis was announced without confirmatory testing, leading to suicide; and where patient files were not maintained or were lost. Attention must be drawn to another detail in these examples: in the HIV suicide case and the loss of patient files, the Council of State ruled that a gross fault of service was present.
In another example, burns caused to an infant because necessary temperature checks were not performed on a hot water bottle were deemed a fault of service.
In another decision, a death resulting from the failure to provide an extra bed and admission for an emergency patient was deemed a fault of service.
In another ruling, where a defect in an infant was not detected resulting in a disabled birth, moral damages were awarded despite the absence of causation.
In yet another decision, the Council of State held that the inability to perform a blood test in a health institution constituted a fault of service in and of itself.
Between private legal entities and in non-administrative activities of the administration, a contractual relationship exists, which in the health sector constitutes a consumer transaction or commercial relationship within the framework of an agency contract (vekalet sözleşmesi) or contract for work (eser sözleşmesi).
Between public hospitals and patients, no contractual relationship exists. Because administrative health service is an administrative act/action, a public service relationship exists between the parties. Therefore, in malpractice or organizational faults that arise, evaluations are conducted within the framework of fault of service, and full remedy actions (tam yargı davası) can be filed in administrative courts.
Under Articles 40, 125, and 129 of the Constitution and Article 13 of Law No. 657, standing in damages caused by public servants due to their authority and duties is directed against the administration; that is, lawsuits are filed against the public legal entity in administrative jurisdiction. Standing must be directed to the highest administrative authority, such as the Ministry of Health or a university rectory. That said, pursuant to Article 15 of the Administrative Jurisdiction Procedure Law (IYUK), even if no defendant is specified in administrative court, sua sponte correction of standing (re'sen hasım düzeltme) is possible.
Beyond this, a lawsuit may be filed up to the maximum policy coverage directly against the public servant physician's insurer in commercial courts. The article titled "Right to Direct Action" in the relevant communique and primarily Article 1478 of the Turkish Commercial Code (TCC) provide the statutory basis for this.
Where administrative strict liability applies, it is clear that the same claim cannot be demanded from the insurance company. Because the administration does not share joint and several liability (müteselsil sorumluluk) with the physician, statutory limitation/preclusive periods will not be interrupted against the administration. Other than the insurance company, there is no option to apply directly to the physician.
A public servant's fault of duty is a fault arising during or from activities performed by reason of duty execution; in such cases, as mentioned above, the entity from whom damages are claimed is the public legal entity. In acts that are related to duty but carry criminal character, acts committed with intent to cause harm, or grossly negligent acts, a public servant's personal fault exists; if this personal fault can be severed entirely from the duty, the public servant alone will be held liable.
"If any relationship can be established between the harm suffered by individuals and the duty performed by the public personnel causing the harm, a situation related to duty exists. Such conduct, defined in doctrine as 'fault of duty,' emerges as personal faults of public personnel that cannot be separated from the service; this situation finds expression in the phrase 'damages suffered by individuals regarding duties subject to public law' in Article 13 of Law No. 657." (Jurisdictional Disputes Court, Law Division, Merits E. 1997/16, Decision K. 1997/15)
Where a public servant's personal fault is unrelated to and completely severed from their duty, standing is directed not against the administration, but directly against the relevant real person in the competent civil court of general jurisdiction.
For example, in situations such as causing death through misdiagnosis or leaving surgical gauze inside a patient during surgery, no personal fault severable from duty can be found. However, if an insult is uttered during duty, because such conduct is unrelated to duty, it is evaluated as a purely personal fault.
To offer an interesting example, a doctor's refusal to treat an intoxicated patient and failure to arrange an ambulance, leading to the patient's death, was not evaluated as a fault severable from duty.
This last example demonstrates how broadly the connection of fault to duty is interpreted. To give another extreme example, the situation of a patient unable to undergo surgery for failing to pay an illicit fee ("knife money" / bıçak parası) will not be deemed a fault severable from duty, even though it explicitly constitutes the crime of extortion (irtikap).
Finally, we wish to note a ruling holding that a physician on annual leave was personally liable due to personal fault for damages arising from a surgery performed during that leave period. Therefore, when evaluating whether personal fault exists in a given case, whether the public servant was authorized and on duty at the transaction date must be investigated in every lawsuit.
