MALPRACTICE LAW Istanbul, Turkey
MEDICAL MALPRACTICE & HEALTH LAW
Do you think you are a victim of medical malpractice in Turkey? If your answer to this question is yes, then we would say that this article written by our medical malpractice lawyer in Turkey is just prepared for you in order to assist you and provide you a preliminary information.
In 18.01.2005 dated circular the Ministry of Health indicated that number of the lawsuits due to
service defects made by our inpatient treatment institutions filed against the Ministry is rising day by day because that health services are among the services that do not accept mistakes and the expectations of the patients are gradually increasing and that the Ministry is being faced with the payments of large amounts of compensation due to the increasing number of service defect cases. From the letters of this circular we clearly understand that malpractice cases filed against the Ministry is increasing and in this context, changes should be made in the structuring of Turkish health system. We can say with recent fortiori analysis, malpractice cases filed against the doctors and/or hospitals have significantly increased since 2005.
The World Medical Association defines malpractice as physicians failure to conform to the standard of care for treatment of the patients’ condition, or a lack of skill or negligence in providing care to the patient, which is the direct cause of an injury to the patient. As a result to this definition, it is seen that consepts of ‘treatment that shall be applied’ and ‘treatment applied by the physician’ terms have emerged in regards to medical practice and medical operation. Here, in situations where a significant difference can be mentioned between these two conditions can be directly subject to medical malpractice assessment.
Of course persons who should make such an assessment are physician experts having technical knowledge in the field of treatment. Malpractice lawyer in Turkey on the other hand draw a legal road map in which the legal rights of the patient are interpreted and bring similar cases to the agenda of a litigation, in order to clarify whether the medical intervention or treatment claimed to be in scope of malpractice, which occurs due to fault of the physician or the institution.
The subject of malpractice lawsuits may be the dysfunction, late or poor functioning of the public service, inappropriate behavior (duty fault) or personal action or inaction (personal fault) of the health personnel. Personal fault of the health personnel may be caused by the physicians failure to perform standard and up to date practices, lack of skills or not treating the patient. At any case, in order for malpractice to be mentioned, there must be a causal link between the damage and the physicians behavior. In addition, we need to emphasize that, all treatments and medical practices carry risks due to their characteristics and nature.
In some cases, risks may occur even if the necessary attention and care is taken by the physician. The fact that these risks remain within the permissible risk (informed consent) is called complication. In such cases, it is not possible to define intervention or action of the physician as malpractice. In this respect, it is of great importance to draw boundaries of the distinction between complication and malpractice in legal disputes that occur between the patient and the physician and/or the hospital.
In cases where the physician is at personal fault, civil and criminal actions against the physician can be substituted together or separately. If the treatment and surgery took place in public hospitals, the full remedy action should be directed to the institution, not to doctors/real persons. On the other
hand, the relevant administration may request inclusion of the negligent persons to the lawsuit. This inclusion is important for the administration to recourse to the liable public personnel. In cases where the treatment and surgery took place in private hospitals, the physician shall be addressed as the defendant along with the private hospital. This type of malpractice cases are being handled by the Consumer Courts.
Legal nature of the relationship established between the patient and the physician is also an important point to detect limits of the physicians’ responsibility. In doctrine, it is generally accepted that the contract established between the patient and the physician is a retainer agreement. In cases where a retainer agreement regulated in Turkish Obligations Code Article 502 comes into existence, the physician undertakes to conduct a certain work or provide certain services of the principal in other words it is a duty of performing the agreed work. In such a relationship, the physician is expected to perform the work diligently, to act loyal to the principal and to pay attention to the work agreed upon. On the other hand, in cases where the relationship between the patient and the physician occurs in the form of a contract of construction, the physician is directly under the obligation to achieve his contractual commitment with success. For example, in dental prostheses and aesthetic operations, we can say that the relationship between the patient and the physician shall be interpreted under contract of construction and the physician is under a much heavier responsibility compared to the retainer agreements.
As a result of the defective actions of the physician, the patient may claim material and moral compensation for breach of contractual relationship and tortious act. In compensation cases to be filed within this context, travel and accommodation expenses incurred due to treatment, hospital, surgery and treatment costs, physiotherapy costs, loss of income for the days not worked can be claimed as material compensation. If the patient suffers from loss of confidence, trauma and psychological disorders such as PTSD, depression due to medical intervention and/or feeling distressed she can also claim a reasonable amount of non-pecuniary compensation.
