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Article 1 of Private Hospitals Law No. 2219 defines a private hospital:
"Healthcare homes opened or to be opened, other than official state hospitals and special administration or municipal hospitals, to treat hospitalized patients, or to nourish under sanitary conditions individuals who have recently recovered from illness until they regain their former strength, and to provide maternity assistance, shall be deemed 'private hospitals.'"
Furthermore, provisions of the relevant law and regulation govern the rules to which private hospitals are subject.
It should not be forgotten that foundation university hospitals (vakıf üniversitesi hastaneleri) do not possess the status of private hospitals; lawsuits brought against these institutions are heard in administrative courts (Court of Cassation General Assembly of Civil Chambers (YHGK), Decision K. 2015/1339).
Private hospitals may be operated under general hospital or specialized hospital status according to their service branches. Although they execute a service targeting public interest, such as treatment services, private hospitals must undoubtedly aim to make a profit. However, pursuant to Article 32 of Law No. 2219, private hospitals are under an obligation to treat emergency patients.
A hospital operator must act like a prudent merchant (basiretli bir tacir) and will be held liable for acts contrary thereto. It is noted that private hospitals possess a higher duty of care than other hospitals due to their position, both regarding employed personnel and equipment used.
Indeed, sentences in a judicial ruling stating:
"... It is clear from the scope of the file that H. Y., the deceased spouse of the plaintiffs, was a retired public servant. It is understood that they preferred the private hospital out of a motive to avoid risking the health of his spouse, and of the mother and sibling of the other plaintiffs, and to ensure better and more diligent care, despite the financial burden it would entail. Failing to be worthy of this trust is also hurtful to patient relatives ..."
clearly demonstrate the heightened duty of care of private hospitals.
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 another view, 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 be included in the definition. Thus, medical intervention is: any medical practice and activity conducted within the framework of medical science by persons authorized by positive law.
Although the situation differs in criminal law, in private 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 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 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.
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.
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, 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.
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—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 medical standards, professional rules of experience must be followed, and diagnosis and treatment applied in the post-complication period must conform to medical rules.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Indication is a necessity that must be present outside of cosmetic interventions, sterilizations, circumcisions, and similar procedures. Medical 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.
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.
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 (13th Civil Chamber Merits E. 2005/3645).
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 prescribed for medical interventions.
The medical equipment and competencies required for locations where medical interventions are performed are specified in their relevant legislation (Regulation on the Management of Inpatient Treatment Institutions, Private Hospitals Law, etc.). First and foremost, 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, the hospital must comply with hygiene rules and exercise necessary diligence. A contrary situation will cause a defect in the hospital's organizational responsibility. For example, holding a hospital liable under organizational responsibility when a person contracts an infection in a hospital due to non-compliance with hygiene rules is highly probable.
A private hospital operator must select employed doctors with care and act like a prudent merchant (basiretli bir tacir). Materials used in surgery must be the safest, highest quality, and fully compliant with standards for the patient. For example, in a ruling, the hospital was held liable because gauze used during surgery was not standard-compliant due to the radiopaque substance separating from the gauze. Hospitals must also continuously check that medical/technical devices in their possession are operational. 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.
It must also be noted that hospitals bear an obligation to protect the patient not only against external dangers, but also against themselves. Against the possibility that individuals suffering from severe illnesses may display inclinations to harm themselves, hospitals are obligated to take necessary precautions in rooms and other areas to prevent such dangers.
For example, in an incident where a patient seized the opportunity while empty plates were being taken to the kitchen by a caregiver, entered an unoccupied room, and committed suicide using an unused television antenna cable found in the room: the defendant hospital operator acted contrary to mandatory legal rules binding it by failing to prevent the patient from acquiring the television antenna cable that should not have been present at the scene, and neglected its duty to ensure patient life safety prescribed in Article 37 of the Patient Rights Regulation. Consequently, it was ruled that the hospital had to compensate the harm caused.
Organizational responsibilities are generally fulfilled on behalf of the hospital operator by the responsible manager (mesul müdür). Statutory provisions regulate the responsible manager's obligations in detail on this matter (e.g., Private Hospitals Regulation Art. 18). The patient/purchaser of medical services may proceed against the hospital's liability and the responsible manager's liability separately or jointly under TBK Article 116 for harm arising from faults originating from the responsible manager's organizational duties.
A consumer-service provider relationship exists between private hospitals and their customers purchasing medical services, pursuant to provisions of Consumer Protection Law No. 6502.
Generally, a contractual legal relationship exists between private hospitals and patients/purchasers of medical services. However, in emergency situations where no contract can be formed, the relationship between patient and hospital regarding treatment and related procedures emerges as a management of affairs without mandate (vekaletsiz iş görme).
