Compensation Liability of Self-Employed Doctors Arising from Malpractice and Fault of Organization In Türkiye

A) The Self-Employed Physician

The words "doctor" or "physician" (hekim/tabip) definedly describe individuals who diagnose and treat illnesses. However, to formulate a legal definition, pursuant to Article 1 of Law No. 1219, only holders of a medical diploma may be defined as physicians. Naturally, pursuant to Supplementary Article 4 and other relevant provisions of Law No. 3359, physicians who have completed their compulsory state service may practice their profession.

Physicians take preventive measures to protect individuals and society from health problems, diseases, and injuries by applying medical principles and methods within the framework of knowledge, skills, and attitudes acquired during medical and specialty training; perform diagnosis, treatment, and rehabilitation practices; and work to prevent potential complications. In the event of complications, they perform appropriate interventions and refer the patient when necessary (Regulation on Healthcare Professionals, Annex-1).

Self-employed physicians are physicians who practice their profession independently by registering with a professional chamber pursuant to Article 7 of the Turkish Medical Association Law No. 6023. Self-employed physicians may perform medical diagnoses and interventions in their private clinics (hususi muayenehane), as well as in private hospitals pursuant to Article 25 of the Private Hospitals Law No. 2219. The fundamental issue here is that the physician practices their profession independently with respect to the relevant medical intervention.

(For the Compensation Liability of Private Hospitals Arising from Malpractice and Fault of Organization, see: https://www.hukukihaber.net/ozel-hastanelerin-malpraktis-ve-organizasyon-kusurundan-dogan-tazminat-sorumlulugu-makale,6798.html)

The contract between self-employed physicians and their patients is a medical contract (hekimlik sözleşmesi). The essence of this contract rests upon an agency relationship (vekalet ilişkisi), and in principle, the patient-doctor contract constitutes an agency contract (vekalet sözleşmesi). According to Gökcan, the most suitable contract type for a medical contract is an agency contract. The vast majority of judicial decisions lean in this direction.

No formal requirements are stipulated for the formation of a medical contract. According to doctrine, a contractual relationship is established once the patient is examined a single time. Although the primary performances (asli edimler) in a medical contract take the form of treatment vs. payment obligations, obligations imposed mostly on the doctor—and relatively on the patient—pursuant to medical law legislation inevitably become an invisible part of the contract upon its formation.

B) The Concept of Medical Intervention

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.

C) Conditions for the Legality of Medical Intervention in Private Law

Although the situation differs in the context of criminal law, in an evaluation conducted outside the scope of criminal law, for a medical intervention to be lawful:

1. 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.

2. The patient must give informed consent regarding the medical intervention (a combination of decision disclosure, risk disclosure, and treatment disclosure must be present).

3. The medical intervention to be performed on the patient must be medically necessary according to the data of medical science (indication).

4. 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. 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," it will do so within its capacities; hence, a treatment significantly behind current medical standards may still possess grounds for legality.

D) Harm Resulting from Medical Application and Faulty Medical Practice (Concepts of Malpractice and Complication)

The legality of a medical intervention possessing all the above conditions becomes meaningful in the end if the treatment or medical application yields a positive outcome. In fact, in most cases where no harm occurs to the patient, how the treatment was performed or whether consent was given becomes irrelevant because the situation rarely reaches the judiciary. If the matter comes to light in such cases, the physician's disciplinary or criminal liability may arise.

The concept of malpractice, which translates to "medical practice error" and causes a chain reaction triggering a physician's compensation liability, disciplinary liability, and criminal liability, 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."

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 physician will not be held liable for damages. 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. Especially private hospitals that promise "better" treatment must take international medical developments into account. Thus, defining a complication as "the unavoidable result of an intervention compliant with the most advanced and current medical science" is more accurate.

A complication must not arise from a lack of knowledge or skill. The physician will not be held liable for unwanted results that emerge despite acting within the framework of normal risks and deviations accepted by medicine, provided 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 diagnosis and treatment applied in the post-complication period must conform to medical rules.

1) Harm Arising from Errors in Disclosure and Information (Aydınlatma ve Bilgilendirme)

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.

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.

It should be noted that the burden of proving that the patient was informed/enlightened rests upon the doctor and hospital.

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, and the doctor will experience major difficulties in proving otherwise.

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 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.

a) Diagnostic Disclosure Must Be Provided to the Patient

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.

b) The Patient Must Be Informed About Alternative Treatment Methods

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.