Apart from this, pursuant to Articles 63, 64, and related provisions of the Inpatient Treatment Institutions Regulation and other relevant legislation, independent private physicians may perform medical interventions in public hospitals. In such cases, a contractual relationship exists between the independent physician and the patient, and damages arising from the physician's fault are directed directly at the physician. However, faults in hospital organization and auxiliary personnel are evaluated as the administration's fault of service.
In this latter case, a situation arises in practice that is not particularly sound, as damages caused jointly by multiple actors will be claimed separately in different competent courts.
A similar outcome may emerge in other cases where tortfeasors cause damage through joint causation. Situations where damage occurs following faulty surgeries performed separately in a private hospital and a state hospital are examples of this.
The primary issue here is how fault is apportioned. In such a scenario, unless the factual dimension of the matter is established by a criminal court judgment, civil and administrative court rulings will hold no binding effect on one another, making it possible for the matter to escalate into a conflict of judgments (hüküm uyuşmazlığı). Conflict of judgments is regulated in Articles 24 et seq. of Law No. 2247. Accordingly, a conflict of judgments is recognized where final decisions regarding the same subject and cause, involving at least one identical party, make the execution of a right impossible due to contradiction between rulings. In such cases, an application may be submitted to the Jurisdictional Disputes Court (Uyuşmazlık Mahkemesi) for a judgment on the merits. According to the Constitutional Court, an individual application cannot be filed before exhausting this remedy provided to resolve conflicts of judgments (Erol Güler Decision).
"A person who has suffered unwarranted harm resulting from an intervention has a right to fair compensation according to the conditions and procedures prescribed by law." (Convention on Human Rights and Biomedicine, Art. 24)
We noted that the administration's compensation liability arising from health service errors is evaluated within the framework of fault of service, and damages can be claimed from the administration via full remedy actions. In full remedy actions, the dispute has both a factual and a legal dimension. Experts evaluate the factual dimension of whether real events—namely medical interventions—were faulty under medical science. Experts are also partially needed to identify faults in the organization of health services. Reports may be prepared by panels formed from relevant university departments. Following the determination of facts against medical science, the judge evaluates whether service fault or strict liability exists, resolving the legal dimension of the dispute.
"... In such lawsuits, the court will determine both the factual aspect of the event—that is, the transactions and actions giving rise to harm—and the legal consequences that may flow therefrom." (Council of State 10th Chamber, 15.05.2013, E: 2009/6118, K: 2013/4501)
For administrative compensation liability, the administration must first possess a fault of service, the plaintiff must suffer harm, and a causal link must exist between the harm and the fault in service.
In full remedy actions, both material and moral damages can be claimed. Regarding material damages, full remedy actions do not differ significantly from standard tort damages, aside from actuarial calculations. If death occurred, the deceased's relatives may claim funeral expenses, treatment expenses if death was not immediate, losses arising from reduced or lost earning capacity, and loss of financial support (destekten yoksun kalma).
If bodily harm occurred short of death, the injured party may claim treatment expenses incurred to recover, loss of earnings due to the tortious act, losses from reduced or lost working capacity, and losses arising from impairment of economic future as material compensation.
To award moral damages (manevi tazminat) in full remedy actions, a violation of personal rights is not required as in private law. In these lawsuits, the distress and anxiety suffered by individuals due to receiving inadequate service because the administration failed to deliver its public service properly and completely are deemed sufficient to establish moral harm and award moral damages. Similar to the deterrence rule in Court of Cassation jurisprudence, the Council of State holds that the amount of moral damages must reflect the severity of the administration's fault.
Actuarial calculations in full remedy actions contain certain differences from calculations in civil courts:
In full remedy actions, it is ruled that there is no legal possibility to meet claims for material damages regarding unbilled, prospective treatment and recovery expenses.
Nursing care compensation (bakıcı tazminat) is ordered to be paid as an annual annuity, subject to proving the plaintiff remains alive.
Rulings prescribe applying the TRH table rather than the PMF table in calculating remaining life expectancy.
Additionally, legal doctrine states that in damages caused by the administration, no factor other than the injured party's own fault may serve as grounds for reducing compensation. The Council of State has issued decisions holding that where the administration was 2/8 at fault, the entire damage had to be covered by the administration. The fact that the administration will recourse against its official in proportion to fault creates, in our view, strict administrative liability here, and consequently a collective responsibility of tax-paying citizens.
