Turkish Medical Malpractice Lawyers: Medical malpractice is a critical concern worldwide, as patients place their trust in the hands of healthcare professionals to receive safe and effective treatment. In Turkey, the legal landscape surrounding medical malpractice is evolving through supreme court decisions day by day to ensure patient rights are protected, and this has led to the emergence of Turkish medical malpractice lawyers who play a pivotal role in seeking justice for victims and upholding healthcare standards.

For the last couple of years, we can say that there has been a significant increase in medical malpractice lawsuits in Turkey, filed against healthcare professionals and providers. Especially in recent years, with the devaluation of the Turkish Lira against Dollar, Euro and Sterling, foreign tourists prefer Turkey as their frequent destination for their esthetic operations.

However as a result of absence of a health tourism authorization certificate for intermediary organizations operating in health tourism sector, the offering of services by health tourism companies on the internet that differ greatly in quality from the promised VIP services, the lack of one-on-one consultations between the doctor and the patient in arranged hospitals, the employment of foreigner doctors in clinics without equivalence certificates or medical interventions performed by individuals who are not legally doctors, and/or patients undergoing multiple different aesthetic surgeries at the same time, a series of malpractice cases occur.

This article prepared by our Turkish medical malpractice lawyers delves into medical malpractice cases in Turkey, the significance of lawyers specialized in health law, responsibilities and services of Turkish medical malpractice lawyers in Turkey, and the legal framework that guides their actions. With this article, we aim to inform our malpractice victim client candidates briefly by explaining the legal remedies applicable for their cases.

Legal Definition of Medical Malpractice in Turkey

The medical profession is inherently risky in nature, and the work of physicians is directly related to the protection of individuals’ right to live and bodily integrity. Therefore, physicians are required to conduct themselves in their medical practices in accordance with medical standards and demonstrate the care expected of them within the framework of professional ethical rules.

Failure to comply with medical standards and the lack or absence of the expected care within the framework of professional ethical rules may bring about the responsibility of physicians.

Medical malpractice, as defined by the World Medical Association, is ‘damage caused by a physician’s failure to perform standard practice, lack of skill, or failure to provide treatment to the patient during treatment.’ In our view, medical malpractice refers to any intentional or negligent act by a healthcare professional resulting from any medical intervention that harms the patient’s bodily integrity and health, or causes negative consequences in the patient’s body, or contributes to the growth/progression of the resulting negative consequences.

The physician’s liability for damages caused As a result to faulty application, failure to adhere to medical standards, and negligent behavior the physician will be held liable for damages caused on patient.

What are the Differences of Medical Malpractice and Complication?

If the duty of care and attention has been fulfilled, and the intervention has been carried out in accordance with medical standards, yet the patient experiences unchanged negative outcomes, the resulting undesired outcome is considered a complication.

When a medical intervention is applied correctly and completely, the physician will not be held responsible for complications that may arise in the patient. However, it is crucial to emphasize at this point that, for the physician not to be held responsible for complications, the physician must have informed the patient about the complications and obtained their consent in accordance with the law.

Therefore, making a correct distinction between medical malpractice and complications is of utmost importance. As a result of actions constituting medical malpractice, physicians may face two types of lawsuits: compensation lawsuits filed for the compensation of material and moral damages that arise, and criminal lawsuits filed when the physician’s actions constitute crime.

Of course, whether the physician’s intervention is considered malpractice or not, whether actions of the physician falls within the scope of complication or not, whether the physician is at fault or not are elements that will be detailly examined by Health Sicences University experts and/or Institution of Forensic Medicine experts that will be appointed to the case by the court.

Common Examples of Medical Malpractice in Turkey

Medical practice errors (malpractice) primarily occur due to diagnostic errors, treatment errors, preventive treatment errors (such as inadequate patient follow up), and equipment errors connected to medical procedures, negligence, and application. The most common actions constituting malpractice that we encounter are as follows:

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.
Suicide of a mentally ill patient due to lack of clinical observation and patient follow up.

It is not possible to limit examples of medical malpractice with the examples we provide above. In order to learn whether if you are a victim of medical malpractice or not, you can consult our medical malpractice lawyer in Turkey and obtain a detailed case evaluation.

Legal Framework for Medical Malpractice:

In Turkey, medical malpractice falls under the broader scope of civil law, and specific regulations guide how these cases are handled. Articles relevant to construction agreements and tortious act regulated under the Turkish Code of Obligations outlines the legal basis for medical malpractice claims, stipulating the duty of healthcare providers to provide a certain standard of care to their patients.

Additionally, the “Turkish Medical Association’s Medical Deontology Regulation” sets ethical standards for medical practice too, which can also serve as evidence in medical malpractice cases. For protection of patient rights medical malpractice lawyers in Turkey use the legal framework below for medical malpractice cases:

Constitution of Turkish Republic
Law on the Protection of the Consumer
Turkish Obligations Code
Turkish Criminal Code
Turkish Medical Association’s Medical Deontology Regulation
Patient Rights Regulations

Medical Malpractice Lawsuits in Turkey

Medical malpractice in general can be defined as harm caused by the physicians due to failure to perform the standard procedure during an operation or a treatment. If presence of action constituting malpractice is detected, doctors and related institutions that provide healthcare services can be legally held liable.