For instance, in a dispute reflected in judicial precedents, where it could not be claimed or proven that the doctor warned the patient regarding the risks of an intraocular lens surgically implanted, i.e., that informed consent was obtained, or that special authorization was granted by the patient specifically for implanting that lens, it was stated that the doctor/hospital was obligated to compensate the harm caused to the plaintiff patient by the lens regarding which the patient had no power of choice.

In another decision, 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.

c) The "Timing" Rule Must Be Observed in Disclosure

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. 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 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.

d) Disclosure Must Be Provided in a Manner the Patient Can Understand

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.

e) Post-Treatment Disclosure/Information Regarding Patient Obligations Must Be Provided

Breaching post-treatment care and follow-up obligations also constitutes a medical error (malpractice). Where complications arise due to negligence in post-treatment care and follow-up duties, the physician's liability is incurred.

The doctor's responsibility continues after the medical intervention. For example, the doctor is required to call the patient for follow-up examinations if necessary. The burden of proving whether the doctor called the patient for a follow-up examination rests on the doctor.

In a lawsuit filed against a doctor who persuaded a patient presenting with hemorrhoid complaints to undergo surgery in their private clinic through intense persuasion efforts and guarantees of recovery the next day—despite the patient's reluctance—and subsequently recommended that the patient continue working: the doctor was found at fault for failing to perform post-treatment disclosure and process management duties and failing to advise the patient to rest, despite the patient suffering severe health issues post-surgery.

f) Information Must Be Provided Regarding Potential Complications Resulting from Medical Intervention

Failure to provide disclosure regarding complications leads to a faulty medical intervention by the physician, in which case the physician will be held liable for material and moral damages resulting from complications.

In a dispute reflected in judicial precedents, because it could not be proven that the patient was informed regarding injector complications prior to an injection, it was ruled that moral damages had to be paid to the patient.

A failure of disclosure regarding drug side effects also constitutes physician fault. Medical history (anamnesis) must be taken to learn of allergies, existing illnesses, and related factors before prescribing drugs. In a case reflected in judicial precedents, skin rashes believed to be linked to penicillin developed in a patient, who subsequently endured long and difficult treatment processes. The Court of Cassation decision stated that whether an allergy to penicillin existed in the family ought to have been investigated, and even if no allergy existed, the patient had to be informed of such potential complications. Likewise, in another precedent, failing to notify a patient of a drug's side effects was deemed a gross fault of service under administrative law.

2) Harm Arising from Medical Interventions Not Performed in Accordance with the Requirements of Medical Science and Technology

"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)

If standards are complied with during medical interventions but the outcome remains unchanged, the doctor and hospital should not be held liable for the result. A physician who undertakes the treatment or surgery of a patient is not under an obligation to cure the patient one hundred percent. The physician is obligated to carry out treatment in accordance with medical standards. The physician is objectively responsible not only for knowledge acquired during 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 current requirements of medical science. Patients have the right to demand diagnosis, treatment, and care in accordance with requirements of modern medical knowledge and technology (PRR Art. 11).

Although an agent (vekil) is not liable for failing to achieve the result aimed at while fulfilling an agency duty, they are liable for damages arising from a lack of diligence in the efforts, transactions, actions, and conduct performed to achieve that result. Therefore, doctors standing in the position of agents must fulfill their duty of care by utilizing all means provided by science and technology.

We previously noted that patients must be informed regarding alternative and higher-quality lenses, prostheses, technologies, and other options. If higher-quality materials are available on the market, the physician must apply the least risky option during treatment; if a significant financial difference exists, the physician must inform the patient, granting the patient the right to select the higher-quality option by covering the financial difference.

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 diagnosis, treatment, and follow-up are qualified as consultations. If a deficiency in consultation leads to treatment that fails to meet medical standards and results in malpractice, both the hospital and responsible physicians will bear liability for resulting damages due to failure to ensure necessary collaboration among physicians.

3) Harm Arising from Absence of Indication / Misdiagnosis

Under 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 physician fault exists. However, a physician is held liable for damages arising from inexperience, negligence, failure to conduct research required by medical science, or reaching an incorrect conclusion due to fault when data was apparent.

Medical interventions where an indication is incorrectly determined—that is, interventions performed "without indication"—may trigger compensation liability for the physician and hospital. 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, the physician can be held liable for their unlawful act. In practice, situations are regrettably observed where patients diagnosed with HIV without necessary confirmatory tests committed suicide, or where patients misdiagnosed with cancer were later found not to have cancer.

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.