We noted that absent a public servant's personal fault severable from duty, a fault of service exists, making the administrative court the competent court (görevli mahkeme).
Territorial jurisdiction (yetki) in administrative law concerns public order and is evaluated sua sponte under Article 32 of IYUK. Under IYUK Art. 36/1-b, the court of the place where the service was performed or the action was committed holds jurisdiction in such cases.
We noted that fault of service represents an objective defect in service—non-operation, delayed operation, or poor operation—ultimately based on statutory legality conditions. If no such defect exists, fault of service does not arise. Furthermore, a fault in service may exist, yet no causal link may exist between the damage and that fault.
In such cases, if administrative liability can still be invoked, it is termed strict liability (kusursuz sorumluluk).
Because holding the administration liable solely under fault of service and where causation exists was deemed equitable, strict liability emerged. Certain damages related to the administration's sphere of activity that it was obligated to prevent but failed to do so are compensated without seeking service fault or causation, pursuant to principles such as the social risk principle or the principle of balancing public burdens (fedakarlığın denkleştirilmesi ilkesi).
When the administration is held liable for damage without causation under social risk or balancing public burdens, no official exists against whom recourse can be taken; thus, the financial burden falls upon the treasury and partially upon taxpayers. This reveals that one dimension of the issue touches upon the collective responsibility of taxpayers.
The Council of State rightfully holds that strict liability principles cannot be applied to medical interventions containing inherent risks.
According to Demir, strict liability may be applied not to all risky interventions, but to less invasive interventions such as blood drawing.
Regarding organizational difficulties, administrative strict liability can be invoked. For example, where a heating unit malfunctioned during surgery and burned a patient, the administration was held strictly liable for damages.
According to Gökcan, even when inherent risks of health services materialize, administrative strict liability should apply under the principle of balancing public burdens, for which a dedicated fund could be established.
Under IYUK Article 12, individuals may directly file full remedy actions. Under IYUK Article 13, the injured party must apply to the relevant administration within one year from learning of the administrative act causing harm, and in any event within five years from the act's date, requesting fulfillment of their rights. This date of learning is the date when it is learned that damage stemmed from a fault of service—that is, when the administrative nature of the act causing damage was discovered—not the execution date of the administrative act. If these requests are rejected partially or fully, a lawsuit may be filed within the statutory limitation period starting from the day following notification of the decision, or from the date when the 60-day response period expires without an answer. Under IYUK Article 7, the period for filing a lawsuit in administrative courts is 60 days. If an application is made to a non-competent judicial venue, prior application to the administration is not required.
Under IYUK Article 16/4, in malpractice cases where determining damage at the outset is often impossible, the claimed amount may be increased once without being subject to the one-year and five-year administrative application periods or other procedural rules.
[1] Simge Demir, Liability of Public Servant Physicians Arising from Medical Intervention (Kamu Görevlisi Hekimlerin Tıbbi Müdahaleden Kaynaklanan Sorumluluğu), Seçkin, Ankara, 2018, p. 24.
[2] Serkan Çınarlı, Legal Liability of the Administration Arising from the Provision of Health Services (İdarenin Sağlık Hizmetinin Sunumundan Kaynaklanan Hukuki Sorumluluğu), Orion, Ankara, 2013, p. 66.
[3] The performance of a public service does not always indicate the administrative nature of that service, and since such a service is not an administrative action, it falls outside the domain of administrative law.
[4] Çınarlı, op. cit., p. 91.
[5] Çınarlı, op. cit., pp. 70, 71; Hasan Tahsin Gökcan, Civil and Criminal Liability Arising from Medical Intervention (Tıbbi Müdahaleden Doğan Hukuki ve Cezai Sorumluluk), Seçkin, Ankara, 2017, p. 1110.
[6] Kemal Gözler & Gürsel Kaplan, Introduction to Administrative Law (İdare Hukukuna Giriş), Ekin, Bursa, 2014, p. 262.
[7] Gözler & Kaplan, op. cit., pp. 264, 265.
[8] Gökcan, op. cit., p. 1115.
[9] Court of Cassation (Yargıtay), 2nd Civil Chamber, Merits E. 2014/33.
