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In practice, crimes resulting from a physician's/doctor's medical intervention are generally crimes of damage (zarar suçları). Acts such as failure to report a crime, breach of confidentiality of personal data, or taking illicit fees ("knife money" / bıçak parası) remain a minority compared to those causing physical harm. This harm is termed malpractice in medical literature.
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.'"
Another situation in which a patient suffers harm following a medical intervention is where the patient is exposed to complications. However, in this scenario, the physician is not held liable for the harm. A complication is the expected or unavoidable outcome of a medical intervention performed properly and in accordance with medical science. According to one view, medical interventions fall within the boundaries of the concept of "permitted risk" (izin verilen risk). For this reason, a physician will be held liable solely for their faulty conduct. It has been stated that:
"The physician is liable not for bad luck, but for wrongfulness." [1]
If one examines the essence of the concept of malpractice, it will be observed that instances where a physician intentionally performs an erroneous medical intervention resulting in harm to the patient are excluded from the scope of the concept. We can state that from the perspective of criminal law, harm resulting from acts performed with a physician's direct intent (doğrudan kast) cannot be qualified as a medical practice error. Undoubtedly, we can employ the word "injury" (yaralama) for such a situation.
The concept of malpractice also delineates the boundaries of a physician's criminal liability arising from medical intervention. In our view, an average physician can cause harm to a patient only through ignorance, inexperience, or indifference. These concepts lead us along a spectrum ranging from simple negligence (basit taksir) to eventual intent (olası kast).
Naturally, physicians can also intentionally kill or harm their patients through various medical interventions. The place of a physician acting in this manner—who deliberately leaves a person on the operating table instead of drawing a gun and shooting them—is not an issue specifically related to the practice of medicine. For this reason, we have chosen to exclude cases where a physician acts with direct intent from the scope of this study.
Through malpractice, a physician may cause harm to a patient's physical integrity, as well as moral harm (manevi zarar). If a patient suffers no physical harm but suffers purely moral/mental harm, the physician's criminal liability arising from malpractice can still be invoked. Especially in interventions by psychiatrists whose duty is to heal the patient mentally, a medical practice error may constitute the negligent form of the offense of reckless injury (taksirle yaralama). Namely, the legal value intended to be protected by the crime of injury is not merely the victim's physical integrity; mental integrity (ruhsal tamlık) is also protected under this offense.
As rightly noted in legal doctrine, it is mandatory to evaluate the regulation of the crime of injury in the penal code together with Article 17 of the Constitution. Because no one can be subjected to treatment incompatible with human dignity, if a physician violates a patient's moral/mental integrity at any stage of any medical intervention—including psychiatric treatments—the act will fall within the statutory definition (tipiklik) of the crime of injury [2]. For instance, if a psychiatrist asks questions that should not be asked to an individual already mentally impaired, or applies a treatment that should not be applied, causing the patient's condition to deteriorate further, the offense of injury may occur [3]. We wish to note that depending on the magnitude of the malpractice, faulty liability may even reach the threshold of eventual intent (olası kast).
Likewise, if a urologist or gynecologist conducts an examination with the door open in a manner exposing the examination, or attempts to examine a patient in the presence of bystanders, or if a physician fails to examine a person properly and misdiagnoses them with a fatal illness, such acts, in our view, fall within the statutory definition (tipiklik) of the offense of injury regarding mental integrity.
In our penal code, the concept of negligence (taksir) is defined as:
"Negligence is the execution of an act without foreseeing the result specified in the statutory definition of the crime, due to a breach of the duty of care and diligence."
In the legislative rationale of the article, it is explained that the duty of care and diligence must be evaluated objectively, and the perpetrator must subjectively be in a position to foresee this duty of care and diligence.
For an individual to be held liable for a negligent act, the negligent form of the crime must be explicitly regulated in the statute. Among crimes likely to occur as a result of medical intervention, negligent forms of the crimes of injury and homicide exist in the law.
For a physician's faulty liability to be invoked, as stated in the legislative rationale, the result must be subjectively foreseeable. The criterion utilized by the Court of Cassation (Yargıtay) regarding whether a result is subjectively foreseeable is the "model agent" (model ajan) criterion. In this criterion, look is given to how a careful and diligent model agent in the concrete circumstances of the perpetrator would act to prevent the occurrence of the result.
Rules of professional ethics are clear:
"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." (Code of Medical Ethics, Art. 26)
The physician is under an obligation to take an anamnesis—that is, the patient's history. The physician shall learn the patient's medical history and obtain information from the patient regarding both the present illness and any potential conditions or allergies. Even in emergency situations, the physician must acquire such information from the patient's relatives [4].