4) Complication Management and the Obligation to Combat Complications

"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, they will also be held liable for damages arising from 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 cases involving slight hesitation, the doctor is obligated to conduct investigations to eliminate this hesitation and take preventive measures in the meantime. When choosing among various treatment methods, the characteristics of the patient and the illness must be taken into account, conduct putting the patient at risk must be avoided, and the safest path must be preferred."

A doctor who failed to initiate treatment against an infection that had begun during follow-up checks was held liable for malpractice, and the hospital was held equally at fault with the doctor for failing to exercise due care in selecting its personnel.

5) Aesthetic Applications

Contracts entered into 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. It has been stated that such obligations do not constitute the performance of a service forming the subject of an agency contract. The reason for this is that, unlike elements in an agency contract, the objective pursued here is the mandatory attainment of a specific result.

If the work fails to possess qualities agreed upon in the contract, fails to conform to the purpose expected by the purchaser of medical services, or lacks one or more required characteristics, defective performance (ayıplı ifa) will occur. It must not be forgotten that aesthetic procedures are also medical interventions; thus, they must meet basic legality conditions outside of indication prescribed for medical interventions.

E) Liability of Self-Employed Physicians Arising from Fault of Organization

The medical equipment and competencies required for locations where medical interventions are performed are specified in their relevant legislation. First and foremost, private clinics/hospitals must possess the order prescribed by regulations. Beyond this order, as noted for the necessity of a lawful medical intervention, treatment conforming to requirements of medical science must be delivered. For this, relevant units, technical equipment, personnel, or pharmaceuticals must undoubtedly be suitable. Likewise, hygiene rules must be complied with, and necessary diligence must be exercised. A contrary situation will cause a defect in the doctor's organizational responsibility. For example, holding a doctor liable due to an organizational fault when a person contracts an infection due to non-compliance with hygiene rules is highly probable.

The doctor must select employed personnel with care. Materials used must be the safest, highest quality, and fully compliant with standards for the patient. For instance, if a material carries risk, it must not be re-used from one patient to another, tasks involving intervention on a patient must not be assigned to non-members of the medical profession, and medical devices must be properly maintained. However, it should be noted that within complications resulting from medical intervention, an element of risk belonging to a fully maintained, non-defective medical device is also recognized.

F) Legal Relationship Between Physician and Patient, and Standing (Husumet) in Compensation Lawsuits

We noted that a medical (agency) contract is established between physician and patient. The parties to this contract are generally the physician and the patient.

However, there is also the dimension of a "split hospital admission contract" (bölünmüş hastaneye kabul sözleşmesi), wherein the doctor rents—so to speak—an operating room from a hospital and performs the medical intervention there. Legal doctrine states that the physician may also enter into this contract with the hospital on behalf of the patient by exercising agency authority. In such contracts, no treatment-oriented contractual relationship exists between the patient and the private hospital. In these situations, liability for faulty medical practice primarily attaches to the self-employed physician. The hospital, meanwhile, is liable for services it provides (technical services, care, accommodation, etc.). However, if services provided by the hospital cause faulty medical practice, the patient may rely on breach of contract or tort provisions in their claim against the hospital, depending on whether a contractual relationship exists between them.

In a dispute reflected in judicial precedents, the high court held that where a physician applied an unlicensed medication to remove facial blemishes causing malpractice, and that physician was not employed by the hospital but merely used a hospital room for one night, the hospital could not be held liable for the physician's acts.

In emergency situations where no contract can be formed, the relationship between patient and doctor regarding treatment and related procedures emerges as a management of affairs without mandate (vekaletsiz iş görme). Here, too, the doctor must perform an intervention with the same degree of care as if a contract were present.

Conditions for Compensation Liability

"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)

As noted, a contractual relationship generally exists first between patient and doctor. In the relationship arising from a medical contract between a self-employed doctor and patient, the patient stands in the position of a consumer. The trigger for compensation will primarily be this breach of contract. However, because medical interventions frequently constitute direct torts and become lawful only through grounds for legality, the presence of a tort in the event of contractual breach is also highly probable in medical interventions.

Nevertheless, from a theoretical perspective, dividing conditions for compensation liability into contractual breach liability and tort liability will be more useful.

According to Consumer-Provider Relationship (Breach of Contract):

In compensation claims based on tort, the existence of harm is mandatory. For instance, if a patient was never informed regarding a surgery but recovered in the end, although disciplinary or criminal liability of the physician may arise, no compensation obligation from tort will accrue. However, in breaches of a medical contract possessing the nature of a consumer contract, physical harm does not necessarily have to materialize in the patient. For example, even if the patient recovers in the end, if a riskier surgery was performed when a riskless option was available, if lower quality prostheses were fitted than agreed upon, if a physical therapy session that could finish in ten sessions was spread over twenty sessions despite identical fees, or if a dental filling became non-functional after one week—that is, in cases where "a medical intervention different from the intervention that ought to be performed when medical standards are best applied" was conducted—we consider that the service becomes defective (ayıplı hizmet).