As mentioned above, a criminal complaint against the doctor can also be filed before the public prosecutors’ office. The interference can be deemed lawful only if the interference was made with the purpose of treatment, if the diagnose and treatment was made in accordance with medical standards and requirements of technology, if the physician has shown enough care, if the patient has been informed about the possible risks and consequences of the treatment and the operation and if the patient had the power to distinguish all these elements before the operation. In absence of these dynamics, actions of the physician has the risk to be considered as will-full murder, will-full and malicious injury, reckless injury or reckless killing. At this point we would like to state that the investigation and prosecution of the alleged crime of the healthcare professionals working in public hospitals are subject to investigation permission to be obtained by the public prosecutor according to 4483 numbered Law. Since grant or refusal of the investigation permission demand is an administrative decision, it is possible to appeal against the decision of the administration before the administrative judiciary.
Acting with the motto of loyalty to the truth and dedication to justice, MESCI Law Firm with her team consisting of malpractice lawyer in Turkey, specialized in the field of medical malpractice and health law in Turkey for many years gets to the center of the conflict and problem, draws a unique pathway for her clients by bringing incident based solutions and performs strategic movements in order to shield her clients rights and guards the balance of parties interests. Our malpractice lawyer in Turkey are educated and experienced on following up civil, administrative and criminal litigations, on negotiations to be made with the counter party, mediation and settlement procedures and complaints to be made before administrative institutions. Contact our malpractice lawyer in Turkey if you are a victim of malpractice and obtain fast and reliable information.
OUR RANGE OF SERVICES AS MEDICAL MALPRACTICE LAWYER IN TURKEY UNDER HEALTH LAW
- Sending a warning letter to the addressees for settlement and collection of compensation amount.
- Filing for mediation before the relevant mediation office for face to face settlement meetings with the hospital and the related healthcare personnel.
- Filing civil malpractice lawsuit in Turkey against the hospital and/or the healthcare personnel before the Consumer Courts.
- Filing criminal complaint against the healthcare personnel liable for medical malpractice in
Turkey, following up the investigation and prosecution phases.
- Filing complaints before the administrative institutions for administrative investigation to be started by these entities against the hospital and/or the healthcare personnel.
- Filing full remedy action against the hospital before the administrative courts.
QUESTIONS THAT ARE FREQUENTLY ASKED TO OUR MALPRACTICE LAWYER IN TURKEY
In order to provide our client candidates more information on medical malpractice cases in Turkey, our malpractice lawyer in Turkey prepared a FAQ letter below. In order to learn if you have a case or not, please duly contact our malpractice lawyer in Turkey and obtain detailed information.
Subsequence to the provision of health and health care services to consumers/patients, some undesirable and unexpected consequences may arise regarding health condition of patients. These results are called medical malpractice or complication in the medical literature. Malpractice, also named as medical errors are defined by the World Medical Association as “harm caused by the physicians’ failure to perform standard practice during treatment, lack of skill or not giving treatment to the patient”. In other words, if the damage occurs due to the lack of knowledge, skill or attention and care required by the medical education of the physician, the undesired result occured is called malpractice. On the other hand, in order for the undesired result to be called a complication (permissible risk), the medical application must have been carried out carefully and attentive by relevant healthcare personnels with sufficient knowledge and skills, by taking all necessary precautions; but the damage must have occured dispite these.
We briefly can say that in case presence of malpractice is detected, relevant individuals and institutions that provide health services can be legally held liable. Therefore, it is of great importance to draw boundaries of the distinction between complication and malpractice in disputes between the patient and the physician and/or the hospital. To give an example, we can say that a wound infection that occurs after surgery will be considered as complication. However, if the doctor did not apply prophylactic antibiotics to prevent the possible infection from the beginning, the result of infection will be considered as malpractice due to lact of care. Of course, persons who should make such an assessment are physician experts having technical knowledge in the field of relevant treatment method and this is why in Turkey both case file and the patient is being sent to Institution of Forensic Medicine for examination physically. A malpractice lawyer, on the other hand draws a legal pathway for the patient in order to clarify whether the result claimed to be within the scope of malpractice during the litigation process occured due to the fault of the relevant health personnel and/or the hospital, and to protect the rights of the patient.