Medical malpractice occurs when a hospital or a doctor causes an injury to a patient through their negligent actions or omissions. Failure to fulfill the promised result in aesthetic operations and dental treatments constitutes medical malpractice too.

Victims are generally not left with the aesthetic result they have asked the doctor to make. Since aesthetic surgeries are defined as construction agreements in our law system as per Turkish Obligations Code, the doctor is obliged to perform the result he undertook. So if we are able to prove with evidences that the doctor didn’t comply with his promise, result of the operation will be considered as medical malpractice.

On the other hand there might be other actions of doctor constituting medical malpractice too in each case, we have come face to face with cases where for example the hospital or the doctor is changing the fees right before the operation, charging you more, not making an allergy test before the operation, not making pregnancy tests, not informing the patient about risks and complications before the operation, making the operation or the surgery in an unhealthy environment thus causing infection, using low quality implants, using wrong method or surgical technique or directly conducting the wrong type surgery.

Examples of medical malpractice are not limited with these and can be extended. But in general in each case we detect more than one action constituting medical malpractice. In order to obtain a case evaluation you can contact with our Turkish medical malpractice lawyers and obtain more information relevant to your case and learn if you have a case or not.

Turkish health law plays a pivotal role in shaping the healthcare landscape and safeguarding the rights of patients and healthcare providers. It provides a legal foundation for ensuring the ethical and professional conduct of medical practitioners, maintaining the quality of healthcare services, and establishing mechanisms for addressing disputes and grievances.

Medical malpractice lawsuits in Turkey can broadly be categorized as civil malpractice lawsuits and criminal malpractice lawsuits.

If actions of the doctor constitutes medical malpractice, if the hospital you took the operation in is a private hospital, you can file a civil litigation with material and moral compensation claims before the consumer courts based in Turkey. Before filing a civil litigation, we send a warning letter to the hospital and the doctor and provide them a specific period of time so that they can compensate the amount.

The purpose of issuing a warning letter is to remind to the addressees of the pain and suffering the victim has experienced due to their actions constituting medical malpractice, of the patient’s rights, the material and moral damages the victim has suffered and the legal remedies that can be taken if the damage is not compensated by the addressees.

Such a notice is being issued legally by a notary public based in Turkey and is used as evidence for a civil lawsuit or a criminal complaint to be filed which also proves that the remedy of applying to the addressee has provided no solution on the matter.

If the hospital, the clinic and/or the doctor is not willing to compensate the amount upon safe receipt of the warning letter and within the time period granted, then we proceed with mediation phase on behalf of our clients since it is cause of action, meaning that if you don’t apply to mediation and directly file the lawsuit, your lawsuit might be rejected by the judge due to lack of cause of action.

Mediation is a dispute resolution method as per the Code of Civil Procedure and it is possible to close most of the cases through mediation if the healthcare provider is not a high turnover hospital.

Generally high turnover hospitals are in the tendency to not close the file with settlement. If parties are not willing to settle through mediation, our medical malpractice lawyer in Turkey proceed with civil litigation with material and moral compensation claims which will take around 3 to 4 years depending on workload of the court of first instance, court of appeal and the supreme court.

The victim can claim his/her surgery costs, expenses suffered after the surgery, accommodation and flight costs related to surgery and revision surgery, revision operation costs, emergency treatment costs and loss of income or compensation due to incapacity to work. Moral compensation amount on the other hand will be determined by our lawyers in accordance with the material compensation amount and in an amount that will not constitute unjust enrichment as per Turkish law.

On the other hand, client has the right to also file a criminal complaint against the doctor before the relevant chief public prosecutor’s office. We generally suggest our clients to proceed with both civil and criminal litigation since civil litigation will enable you to collect your material and moral damages while on the other hand, criminal litigation will cause the doctor to be put on trial due to -most of the time- Turkish Criminal Code, Article 89, reckless injury.

We can say that the distinction between civil and criminal malpractice cases serves multiple purposes in the Turkish legal system. Civil cases focus on compensating victims for their losses, while criminal cases prioritize holding professionals accountable for their actions to safeguard public trust in various professions, particularly in healthcare. If client is willing to pursue with criminal complaint, it is important to mention that client shall not to miss the complaint period of 6 (six) months following that you are a victim of medical malpractice.

But even if client misses this period, if a forensics report on his/her civil malpractice case indicating the doctor has gross negligence is obtained, client can proceed with his/her criminal complaint and he/she will not be limited with the complaint period of mentioned 6 (six) months.

Competent and Authorized Courts in Turkey for Medical Malpractice Cases

Cases arising from medical malpractice due to a contract or construction or retainer contract fall within the jurisdiction of consumer courts. Compensation lawsuits against independently practicing doctors due to medical malpractice are filed in consumer courts.