Under Article 13 of the Law on Consumer Protection (Law No. 6502), a defective service is one that fails to commence within the period specified in the contract or is contrary to the contract due to failing to possess characteristics agreed upon by the parties and that it ought objectively to possess. Services containing material, legal, or economic deficiencies that lack features declared by the service provider, featured on internet portals, or included in advertisements, or that reduce or eliminate its value regarding purpose of use or benefits reasonably expected by the consumer, are defective.

Optional rights available to consumers against defective service (Art. 15) can be exercised in defects arising from health services as far as circumstances permit.

In the event of a defective health service, the consumer may exercise one of the rights to demand re-performance of the service, free repair of the work resulting from the service, a discount on the fee in proportion to the defect, or rescission of the contract (sözleşmeden dönme). All costs arising from exercising optional rights must be borne by the service-providing physician. The consumer purchasing medical services may also claim material and moral damages pursuant to Turkish Code of Obligations (TBK) provisions for harm caused by malpractice or organizational fault alongside one of these optional rights.

According to Tort Provisions:

Article 49 of the TBK explains the essence of tort liability.

1) First, an unlawful or immoral medical intervention or act must exist in the event.

The judge will evaluate whether legality conditions explained in this article exist in medical interventions. However, before this legal dimension of the dispute is resolved, the factual dimension—how events unfolded—must also be resolved.

Those who will resolve the factual dimension—whether the doctor applied the least risky treatment, fought complications, or whether harm resulted from a complication—are experts in medicine. In legal terminology, these experts are judicial experts (bilirkişi). In such reports, evaluations as to whether the doctor was at fault or whether an unlawfulness occurred should not be made; rather, necessary facts must be presented to the judge so that the judge can evaluate legality.

Determining the factual dimension of a dispute is generally conducted through the expert witness mechanism via the Council of Forensic Medicine (Adli Tıp Kurumu) or a panel of expert academicians, or by parties applying for expert opinions (uzman görüşü). However, in certain cases, the high court deemed an evaluation by an expert unnecessary. As an example of such situations, we can cite the Court of Cassation's 1976 decision:

"... the dispute concerns harm arising from surgical forceps left inside the abdomen of a patient operated on for a liver cyst. There is no need to have the incident examined before an expert. Because an operator performing surgery must never allow such an incident to occur through non-professional care, let alone professional care. ..."

We wish to state that such situations continue to occur. For instance, according to news reported in the press in 2006, surgical forceps were left inside a patient's abdomen during surgery in Amasya, causing the patient's death several years later.

In certain decisions, the Court of Cassation deems reports received from the Council of Forensic Medicine insufficient. Expert reports should, if possible, be prepared by a committee of academicians, demonstrate whether negligence or error requiring liability exists according to medical rules and requirements, explain reasons, and be suitable for supervision by parties, the court, and the Court of Cassation.

In our view, it is beneficial for parties to consult expert opinions (uzman görüşü) to evaluate whether a medical intervention complied with law. For example, while even a doctor not specialized in the relevant field of medicine may not know whether the least risky method was selected, it is difficult for parties to object ideally to expert reports without an independent expert opinion.

2) Second, fault must exist in the person performing the medical intervention.

In determining fault, an average physician within the specialty field is taken as a baseline. As noted, a doctor cannot guarantee a treatment outcome. However, they are obligated to perform all procedures required by medical science and display diligent treatment and care. A physician is liable for even their slighest fault (en hafif kusur) and must fulfill medical requirements even if it is their first day in the profession. Otherwise, the physician will be deemed at fault.

Although establishing fault in private law attaches to intent and negligence—resting on subjective liability—there are strict liability scenarios, such as liability for acts of auxiliary persons (yardımcı kişinin fiilinden sorumluluk). On the basis of subjective liability, a doctor is held liable for even the slightest fault.

3) Finally, an adequate causal link (uygun illiyet bağı) must exist between the faulty/unlawful act and the resulting harm for tort liability to arise.

The prevailing view in Turkish legal doctrine and practice leans toward the theory of adequate causation—evaluating the suitability of the act to produce the result.

Headings of damages that a purchaser of medical services can claim in harm arising from malpractice or organizational fault are material and moral damages.