[10] Ayça Çakal, Consent to Medical Intervention (Tıbbi Müdahaleye Rıza), Seçkin, Ankara, 2018, p. 23.
[11] Council of State (Danıştay), 15th Chamber, Merits E. 2016/8632, Decision K. 2017/6996; Council of State, 10th Chamber, Decision K. 2008/676.
[12] Fault of service occurs independently of the act of the public agent who commits the act constituting the fault; Gökcan, op. cit., p. 1122.
[13] The objectively poor, delayed, or non-performance of service gives rise to a fault of service; Ramazan Çağlayan, Administrative Procedure Law (İdari Yargılama Hukuku), Seçkin, Ankara, 2018, pp. 623, 624.
[14] Gökcan, op. cit., p. 1130.
[15] Betül Çatak Irız, Liability of the Administration for Damages Arising from Health Services (Sağlık Hizmetlerinden Kaynaklanan Zararlardan Dolayı İdarenin Sorumluluğu), Adalet, Ankara, 2011, pp. 55–56.
[16] Council of State Grand Council for Administrative Appeals (İDDK), Merits E. 2004/721, Decision K. 2007/2030.
[17] Irız, op. cit., pp. 60, 61.
[18] Council of State, 10th Chamber, Merits E. 2005/3719; Council of State, 15th Chamber, Merits E. 2013/3865.
[19] Council of State, 10th Chamber, Merits E. 1997/3565.
[20] Council of State, 10th Chamber, Merits E. 2008/11112.
[21] Council of State, 10th Chamber, Merits E. 1994/2110.
[22] Council of State, 10th Chamber, Merits E. 1996/2121, Decision K. 1997/5476; Çınarlı, op. cit., p. 189.
[23] Council of State, 10th Chamber, Merits E. 1998/190, Decision K. 1999/6198; Çınarlı, op. cit., p. 189.
[24] Council of State, 10th Chamber, Merits E. 1994/3258.
[25] Black’s Law Dictionary, 6th edition, St. Paul, Minnesota, 1997, p. 959, as cited in: Ersoy Yüksel, "Civil and Criminal Consequences of Medical Error" ("Tıbbi Hatanın Hukuki ve Cezai Sonuçları"), TBB Dergisi, Issue 53, 2004, pp. 161–191, p. 1,
[26] Hakan Hakeri, Medical Law (Tıp Hukuku), Seçkin, Ankara, 2018, p. 220.
[27] Çınarlı, op. cit., pp. 229, 230, 231.
[28] Council of State, 15th Chamber, Decision K. 2015/1398.
[29] Court of Cassation, 3rd Civil Chamber, Merits E. 2013/16671.
[30] Council of State, 10th Chamber, Merits E. 2007/6322.
[31] Court of Cassation, 12th Criminal Chamber, Merits E. 2014/7841.
[32] Hakeri, op. cit., pp. 292, 293.
[33] İdris Taşcan & Suat Çalışkan, Medical Malpractice and Physician Crimes (Tıbbi Uygulama Hataları ve Hekim Suçları), Yeditepe, İstanbul, 2018, p. 239.
[34] Council of State Grand Council for Administrative Appeals (İDDK), Merits E. 2002/716, as cited in: Gökcan, op. cit., p. 238.
[35] Council of State, 15th Chamber, Merits E. 2014/2194.
[36] Council of State, 15th Chamber, Merits E. 2018/5009; Council of State, 15th Chamber, Merits E. 2016/7990.
[37] Irız, op. cit., p. 53.
[38] The same issues apply to the liability of a physician under a private law contract: Court of Cassation, 13th Civil Chamber, Decision K. 2008/10750, as cited in: Hakeri, op. cit., p. 759.
[39] Gökcan, op. cit., pp. 198, 199.
[40] Council of State, 10th Chamber, Merits E. 1995/7086, Decision K. 1996/7534.
[41] Sunay Akyıldız, Health Law Guide (Sağlık Hukuku Rehberi), Seçkin, Ankara, 2016, p. 516.
[42] Court of Cassation, 13th Civil Chamber, Merits E. 2013/30822.
[43] Gökçe Şahin Candaş, Legal Liability of Private Hospitals Under Total Hospital Admission Contracts (Tam Hastaneye Kabul Sözleşmesi Kapsamında Özel Hastanelerin Hukuki Sorumluluğu), Onikilevha, İstanbul, 2019, p. 37.