Similarly, lawsuits filed against private hospitals due to medical malpractice are also heard in consumer courts. It is possible to direct legal actions arising from doctor errors due to a contract of construction or retainer contract against both the doctor and the hospital or clinic in the same lawsuit.

The general jurisdictional courts, according to the Law on Civil Procedure numbered 6100, are the courts of the defendant’s place of residence at the time the lawsuit is filed. In cases where the lawsuit is directed against multiple defendants, the court of the place of residence of one of the defendants is considered the competent court.

In compensation lawsuits filed due to malpractice and arising from a contract of construction or a retainer contract, the competent court is the court where the contractual obligations will be performed. If a compensation lawsuit is filed due to malpractice is based on tort, the court of the place where the tort occurred and the court of the place where the damage occurred are also considered as competent courts that plaintiff may choose to file his/her lawsuit.

Statute of Limitations in Medical Malpractice Lawsuits in Turkey

According to Article 72 of the Turkish Code of Obligations, the right to file a compensation lawsuit due to tort is subject to a statute of limitations period of 2 years from the date the victim learns about the damage and the party responsible for compensation.

Since actions constituting malpractice are essentially tortious, malpractice lawsuits against private hospitals or doctors due to tort are subject to a statute of limitations period of 2 years from the date of learning about the damage and the party responsible for compensation, and in any case, 10 years from the date the act occurred.

However, if the right to compensation arises from an offense requiring a longer statute of limitations period under criminal law regulations, the longer period is taken as the basis for the statute of limitations.

Malpractice lawsuits based on a contract for a construction against a private hospital or physician are subject to a statute of limitations period of 5 years. In cases where the doctor has gross negligence in medical practice, regardless of the nature of the procedure, the statute of limitations period is 20 years. In this context, we emphasize that aesthetic surgeries are considered within the scope of a construction contract.

Malpractice Liability in Turkey

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 and(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 (Turkish Obligations Code, Article 502, ff.).

However it should be known that ‘treatment contract’ is in the form of contract of construction (Turkish Obligations Code, Article, 470, ff.) if the surgery performed is 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.

On the other hand, in the 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 succeed with 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 as per contract of construction articles of the Turkish Obligations Code.

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 to be filed against 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 choosing the private hospital first, 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 regulated under Turkish Obligations Code 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 such 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, since the lawsuit will be filed against the hospital and the doctor simultaneously, 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 own 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.

Validity of Informed Consent in Medical Malpractice Cases in Turkey

In accordance with Article 31 of the Patient Rights Regulation, when obtaining the patient’s consent, the patient or their legal representative must be informed and enlightened about the subject and consequences of the medical intervention. In case of a violation of the obligation to inform, the patient’s consent will not have been obtained in a healthy manner, the patient’s right to determine their own future will have been taken away, and unjust interference with the patient’s physical integrity will result in material and moral damage.

The burden of proving that the obligation to inform and obtain the patient’s informed consent has been fulfilled lies with the physician. Insufficient information is considered equivalent to not informing the patient, and a physician who fails to fulfill the obligation to inform will be held responsible for all damages. Consent obtained through coercion, threat, haste, inadequate information, or deception is not considered valid.

For a written consent given by the patient for surgery to be legally valid, the consent obtained must be informed consent, covering the risks and complications that may arise during the operation, the method to be applied, diagnostic and treatment options, and even the materials to be used during the operation. It should be noted that informed consent is a prerequisite for a medical intervention to be considered lawful. Even if this prerequisite is met, if the medical intervention is faulty, it cannot be claimed that the consent was given for a flawless medical intervention and therefore relieved the physician of liability.

Additionally, obtaining consent hastily without explaining the content of documents just before the intervention, or obtaining consent during or after the intervention, will not constitute valid informed consent. The timing of the information should be well-adjusted, allowing the patient time to think, research the content of the consent text, and ask questions. A consent form with undisclosed content should not be signed by the patient, and there should be no pressure on the patient to sign. On the other hand, it is essential for the information to be provided in the patient’s primary language. If this is not possible, the information should be provided in the patient’s language with the assistance of an interpreter.

Can I Win a Medical Malpractice Lawsuit in Turkey?

As mentioned above, the number of medical malpractice cases opened in Turkey in recent times is quite high. There are many Supreme Court decisions in Turkey where plaintiffs who filed medical malpractice lawsuits have won their cases. Malpractice cases can result in favor of or against the patient depending on different parameters.

Of course, winning the case depends on the evidences brought forward by the patient, expert opinions collected before filing the lawsuit and forensics report obtained in the court case.

Within such a forensics report it is necessary to examine whether the medical intervention is in accordance with law or not, whether the plaintiff’s requests are met by the doctor or not, whether the duty of disclosure is fulfilled or not, and whether the management of complications were done correctly or not as indicated within 2020/1808 E., 2020/2925 K., 09.11.2020 T. numbered decision of 15th Civil Chamber of the Supreme Court.