In the private law relationship between a private hospital and patient/purchaser of medical services, while the hospital's organizational responsibility remains constant, responsibilities regarding treatment between the hospital and the physician performing the treatment/procedure sometimes overlap and sometimes diverge. Distinctions on this point stem from the nature of the contract between the purchaser of medical services and the hospital.
The contract between a private hospital and purchaser of medical services is termed a "hospital admission contract" (hastaneye kabul sözleşmesi), which resembles an agency contract but possesses a mixed nature.
In a total hospital admission contract (tam hastaneye kabul sözleşmesi), a consideration exists between the purchaser of medical services and the hospital encompassing diagnosis, treatment, and food/beverage, hospitalization, and care/supervision during treatment—in short, a service obligation similar to hotel accommodation services. No contractual relationship exists between the purchaser of medical services and auxiliary personnel or physicians on duty during diagnosis and treatment. An "auxiliary person" (yardımcı kişi) relationship exists between these individuals and the hospital under TBK Article 116. In such a scenario, the purchaser of medical services may exercise legal rights against the hospital, as the other party to the contract, for harm arising from the service. However, due to torts committed by physicians, caregivers, nurses, or other healthcare workers, the liability of these individuals may also be invoked. Thus, joint and several liability (müteselsil sorumluluk) for damages arising from malpractice emerges between the private hospital and the physician/healthcare personnel participating in diagnosis and treatment. If the debtor private hospital pays the debt, it may subsequently recourse against the performing assistant who caused the harm.
In a total hospital admission contract with an attached medical contract (hekimlik sözleşmesi ekli tam hastaneye kabul sözleşmesi), the purchaser of medical services contracts with both the physician and the hospital. While the hospital's organizational responsibility remains constant here, because the purchaser of medical services also signs a contract with the physician, they may apply to both the physician and the hospital under both contractual and tort provisions regarding harm arising from treatment and diagnosis. However, the physician cannot be held liable for faults of auxiliary personnel who are hospital employees. In such cases—for instance, where harm is caused to a patient while drawing blood—the hospital, not the physician, will be liable.
In practice, rulings exist stating that a hospital is strictly liable in the capacity of an employer (adam çalıştıran sıfatıyla kusursuz sorumlu) for a physician's error in the relationship between private hospital and patient (e.g., 13th Civil Chamber Decision K. 1996/6163).
(13th Civil Chamber Merits E. 2006/6143, Decision K. 2006/11224):
"... The relationship between the hospital and plaintiffs is an agency relationship, and defendant hospital is liable under strict liability pursuant to Article 55 of the Code of Obligations in its capacity as employer for damages caused by doctors working at the hospital, unless it presents exculpatory proof. ..."
(Court of Cassation General Assembly of Civil Chambers HGK Merits E. 2004/13-291, Decision K. 2004/370):
"... It is clear that the hospital belonging to the other defendant company shares joint and several liability alongside B. Y. in its capacity as employer and operator. Indeed, a private hospital operator, in addition to acting like a prudent merchant primarily due to its merchant status, must show necessary loyalty and care so that the patient and, in special circumstances, relatives do not suffer harm, because the service it performs is a public health service closely concerning the right to life ..."
In another ruling, it was held that the hospital, in its capacity as employer and operator, shared joint and several liability alongside the doctor who served as surgery team leader for harm caused by failing to notice and repair a damaged artery in time during surgery.
Another contractual relationship that may emerge between a purchaser of medical services/patient and a private hospital is formed via a split hospital admission contract (bölünmüş hastaneye kabul sözleşmesi). This situation arises especially where independently practicing doctors or state hospital doctors perform medical interventions on their own patients by utilizing operating rooms and other facilities of a private hospital. The patient signs a medical/agency contract with the physician for diagnosis, treatment, and subsequent processes. The hospital undertakes to provide technical services, care, and hotel-like accommodation services. Naturally, in this contract type, the hospital bears only organizational responsibility, and liability arising from treatment and diagnosis cannot be attributed to the hospital. However, under the liability for performing assistants or employers, the hospital bears liability for faults of nurses, caregivers, and other healthcare workers assisting in treatment. Likewise, in an emergency, personnel working at the hospital may need to intervene in the event; because such a scenario will be accepted as an organizational deficiency, hospital liability will accrue. In other malpractice situations under this contract type, the physician alone is liable.
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.
For all types, no formal requirements are stipulated in legislation for forming a hospital admission contract. Furthermore, in such contracts, complete freedom of contract exists, barring the obligation to treat emergency patients and certain limitations in consumer and other legislation. Just as a patient may select any hospital they wish, hospitals are free to treat or decline to treat a patient.