If death occurred as a result of malpractice or organizational fault, 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 from the doctor/auxiliary healthcare personnel causing harm.

Because the injured party or relatives cannot calculate exact material damages at the outset, they may also file their material damages lawsuit as an unquantified debt lawsuit (belirsiz alacak davası) by indicating a minimum amount.

If the injured party presents convincing evidence showing the merits of their claim and economic circumstances require it, the judge may order the tortfeasor to make provisional payments (geçici ödeme) upon request. Depending on the nature of harm, if the scope of bodily harm cannot be fully determined at the time of decision, the judge may reserve authority to modify the compensation judgment within two years starting from finalization of the judgment.

As noted, for the judge to evaluate whether malpractice exists, necessary information and disability levels in bodily harm must be determined by medical experts, followed by calculating material damages.

Furthermore, the injured party or relatives in death and similar cases may claim appropriate moral damages from the tortfeasor where conditions exist. Pain and suffering endured are taken into account in determining moral damages.

G) Competent Court (Görevli Mahkeme)

In damages arising from medical services possessing consumer transaction character, Consumer Arbitration Committees (Tüketici Hakem Heyetleri) and Consumer Courts (Tüketici Mahkemeleri) hold subject-matter jurisdiction. Lawsuits filed by consumers are exempt from court fees pursuant to Article 73/2 of the relevant law. This is undoubtedly an advantageous situation for patients/purchasers of medical interventions who suffer harm and stand as consumers.

We wish to state that if tort grounds are relied upon alongside breach of contract, the Consumer Court remains competent in the dispute. In lawsuits filed by persons deprived of financial support, the competent court is also the Consumer Court. The sole issue presenting specificity regarding jurisdiction is whether the patient stands as a consumer. Indeed, Article 83 of Law No. 6502 explicitly provides:

"General provisions apply in cases where no provision exists in this Law. The existence of provisions in other laws regarding transactions to which one of the parties is a consumer shall not prevent such transaction from being deemed a consumer transaction or prevent application of jurisdiction and competence provisions of this Law."

If no contract exists between parties in claims based on tort, general courts (genel mahkemeler—Civil Courts of First Instance) will hold jurisdiction.

H) Statute of Limitations (Zamanaşımı)

Unless a longer period is specified in laws or in the contract between parties, liability for defective service is subject to a two-year statute of limitations starting from performance of service, even if the defect appears later. However, if defect caused by the physician or hospital employee resulted from gross fault (ağır kusur) or was concealed through fraud (hile), the compensation claim is not subject to a statute of limitations. In our view, gross fault exists in situations such as fitting an intraocular lens known to be defective or treating an illness via a series of surgeries due to faulty applications when it could be cured in a single surgery. Likewise, where medical materials implanted during surgery are presented to consumers at high prices as European-sourced, but are later discovered to be low-quality products, compensation claims will not be subject to limitation because the defect was concealed.

If a compensation claim is brought based on tort, the limitation period under TBK Article 72 is two years starting from when the injured party learns of the harm and person liable for compensation, and in any event ten years from the date of the act. However, it should not be forgotten that if the judge concludes that the act constitutes a crime, the longer criminal statute of limitations (ceza zamanaşımı) will apply. We wish to note that most harm arising from health applications simultaneously constitutes the offense of reckless injury (taksirle yaralama).

However, if a compensation lawsuit is filed based on contract, because the contract contemplates an agency relationship, high court decisions exist holding that the statute of limitations is 5 years.

Likewise, under TBK Article 147, the statute of limitations is 5 years in aesthetic operations accepted as contracts for work (eser sözleşmesi).

Att. Alp Öztekin

Footnotes

[1] Hakan Hakeri, Medical Law (Tıp Hukuku), Seçkin, Ankara, 2018, p. 735.

[2] Hasan Tahsin Gökcan, Civil and Criminal Liability Arising from Medical Intervention (Tıbbi Müdahaleden Doğan Hukuki ve Cezai Sorumluluk), Seçkin, Ankara, 2017, p. 969.

[3] Hakeri, op. cit., p. 733; Gökcan, op. cit., p. 972.

[4] Court of Cassation (Yargıtay), 2nd Civil Chamber, Merits E. 2014/33.

[5] Ayça Çakal, Consent to Medical Intervention (Tıbbi Müdahaleye Rıza), Seçkin, Ankara, 2018, p. 23.

[6] 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, http://tbbdergisi.barobirlik.org.tr/m2004-53-43, Accessed: 12.06.2019.