Therefore, it is crucial to prepare a strong case file before filing a malpractice lawsuit in Turkey, and even obtaining opinions from third-party doctors specialized in the same field. In order to raise your chance to win a malpractice lawsuit in Turkey and strenghten your claims, our lawyers will provide you a detailed and strategic list of evidence so that you can collect your evidences confidently and with peace in mind.

Breach of Patient Confidentiality

The physician and hospital staff must respect the patient’s right to privacy and keep confidential and protect the patient’s health condition, treatment, diagnosis and all other personal information. It should be an important principle applied in hospitals that patient files should not be taken out of the healthcare institution except for legal obligations.

The patient’s information contained in the patient file should not be shown, published or sent to anyone other than the physicians who treat or will treat the patient. When any information is revealed publicly, whether intentionally or negligently, the person who is harmed by the disclosure of the information must be compensated for the material and moral damage suffered.

If such a personal information is revelaed, the person may lose his/her job, be embarrassed in public and his/her Business, social life and relationships may be damaged. In all these cases, the person responsible for the confidentiality of the information will have to pay compensation. The person victimez due to actions constituting breach of patient confidentiality may file a criminal complaint before the chief public prosecutors office under Article 136 and 134 of the Turkish Criminal Code.

According to Article 134 of the Turkish Criminal Code, anyone who violates the privacy of people’s private lives is punished with imprisonment from one to three years. If confidentiality is violated by recording images or sounds, the penalty will be increased. According to Article 136 of the Turkish Criminal Code, anyone who unlawfully gives, disseminates or obtains personal data of another person, that person is punished with imprisonment from two to four years.

If you would like the real persons involved to be investigated and legally punished, you may file a criminal complaint, follow up the investigation dossier and participate in the public case after the bill of indictment is issued through a lawyer. On the other hand, if you have suffered material and/or moral damages due to breach of confidentiality, you can also file a civil lawsuit with material and moral compensation claims before the consumer courts.

If your photos or personal information is published in social media or internet environment you can file a petition before the relevant Criminal Court of Peace for immediate removal of such photos and information. It is beneficial for the client to draw a strategic legal map thus for personalized case evaluation please contact our medical malpractice lawyers in Turkey.

Should I deposit a security in order to file a medical malpractice lawsuit in Turkey?

As a rule, foreign natural and legal persons filing a lawsuit before the Turkish Courts, intervening in a lawsuit filed before the Turkish Courts or filing in enforcement proceedings in Turkish Enforcement Offices must provide security determined by the court to cover the costs of litigation and enforcement as well as the damages of the opposing party. However again as a rule, the court exempts the plaintiff, intervenor, or enforcer from providing such a security based on reciprocity. This matter is explicitly regulated in Article 48 of the International Private and Civil Procedure Law.

Among the multilateral agreements foreseeing exemption from security, undoubtedly, the 1954 dated Hague Convention on Civil Procedure stands out. As per Article 17 of the Hague Convention, “No security, bond or deposit of any kind, may be imposed by reason of their foreign nationality, or of lack of domicile or residence in the country, upon nationals of one of the Contracting States, having their domicile in one of these States, who are plaintiffs or parties intervening before the courts of another of those States.

The same rule shall apply to any payment required of plaintiffs or intervening parties as security for court fees. All conventions under which Contracting States have agreed that their nationals will be exempt from providing security for costs or for payment of court fees regardless of domicile shall continue to apply.”.

Thus we can say that plaintiffs that are nationals of Contracting States such as Germany, China, Holland, Israel, Spain, France, Austria, Switzerland, Italy, Romania, Albania will not be obliged to deposit an amount as security. On the other hand, citizens of United Kingdom and Australia, are exempt from providing security in accordance with the Treaty of Judicial Assistance between the Republic of Turkey and the Government of the United Kingdom dated 1931.

Our clients requirement to deposit security while filing a lawsuit is being examined by our Turkish medical malpractice lawyers, and our clients are being duly informed accordingly about the results detected. Conducting such an investigation before filing a medical malpractice lawsuit in Turkey is strategically important and protects our clients due to the fact that if the plaintiff is required to deposit security but fails to do so, the defendant may raise objections regarding security deposit, indicating also that the lawsuit shall be rejected. If you would like to obtain more information on this matter, please contact our Turkish medical malpractice lawyers.

Do I Need A Doctor Report to File A Medical Malpractice Lawsuit in Turkey?

Before initiating lawsuits based on service fault and medical malpractice seeking pecuniary and non-pecuniary damages, we recommend—if possible—that our clients obtain a medical report from a physician who specializes in the same field.
This report should contain impartial findings regarding the patient’s current health status and condition following the operation. It must specify the adverse outcomes resulting from the surgery and, finally, identify the procedural errors made by the operating physician, along with a professional explanation of what alternative procedure should have been followed. The report should also include referenced test results and medical photographs as annexes. Additionally, the report must bear the physician’s stamp and signature. However, it is not mandatory for the patient to obtain such a report from a physician prior to filing a lawsuit. In malpractice cases, once the lawsuit is filed, a preliminary hearing is conducted, followed by the hearing of witness testimonies. Subsequently, the case file is sent for expert review to a university hospital, a state hospital, and/or the Council of Forensic Medicine. During this review, the patient is subjected to examination and diagnostic evaluations. It may take over a year for the file to be referred to an expert for examination. If the patient’s condition is urgent—requiring revision surgery or rendering it impractical to wait for the examination process—then, prior to filing such a lawsuit, an evidentiary determination lawsuit may be filed. This allows for the patient’s medical condition to be promptly documented. The expert report obtained through such an evidentiary determination process may later serve as a principal piece of evidence in the subsequent lawsuit for pecuniary and non-pecuniary damages.