In practice, purchasers of medical services/patients sign pre-prepared standard forms. At times, non-liability agreements regarding malpractice are even added to these standard forms. It must be noted that the invalidity of provisions such as non-liability agreements in contracts clearly prepared without discussion with the service purchaser can always be claimed and proven. If the relationship between doctor and private hospital is understood as liability for acts of performing assistants, although a debtor may enter into a non-liability agreement with the counterparty regarding acts of performing assistants, this situation may constitute an unfair general transaction condition under consumer legislation and the Code of Obligations, rendering non-liability agreements invalid under TBK Article 116/3. Likewise, under TBK Article 115, non-liability agreements regarding gross fault of the debtor are invalid (e.g., a severe organizational fault caused by the hospital), as are unfair terms in consumer contracts under Article 5 of the Consumer Protection Law.
In an emergency, if no possibility exists to enter into even an oral contract and a medical intervention must be performed on the patient, the relationship here will be a management of affairs without mandate (vekaletsiz iş görme). Here, too, the private hospital must perform an intervention with the same degree of care as if a contract were present. Otherwise, the hospital's liability can be invoked.
If the relationship between hospital and employee is accepted under debtor liability for acts of performing assistants, the hospital is strictly liable. Furthermore, unlike general employer liability, the hospital is not permitted to present exculpatory proof here. However, the act of the physician or auxiliary employee serving as a performing assistant must constitute an unlawful act. For example, where a patient is negligently dropped down stairs while being transported in a wheelchair, the hospital will be held liable alongside the employee committing the act for faults of auxiliary personnel.
To provide an example from a ruling stating that a doctor working in a private hospital is liable to a patient under agency provisions for breaching a duty of care: in an incident where a patient underwent three infections following surgery performed for male organ dysfunction, where the clinic possessed no inpatient ward, where surgery was performed without anesthesia and diagnostic specialists present, and where the patient was sent home from the clinic post-surgery without any observation or follow-up, the patient filed a lawsuit against the doctor alone. The high court reversed the first-instance decision that had dismissed the case for lack of standing, reasoning:
"... Defendant is a doctor working at a hospital belonging to a non-party company. A parallel exists between academic doctrine and established Court of Cassation practice regarding the resolution of disputes between private hospitals and doctors employed by them and patients according to legal provisions governing agency contracts. ... In the concrete case, a principal-agent relationship exists between plaintiff and defendant, and because claims in the lawsuit rest on the allegation that agents acted contrary to their duty of care in executing agency duties, agency provisions must be applied to the dispute, and naturally the dispute must be evaluated within this framework. Therefore, while the court should have proceeded to the merits of the case, collected party evidence, and issued an appropriate decision, dismissing the case on procedural grounds with the reasoning that standing could not be directed against defendant doctor due to erroneous evaluation is contrary to procedure and law, requiring reversal."
It is not possible to establish an exhaustive list applicable to all circumstances regarding treatment, care, and other obligations of a private hospital operator. Even if not explicitly agreed in contract, taking all measures dictated by the principle of good faith (dürüstlük ilkesi) according to requirements of the situation is mandatory.
Determining fault and malpractice 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 cases 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.
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.
We noted that joint and several liability generally exists between a private healthcare institution and a physician working there due to malpractice. 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, certain situations where no harm materializes may enable the patient to exercise optional consumer rights based on defective service. For example, even if fees are identical, spreading a physical therapy session that could finish in ten sessions over twenty sessions, or a dental filling becoming 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. Likewise, in choosing a C-section over natural birth without necessity, or treating an illness surgically when medication would suffice, we consider that consumers may exercise optional rights alongside reserved rights to material/moral damages. When selecting among various treatment methods, characteristics of patient and illness must be considered, conduct putting the patient at risk must be avoided, and the safest path preferred (13th Civil Chamber Merits E. 2015/11729).
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 against the private hospital operator. All costs arising from exercising optional rights must be borne by the service-providing hospital. The consumer purchasing medical services may also claim material and moral damages pursuant to TBK provisions for harm caused by malpractice or organizational fault alongside one of these optional rights.
We noted that doctors and auxiliary healthcare personnel who are private hospital employees share tort liability alongside the hospital for harm arising from medical interventions under TBK Article 49, even if no contract exists between them and the patient.
First, an unlawful or immoral medical intervention or act must exist in the event. Legality conditions for treatment or non-treatment medical interventions were stated above.
Second, fault must exist in the person performing the medical intervention. An average physician is taken as a baseline in determining fault. 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 slightest fault and must fulfill medical requirements even if it is their first day in the profession. Otherwise, the physician will be deemed at fault.
Finally, an adequate causal link must exist between the faulty/unlawful act and the resulting harm for tort liability to arise.