[44] Council of State, 15th Chamber, Merits E. 2013/3865, Decision K. 2014/1691.
[45] Hakeri, op. cit., p. 736.
[46] Çınarlı, op. cit., p. 136.
[47] Council of State, 10th Chamber, Merits E. 2001/323, Decision K. 2003/703; Çınarlı, op. cit., p. 190.
[48] Council of State, 10th Chamber, Merits E. 2019/1190, Decision K. 2019/3420.
[49] Council of State, 10th Chamber, Merits E. 2005/8407.
[50] Council of State, 10th Chamber, Merits E. 2007/3301.
[51] Council of State, 10th Chamber, Merits E. 1982/2613.
[52] Council of State, 15th Chamber, Merits E. 2013/3865.
[53] Council of State, 15th Chamber, Merits E. 2013/9511.
[54] Council of State, 15th Chamber, Merits E. 2014/7136.
[55] Gökcan, op. cit., p. 1119.
[56] Aykur Cemil Aykın & Serkan Çınarlı, Legal Liability of Healthcare Personnel (Sağlık Personelinin Hukuki Sorumluluğu), Seçkin, Ankara, 2016, p. 620.
[57] Gökcan, op. cit., p. 1150; Demir, op. cit., p. 188; Çınarlı, op. cit., p. 299.
[58] Hakeri, op. cit., p. 757; Demir, op. cit., p. 131.
[59] Gökcan, op. cit., p. 1124.
[60] Joint Chambers of the Court of Cassation (İBK), Decision 1978/7; Gökcan, op. cit., pp. 1124, 1125; Çağlayan, op. cit., pp. 633, 634.
[61] Jurisdictional Disputes Court (Uyuşmazlık Mahkemesi), Law Division, Merits E. 2016/119, Decision K. 2016/163.
[62] Jurisdictional Disputes Court, Law Division, Merits E. 2015/450, Decision K. 2015/487; Court of Cassation General Assembly of Civil Chambers (HGK), Merits E. 2013/4-579, Decision K. 2014/155.
[63] Court of Cassation General Assembly of Civil Chambers (HGK), Merits E. 2013/4-1533, Decision K. 2015/1099.
[64] Council of State, 15th Chamber, Merits E. 2013/4111, Decision K. 2016/2803.
[65] Gökcan, op. cit., pp. 1134, 1135.
[66] Irız, op. cit., pp. 75, 76.
[67] Okan Taşdelen, "Evaluation of Conflicting Judicial Decisions in the Context of the Right to a Fair Trial" ("Çelişkili Yargı Kararlarının Adil Yargılanma Hakkı Bağlamında Değerlendirilmesi"), Journal of the Jurisdictional Disputes Court (Uyuşmazlık Mahkemesi Dergisi), 2016, Issue 7, pp. 987–1024,
[68] Council of State, 15th Chamber, Merits E. 2015/1946, Decision K. 2017/6254; Council of State, 15th Chamber, Merits E. 2016/8632, Decision K. 2017/6996.
[69] Council of State, 15th Chamber, Merits E. 2016/8632.
[70] Council of State, 15th Chamber, Merits E. 2014/84, Decision K. 2018/5698.
[71] Council of State, 10th Chamber, Merits E. 2001/323, Decision K. 2003/703.
[72] Council of State, 15th Chamber, Merits E. 2015/2562, Decision K. 2015/9159.
[73] Council of State, 15th Chamber, Merits E. 2015/5202, Decision K. 2017/1615.
[74] Council of State, 15th Chamber, Merits E. 2015/5202, Decision K. 2017/1615.
[75] Council of State, 10th Chamber, Merits E. 2006/4777, Decision K. 2009/7341; Çınarlı, op. cit., p. 168.
[76] Council of State, 10th Chamber, Merits E. 1996/2383, Decision K. 1997/4163.
[77] Council of State, 10th Chamber, Merits E. 1997/6600, Decision K. 1999/7409; Gökcan, op. cit., p. 1397.
[78] Demir, op. cit., p. 168.
[79] Council of State, 10th Chamber, Decision K. 2007/2720; Gökcan, op. cit., p. 1141.
[80] Gökcan, op. cit., p. 1143.
[81] Council of State, 15th Chamber, Merits E. 2016/4982, Decision K. 2017/1471.