What happens if the private hospital conducted the operation became a Foundation University Hospital?

According to the established precedents of the Supreme Court, foundation universities are considered public legal entities in accordance with Article 130 of the Turkish Republic Constitution and Additional Article 2 of the Higher Education Law, and they operate within the framework of public rules. Therefore, the actions and transactions of the defendant hospital have a public nature. In cases where damages arise from service negligence during the provision of public services, administrative jurisdiction is competent.

With the 13/05/2014 dated and 2014/13-566 E. and 2015/1339 K. numbered decision, the Plenary Session of the Supreme Court’s Civil Chamber ruled that, “Considering that the claim for compensation for material and moral damages due to damages suffered as a result of incorrect treatment falls within the jurisdiction of administrative courts for adjudication and resolution, the decision of the court to dismiss the lawsuit on the grounds of lack of jurisdiction is accurate.”. Through such a decision it was indicated clearly that lawsuits filed with material and moral compensation claims arising from public services, administrative courts have jurisdiction.

When private hospitals where patients undergo to surgeries are sometimes affiliated with foundation universities, the legal procedures relevant to medical malpractice lawsuits change entirely. In such cases, instead of filing a lawsuit against the hospital and the doctor before the Consumer Courts, the lawsuit shall be filed against the Ministry of Health before the Administrative Courts. Before filing such a full remedy action before the Administrative Courts, the patient is obliged as per law to apply to the Ministry of Health first for his/her damages to be compensated first.

If the application of the patient is rejected by the Ministry of Health then the patient can proceed with the full remedy action before the Administrative Courts. Our Turkish medical malpractice lawyers handle all legal procedures relevant to Clients case whether the lawsuit shall be filed before the consumer courts or before the Administrative Courts. In order to detect which law procedure will be applied to your case please contact our Turkish medical malpractice lawyers. We are pleased to assist you with your medical malpractice lawsuit.

The Role of Turkish Medical Malpractice Lawyers

Through Patient Rights Regulation, Article 4, patient rights refer to the rights of individuals who need to benefit from health services, just because they are human, and which are guaranteed by the Constitution of the Republic of Turkey, international treaties, laws and other legislation. And Turkish medical malpractice lawyers, also known as medical negligence attorneys are legal experts who specialize in cases involving healthcare-related errors that cause harm, injury, or death to patients playing a vital role on protection of patient rights regulated with national and international laws. These lawyers offer a vital service in ensuring that medical professionals are held accountable for their actions, and that victims and their families receive compensation for material and moral damages suffered.

These legal professionals are well-versed in medical law, obligations law, ethics, and the intricate details of healthcare procedures. Their role involves investigating cases thoroughly, collaborating with medical experts to detect a breach of duty, and compiling compelling evidence to support their clients’ claims. Turkish medical malpractice lawyers stand up for their clients’ rights and interests and work towards securing fair settlements or pursuing litigation if necessary.

Responsibilities and Services of Turkish Medical Malpractice Lawyers

Case Evaluation: Turkish medical malpractice lawyers assess the viability of a potential client case by reviewing his/her medical records and evidences, consulting with experts specialized on the field, and determining if the healthcare provider deviated from the standard of care.
Evidence Collection: Turkish medical malpractice lawyers gather medical records, expert testimonies, and any relevant documents to build a strong case that demonstrates negligence on the part of the healthcare provider. Our Turkish medical malpractice lawyers send a strategic evidence list to our client candidates and expect the client candidate to provide us as many documents as possible stated therein. We ask also our clients to send us the sequences of events with dates which is basically a letter our client is informing us about his/her pre and post operation condition, what he/she has gone through, his/her material damages, name of the liable healthcare personnel and the healthcare provider so that we can explain every detail to the judge appointed to his/her case.
Skillful Negotiation and Settlement: Some cases are settled out of court. Turkish medical malpractice lawyers negotiate with insurance companies or the opposing party to secure a fair settlement that covers medical expenses, lost wages, and emotional distress if parties are willing to settle.
Litigation: In cases where a settlement cannot be reached, Turkish medical malpractice lawyers represent their clients in court, presenting evidence and arguments to prove the healthcare provider’s negligence.
Advocacy: Beyond individual malpractice cases, Turkish medical malpractice lawyers contribute to raising awareness about patient rights and healthcare standards. They may participate in advocacy efforts to improve the legal framework surrounding medical malpractice.