Headings of damages that a purchaser of medical services can claim in harm arising from malpractice or organizational fault are material and moral damages.
Because the injured party cannot calculate exact material damages arising from bodily harm 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 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 private hospital operator and doctor/auxiliary healthcare personnel causing harm.
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.
It should be noted that whether malpractice exists must first be determined by a medical expert, 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.
In damages arising from medical services provided in private hospitals, 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.
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 Far East 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
[1] Hasan Tahsin Gökcan, Civil and Criminal Liability Arising from Medical Intervention (Tıbbi Müdahaleden Doğan Hukuki ve Cezai Sorumluluk), Seçkin, Ankara, 2017, p. 1005.
[2] Hakan Hakeri, Medical Law (Tıp Hukuku), Seçkin, Ankara, 2018, pp. 839, 840.
[3] Court of Cassation General Assembly of Civil Chambers (HGK), Merits E. 2004/13-291, as cited in: Gökcan, op. cit., p. 313.
[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,
[7] Hakeri, op. cit., p. 220.
[8] Council of State (Danıştay), 15th Chamber, Decision K. 2015/1398.
[9] "Although defendants argued that they provided explanatory and informative details to the plaintiff in this direction, no information or document confirming their defense was found in the file. The burden of proof on this point falls upon defendants. Such being the case, defendants are liable for resulting damages. Therefore, the court should have had compensation calculated and issued a decision accordingly. Failure to observe this aspect is contrary to procedure and law, requiring reversal." (Court of Cassation, 13th Civil Chamber, Merits E. 2007/12837, Decision K. 2007/13884, Dated 20.11.2007).
[10] Court of Cassation, 13th Civil Chamber, Merits E. 2006/2942, Decision K. 2007/6736.
[11] Court of Cassation, 12th Criminal Chamber, Merits E. 2014/7841.
[12] Hakeri, op. cit., pp. 292, 293.
[13] Court of Cassation, 13th Civil Chamber, Decision K. 2013/27584, as cited in: Hakeri, op. cit., p. 298.
[14] Court of Cassation, 13th Civil Chamber, Merits E. 2015/6125.
[15] Court of Cassation, 13th Civil Chamber, Decision K. 2018/7615.
[16] Court of Cassation, 13th Civil Chamber, Merits E. 2015/11729.
[17] Court of Cassation, 13th Civil Chamber, Merits E. 2008/15195, as cited in: Gökcan, op. cit., p. 237.
[18] Council of State Grand Council for Administrative Appeals (İDDGK), Merits E. 2002/716, as cited in: Gökcan, op. cit., p. 238.
[19] Court of Cassation, 13th Civil Chamber, Decision K. 2008/10750, as cited in: Hakeri, op. cit., p. 759.
[20] Gökcan, op. cit., pp. 198, 199.
[21] Court of Cassation, 13th Civil Chamber, Decision K. 2015/8358.
[22]
[23]
[24] Sunay Akyıldız, Health Law Guide (Sağlık Hukuku Rehberi), Seçkin, Ankara, 2016, p. 516.
[25] Akyıldız, op. cit., p. 517.
[26] Court of Cassation, 13th Civil Chamber, Decision K. 1993/2741.
[27] Court of Cassation, 13th Civil Chamber, Merits E. 2011/7697, as cited in: Hakeri, op. cit., p. 828.
[28] Court of Cassation, 13th Civil Chamber, Merits E. 2012/7386, as cited in: Gökcan, op. cit., p. 323.
[29] Court of Cassation General Assembly of Civil Chambers (HGK), Decision K. 2009/452.
[30] Gökcan, op. cit., p. 1047.
[31] Gökcan, op. cit., p. 1022.
[32] Gökcan, op. cit., p. 1022.
[33] Court of Cassation General Assembly of Civil Chambers (HGK), Merits E. 2004/13-291, as cited in: Hakeri, op. cit., p. 839.
[34] Court of Cassation, 13th Civil Chamber, Decision K. 2006/5549, as cited in: Gökcan, op. cit., p. 1023.
[35] Gökcan, op. cit., p. 1033.
[36] Gökcan, op. cit., pp. 1036, 1037.
[37] Court of Cassation, 13th Civil Chamber, Decision K. 2018/3765.
[38] Court of Cassation, 4th Civil Chamber, 11.12.1976, 4260/1393, as cited in: Gökcan, op. cit., p. 1057.
[39]
[40] Court of Cassation, 13th Civil Chamber, Decision K. 2018/7411.
[41] See also Akyıldız, op. cit., p. 524.
[42] Court of Cassation, 3rd Civil Chamber, Merits E. 2010/186, Decision K. 2010/5764 (Regarding application of a 5-year limitation period on grounds that defendant doctors in agent positions breached duty of care during treatment).