- Failure to fulfill the promised result (for example, correction of the crooked nose) in aesthetic operations.
- Malpractice related to anesthesia errors such as giving an overdose of one or more anesthesia drugs, dispersing anesthesia drugs to a patient with known allergies, providing little anesthesia drugs leading anesthesia awareness or where the patient is aware of the surgery.
- Not enlightening patient before the operation. Consent taken from the patient must be informed consent. It is not enough for the patient to just give consent for the procedure. The patient should also be informed about risks and complications that may occur during the operation.
- Misdiagnosis of the patient as a result of misinterpretation of laboratory results,
misinterpretation of MRI results, or failure to refer the patient to a doctor who is an expert in the relevant field.
- Surgical errors such as use of improper sterilization techniques, performing the wrong surgical technique or procedure, improper care leaded the patient to develop an infection or blood clots.
- Failure of medical professionals to follow up proper procedures of health care such as not having a back-up medical professional in the hospital, prematurely discharging the patient, failing to follow up condition of patient with test results, failing to provide patient with proper instructions after surgery.
It is not possible to limit examples of medical malpractice with the above. In order to learn whether if you are a victim of medical malpractice or not, please consult our medical malpractice lawyer in Turkey and learn if you have a case or not.
Limits of healthcare personnel and hospital liability, Articles that will be applied to the malpractice case and statute of limitation that will be taken as a basis shall be determined by detecting legal relationship established between the patient and the healthcare personnel and/or the hospital.
The legal nature of the relationship established between the self-employed physician and the patient may occur as a contractual relationship, negotiorum gestio or tortious act. In cases where the legal relationship is embodied as a contractual relationship, it is generally accepted in the doctrine that the ‘treatment contract’ made between the physician and the patient is in the form of a retainer agreement. However it should be known that ‘treatment contract’ is in the form of contract of construction if the operation made by the doctor was an aesthetic operation or the treatment took part as dental prosthesis. In cases where retainer agreement comes into existence as per Article 502 of the Obligations Code, the physician undertakes to conduct a certain work or provide certain services of the patient. In retainer agreements the physician as the proxy is under a duty of performing the agreed work and is expected to perform the work diligently, to act loyal to the patient and to pay attention to the work agreed upon only. In cases where the relationship between the patient and the physician is embodied in the form of a construction agreement, the physician as the contractor is directly obliged to bring about the result he undertook towards his patient. Therefore, when liabilities of the doctor embodied under the retainer contract as the proxy and contract of construction as the contractor are compared, we can say that doctor as the contractor will be under a much heavier liability.
If there is no contractual relationship between the patient and the physician, we can say that provisions of tortious act can be taken as basis of the legal case with regards to the doctor. The absence of a contractual relationship between the patient and the physician occurs when the patient has entered into a contractual relationship with a private hospital by directly determining the private hospital, not the doctor and when the doctor was appointed by the private hospital. In such cases, malpractice lawsuit can be filed against the doctor again but this time when determining liability of the doctor, provisions of tortious act shall be applied.
If the hospital where the patient was taken into operation is a private hospital, it is accepted by the doctrine that the contractual relationship is established between the patient and the hospital, not between the patient and the doctor. The contract between the patient and the private hospital is called the ‘hospital admission contract’. The doctor made the intervention, surgery or treatment cannot be considered as one of the parties of mentioned contract. Depending on the type of operation, the hospital admission contract can come into existence as a retainer agreement or construction agreement just like it does for the medical contracts we specified above. For the cases where the patient directly choses and applies to the hospital, Supreme Court too indicates that a contractual relationship established between the patient and the hospital and hospitals responsibility is liability without fault (absolute liability) and based on Turkish Obligations Code Article 66 (liability of employer) or based on Article 116 (responsibility from actions of auxiliary persons). In this case, the responsibility of the physician should be evaluated within the scope of tortious act liability.