Key Steps To Follow Before Building a Medical Malpractice Case

Bring Witnesses: Bring a witness with you to the hospital or the clinic. Never take a surgery without taking a witness with you. Your witness can be a family member or a friend, anyone that will witness your experiences in the hospital. Witness statements will be needed for your moral compensation claim too.
Proof of Payment: Take written proof of your payment. Try to deposit the amount to bank account of the hospital. The biggest mistake you will do is to make payment by hand and take no receipt as a proof of payment. We have seen before clinics acting with bad faith indicating within their reply petition that they haven’t seen or operated such a patient before and claim the lack of capacity to sue.
Gathering Your Evidences: Make sure you collect documents from the hospital, especially epicrisis/discharge report. Remember that you have the right to ask your patient file.
Observing Actions of the Personnels: Observe if the hospital will make you sign an informed consent form. If the consent form is not in your language or if your doctor didn’t enlighten you about content of the consent form especially about risks and complications of the surgery that may occur, this situation alone constitutes medical malpractice.
Consult a Turkish Medical Malpractice Lawyer: If you realize that you are a victim of medical malpractice while you are still in the hospital, call immediately a Turkish Medical Malpractice Lawyer that can come over on-scene, provide you information on the immediate legal steps to be taken to build a strong case, file a formal complaint and collect your evidences along with your patient file.

Medical Malpractice Lawyers in Turkey

Our law firm’s specialization in medical malpractice sets it apart as a legal powerhouse dedicated to addressing issues within the healthcare system. Their team of experienced medical malpractice lawyers in Turkey possesses an in-depth understanding of medical law, obligations law, ethics, and the intricacies of healthcare procedures.

This expertise enables our medical malpractice lawyers in Turkey to effectively navigate the complexities of medical malpractice cases, ensuring that both patients’ rights and professional standards are upheld. Central to our law firm’s mission is the protection of patient rights. In a field where the vulnerable may suffer harm due to negligence or misconduct, the firm has emerged as a staunch advocate for victims seeking justice. By providing a voice to those who have suffered due to medical errors, our law firm not only seeks financial restitution but also contributes to a safer and more accountable healthcare environment.

Should I Deposit a Security in Order to File a Medical Malpractice Lawsuit in Turkey?

The contractual reciprocity regarding exemption from providing security will be ensured in the presence of bilateral or multilateral agreements between the Republic of Turkey and the State whose citizen is the plaintiff, foreseeing the exemption from security. Among the multilateral agreements foreseeing exemption from security, undoubtedly, the 1954 dated Hague Convention on Civil Procedure stands out.

As per Article 17 of the Hague Convention, “No security, bond or deposit of any kind, may be imposed by reason of their foreign nationality, or of lack of domicile or residence in the country, upon nationals of one of the Contracting States, having their domicile in one of these States, who are plaintiffs or parties intervening before the courts of another of those States.

What happens if the private hospital conducted the operation became a Foundation University Hospital?

In cases where damages arise from service negligence during the provision of public services, administrative jurisdiction is competent. With the 13/05/2014 dated and 2014/13-566 E. and 2015/1339 K. numbered decision, the Plenary Session of the Supreme Court’s Civil Chamber ruled that, “Considering that the claim for compensation for material and moral damages due to damages suffered as a result of incorrect treatment falls within the jurisdiction of administrative courts for adjudication and resolution, the decision of the court to dismiss the lawsuit on the grounds of lack of jurisdiction is accurate.”.

Through such a decision it was indicated clearly that lawsuits filed with material and moral compensation claims arising from public services, administrative courts have jurisdiction. When private hospitals where patients undergo to surgeries are sometimes affiliated with foundation universities, the legal procedures relevant to medical malpractice lawsuits change entirely. In such cases, instead of filing a lawsuit against the hospital and the doctor before the Consumer Courts, the lawsuit shall be filed against the Ministry of Health before the Administrative Courts.

Before filing such a full remedy action before the Administrative Courts, the patient is obliged as per law to apply to the Ministry of Health first for his/her damages to be compensated first. If the application of the patient is rejected by the Ministry of Health then the patient can proceed with the full remedy action before the Administrative Courts. Our Turkish medical malpractice lawyers handle all legal procedures relevant to Clients case whether the lawsuit shall be filed before the consumer courts or before the Administrative Courts. In order to detect which law procedure will be applied to your case please contact our Turkish medical malpractice lawyers. We are pleased to assist you with your medical malpractice lawsuit.

Supreme Court Decisions on Medical Malpractice in Turkey

1. The Physician’s Obligation to Act in Accordance with Professional Ethical Principles and Medical Standards

In its decision numbered 2014/26571 E., 2015/33584 K., dated 18.11.2015, the 13th Civil Chamber of the Supreme Court ruled as follows:
“The case concerns the plaintiff’s claim for pecuniary and non-pecuniary damages based on the allegation that, following a motorcycle accident resulting in trauma to his right wrist, he consulted the defendant physician, and due to the physician’s fault, incorrect treatments applied during and after surgery resulted in non-union of the fracture line, ultimately leaving the right wrist impaired. The dispute centers on whether the defendant physician, who performed the surgery, committed an unlawful act and, consequently, was at fault in the occurrence of the plaintiff’s injury.