Essentially, this is the result of simple logic. A patient may be a hemophiliac or possess a severe allergy or sensitivity to a drug. If a physician fails to take the patient's history as required by the profession, and the patient dies as a result of the reaction of a rare condition to treatment—a condition the patient would have stated had they been asked—the physician's negligent liability will be invoked.
Where the patient provides false information or provides no information at all, the victim's fault will sever the causal link (illiyet bağı), and the physician's faulty liability cannot be invoked.
Ultimately, we can state that in a case of malpractice, it appears unlikely for a physician to escape negligent liability due to their education, professional rules, and status as an expert in that work. Naturally, this is not a legal presumption; the fault in every incident and perpetrator must be evaluated on its own merits, and grounds eliminating culpability (kusurluluğu kaldıran haller) must be carefully taken into account in every situation.
Conscious negligence is defined in the law as:
"Conscious negligence exists where the result foreseen by the person occurs, despite the person not desiring it..."
It would be more accurate to define this concept as the perpetrator foreseeing the result of their action yet not desiring it, giving no probability whatsoever to the realization of the result [5].
To offer an example regarding the medical profession, where a physician who possesses high self-confidence and believes they can handle any surgical procedure regardless of circumstances performs a medical intervention outside their area of specialization, the physician's liability arising from conscious negligence can be invoked. Likewise, a physician performing a medical intervention while exhausted, intoxicated, or under the influence of drugs can also be evaluated as conscious negligence.
It has been stated that where a physician performs a medical intervention in an area entirely unknown to them, the negligence will not be simple negligence [6].
In cases of conscious negligence, the penalty shall be increased by one-third to one-half.
As we have noted, an ordinary physician can perform a medical practice error only with eventual intent (olası kast).
Unlike negligent liability, any crime type that does not by its nature contain acts impossible to perform with eventual intent can be committed with eventual intent.
In the statute, eventual intent is defined as:
"Eventual intent exists where a person performs the act despite foreseeing that elements in the statutory definition of the crime may materialize..."
The concept is of a nature that may be confused with conscious negligence. The judge will draw the distinction between conscious negligence and eventual intent by evaluating the perpetrator's act as reflected in the external world.
In eventual intent, just as in conscious negligence, the person foresees the result but does not desire it. However, the result is now accepted/assumed by the perpetrator. That is, the person remains indifferent to the probable result that may occur, yet performs the act nonetheless [7].
Of course, a normal physician does not perform a medical intervention with a thought such as "it does not matter whether the patient suffers harm or not." However, where a doctor embarks upon a major surgery in a subject they do not understand at all, holding them liable under eventual intent for resulting harm is probable.
To expand the topic further, where harm occurs as a result of using low-quality products whose risks are known, we consider that a complete acceptance exists. Thus, it should be stated that the physician must be deemed to have caused the result through eventual intent.
Indeed, the Council of State (Danıştay), in one of its decisions, arrived at the conclusion that knowingly using a low-quality product constitutes a gross fault of service (ağır hizmet kusuru), with the reasoning stating:
"... it was noted that HDCV, an imported rabies vaccine, is the vaccine with the fewest complications and that no reported death exists regarding this vaccine; in the face of this situation, the administration committed a gross fault of service by applying a vaccine with a much higher risk, leading to the death of the individual concerned who was bitten by a cat determined not to be rabid under observation; and an argument such as financial impossibility cannot be accepted in the face of the right to life and the requirements of a social state governed by the rule of law..." [8]
As we have noted, we cannot imagine any physician knowingly harming their patient. However, as in every profession, certain difficulties inevitably arise while practicing medicine; yet because physical harm results in the end, parties may find themselves facing serious lawsuits. It is stated that the recent increase in compensation and criminal lawsuits filed due to physician error is directing physicians toward defensive medicine practices. Ultimately, because physicians are human beings as well, it can be said that they are not entirely unjustified in these practices.
Because legal rules must be applied to everyone, under whichever norms a service driver is tried when an accident occurs and passengers die, or an employer failing to take workplace safety measures is tried when employees suffer a workplace accident, physicians will naturally be tried under those same norms. However, accepting that a physician is liable for even their slightest fault makes the situation of physicians somewhat distinct. All these risks and the heavy burden upon doctors' shoulders stem, of course, from the sacred nature of the profession.
Att. Alp Öztekin