On the other hand in cases where patient choses the doctor directly and thus contractual relationship is established between the patient and the doctor, if the doctor uses a private hospital/clinic as an auxiliary person for his medical interventions and surgeries, the responsibility for the results of medical intervention performed in the private hospital, as a rule, rests with the doctor who performed the medical intervention, but also the hospital can also be held liable because for not showing the necessary care in the selection of the personnel it employs. We see that Supreme Court decisions are also in accordance with doctrine and within this scope, 22.05.2003 T., 2003/2333 E., 2003/6348 K. numbered decision of 13th Civil Chamber of the Supreme Court, 2000/118 – 2002/1916 numbered decision of 4th Sisli Civil Court of First Instance and 11.12.2002 T., 2002/13- 1011 E., 2002/1047 K. numbered decision of Supreme Court Assembly of Civil Chambers can be reviewed.
As it can be seen, each legal dispute shall be evaluated in itself, within its scope, in order for correctly determination of the persons that can be held liable, scope of their liability and Articles that can be applied to the dispute. On the other hand, in civil compensation cases filed due to malpractice, it is sometimess seen that compensation and liability reasons compete. In such cases, Article 60 of Turkish Obligations Code will be applied; if liability of a person depends on multitudiousness of reasons, the judge decides according to liability reasons that provide the best compensation opportunity to the injured party, unless otherwise is provided by law or requested by the injured party.
The statute of limitation to demand compensation in malpractice cases to be filed against the doctor within the scope of tortious act articles, is expired after two years beginning with the time by which the damaged notices the loss and damage and the person liable for compensation and in any case after ten years beginning with the date of act.
The statute of limitation to demand compensation in malpractice cases to be filed against the private hospital or the doctor within the scope of retainer agreement articles, is expired after five years as per Turkish Obligations Code, Article 147/5.
The statute of limitation to demand compensation in malpractice cases to be filed against the private hospital or the doctor within the scope of construction agreement articles, is expired after five years as per Turkish Obligations Code, Article 147/6.
It shall not be forgotten by client canditates that the physician can also be held liable under Turkish Criminal Code meaning that along with the -civil- malpractice lawsuit, if the doctors actions constitute reckless injury, you can also file a criminal complaint before the Chief Public Prosecutors Office as per Turkish Criminal Code, Article 89. Reckless injury stipulated under Article 89 of TCC is one of the offences prosecuted on complaint. If the victim, being competent to do so, has not filed a complaint within six months of in respect of an offence where the investigation of such is subject to a complaint, no investigation shall be instituted. Mentioned six-month period starts from the date the person entitled to complain learns about the act and who the perpetrator is. No complaint will be sought in the event that reckless injury is committed with conscious negligence. Similarly, for major cases of the crime (TCC Article 89/2, 89/3 and 89/4) and the pursuit of injury crimes that cannot be remedied by simple medical intervention the term of 6 months for complaint is not legally sought.
If the physician is found to be at fault, there are two types of compensation to be paid by the private hospital and/or the doctor; one being material compensation, and the other being moral compensation.
In terms of determining the amount of compensation, since the provisions regulating the liability of tortious act are also applied by analogy to the liability arising from contract, it does not matter whether the physicians liability is based on a contract or tortious act. In this context through the compensation lawsuit to be filed, travel and accommodation expenses, hospital expenses, treatment and surgery expenses, expenses incurred if the treatment is continuous, medicine expenses, reconstruction expenses, loss of earnings and lost earnings may be claimed as elements of material compensation.
In addition, if the patient has suffered from psychological disorders such as loss of self confidence, post traumatic stress disorder, depression due to medical intervention, and/or if he/she experiences intense helplessness, pain and suffering, he/she can also request a reasonable amount of moral compensation that will not constitute unjust enrichment.
It is not always possible to determine the exact amount of material and moral compensation to be claimed before filing the lawsuit. The amount of material compensation often requires an actual expert calculation. For this reason, there is a legal benefit in demanding the calculable part of compensation amount with the phrase ‘without prejudice to the rights regarding the surplus’. On the other hand, it is very difficult to calculate the moral compensation amount demanded in order to cover moral damages of the patient. Moral compensation shall be determined by the Judge himself by taking into consideration characteristics of the incident and equitable principles. We would also like to indicate that moral damages cannot be claimed in the form of partial or indefinite claims by using the phrase ‘without prejudice to the rights regarding the surplus’ contrary to the rule of indivisibility of pecuniary damages so amount to be claimed through the lawsuit petition shall be carefully determined.