According to the arguments and admissions presented in the case, the legal basis of the claim is the contractual relationship of attorney. In other words, the lawsuit is based on a breach of the duty of care arising from the attorney contract between the plaintiff and the defendant physician (see Turkish Code of Obligations Articles 386 and 390).

An attorney is not held liable for failing to achieve the intended result but is responsible for failing to exercise due care in the efforts to achieve that result. The attorney’s liability is generally governed by the rules pertaining to the liability of employees (Art. 390/2). Like an employee, an attorney must act with due diligence and is liable even for slight negligence (Art. 321/1). Therefore, all professional faults committed by a physician, even if minor, must be considered grounds for liability.

A physician must not only exercise professional diligence but also the level of care and attention expected of any reasonable person according to general life experience to prevent harm to the patient. In medical practice, the physician is required to fulfill certain professional standards, to value the patient’s condition, to act in accordance with medical science, and to carry out the treatment while taking all necessary precautions.

In situations that raise even the slightest doubt, the physician is obligated to conduct the necessary investigations to eliminate such doubt and take preventive measures. When choosing among various treatment methods, the physician must consider the patient’s specific circumstances, avoid placing the patient under unnecessary risk, and select the safest option.

Indeed, a client who entrusts a task to a professional—particularly a physician—has every right to expect diligent care and attention. An attorney who fails to act with such diligence must be considered, pursuant to Article 394/1 of the Turkish Code of Obligations, to have improperly performed the mandate.”
With this reasoning, the Court emphasized that in cases where an attorney contract exists between the physician and the patient, the physician, as the attorney, has a duty to perform the task with due diligence. The treatment must conform to medical standards, and the physician may be held liable even for slight negligence. Accordingly, the Court reversed the lower court’s decision (decision of the court of first instance) in favor of the plaintiff (the patient). (For the full text of the decision of the 13th Civil Chamber of the Supreme Court, numbered 2014/26571 E., 2015/33584 K., dated 18.11.2015, and for similar rulings, see: hukukturk.com)