We understand that patients consent must be obtained before interfering with his bodily integrity when we review ‘the right of the person to determine his own future’ is stipulated under Article 17/2 of Constitution. By taking his consent, patients right to make decisions regarding his own bodily integrity is respected and preserved. The physicians medical intervention is considered lawful, if only he obtains patients ‘explicit consent’ before the treatment he will apply or the operation he will make. In other words, the physician must have enlightened the patient in order to be able to benefit from this reason for compliance with the law, considering that the patients consent was obtained. Otherwise, it cannot be claimed that the consent given is valid, and the physician may be held criminally liable even if the medical intervention was done in accordance with medical practice and rules. What is important here is that informed consent is a prerequisite for the intervention to be considered lawful. If the medical intervention is faulty despite the fulfillment of this prerequisite, it cannot be sait that the consent of the physician does not remove the responsibility of the physician, since ‘consent has been given for a flawless medical intervention’.
It cannot be claimed that the non-personal, printed/copy consent form that is not regulated specifically for the patients medical condition has any legal validity. The fact that the form was not filled and signed in accordance with the Supreme Court decisions is also considered as an admission that the clarification on details (enlightenment) was not made by the hospital or the doctor. In addition, at this point, we find it useful to emphasize that any contract clause that aims to remove the legal and criminal liability of the physician will not be considered or deemed legally valid. Pursuant to Article 115 of the Turkish Obligations Code, the agreements on exclusion of liability for gross negligence in advance are definitely void. If a service that requires specialization, a profession can only be performed by the permission of law or competent authority, the agreements on exclusion of obligors liability for slight negligence in advance are definitely void.
The Regulation on Procedures and Principles Regarding Investigation of Healthcare Professionals due to Medical Operation and Practice and Recourse of the Compensation Paid by the Administration (hereby will be referred to as the Regulation) has entered into force on 15 th of June, 2022 by being published on 31867 numbered Official Gazette.
With the Regulation, investigation of doctors and other healthcare personnels upon complaint to be made by real persons before the Public Prosecutors Office, with the allegation of being victim of malpractice as a result of their medical intervention or execution of their profession is now subject to Professional Liability Board’s permission. Complaints made by the victims of malpractice will be directed to the Board for permission to investigate by the relevant Prosecutor’s Office, a preliminary examination will be made by the Board and the Board will decide whether if an investigation permit will be granted or not. It is possible for the complainant to file objection before Ankara Regional Administrative Courts within 10 days upon service of the Board decision.
It is important to note that the Regulation doesn’t bring any innovation regarding the civil malpractice lawsuits that are substituted before the consumer courts against the physicians working in private hospitals. Civil lawsuits can be filed against healthcare personnels, doctors and hospitals before the consumer courts in the same procedural way as it was before publishing of the Regulation and in this case, compensation decreed by the court will be paid by the doctor and/or the hospital jointly and severally.
The procedure on compensation lawsuits filed before the administration on the other hand has changed. Previously, compensation lawsuits were directly substituted against the administration as a full remedy action before the administrative courts and compensation decreed by the court was being paid by the administration to the patient and administration was making a recourse claim against the related healthcare personnel. By the New Malpractice Regulation, it is left to the examination and decision of the Professional Liability Board on intent and fault whether if recourse claim can be directed to the doctor or not. Recourse of the compensation paid by the administration to the relevant healthcare personnel is conditional upon the determination of ‘misconduct by acting deliberately against the requirements of ones duty’ with finalization of the decision (The Regulation, Article 12/2). In other words, recource claim can be directed to the healthcare personnel upon issuance of the finalization statement only. The administration, which will replace the recourse action, will be given two months to apply to the Professional Liability Board and if the administration does not make the aforementioned application within this period, recource action will result with dismissal without prejudice.
It should be emphasized that the Regulation does not cover the physicians working in the academic staff of state universities and foundation universities.
Acting with the motto of loyalty to the truth, MESCI Law Firm with her team consisting of malpractice lawyer in Turkey, provides to her clients effective legal consultancy and services to her clients that are doctors, patients and/or hospitals. Our malpractice lawyer in Turkey are well-versed in private law and administrative law proceedings and have in-depth knowledge of civil and criminal litigation in theory and in practice. With years of experience in the field of health law, our malpractice lawyers in Turkey have aimed to provide credible and professional legal services to their clients on medical malpractice and consumer protection cases in Istanbul. Please don’t hesitate to take an appointment in order to obtain legal opinion of our malpractice lawyer in Turkey on your case.