2. The Duty of the Physician, as a Representative, to Perform Their Duties with Due Care

In another decision rendered by the 13th Civil Chamber of the Supreme Court (File No: 2014/46695, Decision No: 2016/6790, dated 07.03.2016), the following verdict was stated:
“The plaintiffs initiated the present lawsuit on the grounds that the plaintiff, …, suffered bleeding after surgery due to the alleged breach of the duty of care by the defendant physician and the hospital. They claimed that the bleeding could not be stopped, and as a result of the complications, the plaintiff’s tongue was cut, teeth were removed, he/she could no longer eat or speak properly, and was unable to use the right side of his/her body effectively. They sought compensation for material and moral damages.
The basis of the lawsuit is an attorney agreement, and it is predicated on a breach of the duty of care (Articles 386–390 of the Turkish Code of Obligations). According to the relevant provisions regulating attorneys’ retainer agreement, the basis of the claim lies in the attorney relationship and is grounded in a violation of the duty of care. While the attorney is not responsible for the failure to achieve the intended result, he/she is liable for damages arising from any lack of diligence in the efforts, acts, or behavior undertaken to achieve that result. The agent’s liability is generally subject to the same rules applicable to employees. The agent is required to act with the diligence of an employee and is liable even for the slightest negligence (Article 321/1 of the Turkish Code of Obligations).
Therefore, all faults committed by a physician within the scope of his/her professional domain, even minor ones, should be deemed sufficient to establish liability. The physician is obliged to fulfill all professional requirements to ensure the patient does not suffer harm, to identify the patient’s condition medically in a timely manner without delay, to take all necessary precautions appropriate to the concrete circumstances, and to determine and apply suitable treatment without delay. Even in cases of minimal uncertainty, the physician must conduct investigations to resolve such uncertainty and, in the meantime, take protective measures. When choosing among various treatment options, the characteristics of the patient and the illness must be considered, risk-inducing attitudes and actions should be avoided, and the safest path must be selected.
Indeed, the client (patient) has the right to expect from the physician, acting as their attorney and a professional service provider, meticulous care and attention at every stage of treatment. A physician who fails to exercise due care shall be deemed to have improperly performed the attorneyship under Article 394/1 of the Turkish Code of Obligations.
If the outcome does not change despite adherence to medical standards and practices, the physician shall not be held liable. On the other hand, Article 5 of the Convention on Human Rights and Biomedicine regulates the issue of ‘Consent’ and stipulates: ‘An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.’ This provision defines the scope of consent and aligns with the established practices of our Chamber. Mere consent to surgery is not sufficient; potential complications must also be explained. However, as emphasized above, such consent must be informed.
In line with this, Article 26 of the Regulation on Medical Ethics states: ‘The physician shall inform the patient regarding the patient’s health condition and diagnosis, the type of the proposed treatment, its success probability and duration, the risks it entails for the patient’s health, the usage and potential side effects of prescribed medications, the consequences of not accepting the proposed treatment, and the possible alternative treatments and their risks. This information shall be presented in a manner considerate of the patient’s cultural, social, and psychological background. The information must be understandable to the patient. The persons to be informed apart from the patient shall be designated by the patient. All medical interventions require the individual’s free and informed consent. Any consent obtained through coercion, threat, incomplete information, or deception is invalid. In emergencies or when the patient is a minor, unconscious, or incapable of making decisions, consent shall be obtained from the legal representative.’ This provision details how informed consent must be obtained. In the case of informed consent, the burden of proof lies with the physician or the hospital.
In the present case, the expert report dated 22.03.2013 obtained by the court concluded that in cases of late-onset bleeding occurring around the fourth day after tonsillectomy, the cause would not be attributable to procedures during the operation but rather to post-operative tissue necrosis, which cannot be foreseen by the physician. Similarly, in the expert report dated 19.02.2014, it was noted that such post-operative bleeding constitutes a complication occurring in 1% to 10% of these types of surgeries and that the defendants bear no liability.
Although the expert reports obtained by the court indicate that the bleeding was a complication, it is clear from the aforementioned principles that, for the defendants to be absolved of liability due to the complication, the patient must have been properly informed in detail about the possible consequences of such a complication. While the “Patient Consent Form” dated 29.03.2010 does contain information under section a of the “Risks of Surgery” stating that bleeding may occur within the first two weeks and that such bleeding might require hospitalization, further surgical intervention, and blood transfusion, it does not include explicit statements about the possibility of the patient needing intensive care, losing the ability to use the right side of the body properly, having their tongue cut or teeth removed. In this context, it is understood that the patient was not adequately informed about the potential post-bleeding health consequences, and the consent form does not meet the legal requirements set forth in the relevant provisions.
Accordingly, the court should have considered these factors and, if necessary, obtained a report from an expert to determine the amount of compensation, and rendered its judgment based on the result of a comprehensive assessment of all claims. However, the court’s dismissal of the case based on an incorrect evaluation constitutes a procedural and legal error, necessitating reversal of the decision.”
In the content of this decision, it is clearly stated that in a situation where an attorneyship relationship is established between a physician and a patient, the physician, acting as an attorney, is under the obligation to perform their duties with due care. The treatment must be carried out in accordance with medical standards, and the physician is liable even for minor negligence. Furthermore, the ruling delineates the scope of consent to be obtained from the patient, emphasizing that such consent must qualify as informed consent. Even if the incident experienced by the patient falls under the category of a known medical complication, the physician shall still be held liable if the patient was not adequately informed about that specific complication.
(For the full text of the decision by the 13th Civil Chamber of the Court of Cassation, File No: 2014/46695, Decision No: 2016/6790, dated 07.03.2016, and for similar rulings, see: hukukturk.com)

3. The Patient Whose Trust Has Been Compromised Is Not Obligated to Seek Correction of a Negative Outcome from the Same Physician Who Caused It

In its decision numbered 2019/2716 E., 2019/3692 K., dated 30.09.2019, the 15th Civil Chamber of the Supreme Court ruled as follows:

“The case arises from an aesthetic medical procedure, which is considered a contract for construction. The judgment of the first-instance court, which dismissed the claim, was appealed by the plaintiff’s attorney. … Based on the expert reports obtained during the trial, the court concluded that no fault could be attributed to the defendants and dismissed the case. Upon the plaintiff’s appeal, the 13th Civil Chamber of the Regional Court of Appeal rejected the appeal on its merits.
It is not disputed that a contract for construction, as regulated under the repealed Code of Obligations No. 818 (Articles 355 et seq.), existed between the parties at the time the agreement was concluded. The parties had agreed that the defendant would perform aesthetic procedures on the plaintiff.
According to Article 355 of the Turkish Code of Obligations governing contracts for construction, the contractor undertakes to produce a work, while the employer undertakes to pay a fee in return. By its nature, the contractor guarantees the outcome. In cases involving complications, the duty to inform and proper management of the complication are also the contractor’s (i.e., the physician’s) responsibility.
Furthermore, the Convention on Human Rights and Biomedicine (Oviedo Convention), signed on 04.04.1997 and published in the Official Gazette on 09.12.2003 (No. 25311), and subsequently ratified on 16.03.2004 as part of domestic law, must be considered in the resolution of this dispute. Article 4 of the Convention, titled “Professional Standards,” provides that “any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.”
Given that a medical intervention was performed in a hospital setting, the provisions of this Convention are applicable. The standard referenced in Article 4 is, without question, the medical standard, and any deviation from it may occur during diagnosis, treatment, or post-intervention follow-up.
‘Medical standard’ refers to well-established and proven methods deemed necessary for achieving the intended medical outcome, based on medical experience and current scientific knowledge. These are fundamental professional principles. It is imperative that this standard be applied even in aesthetic procedures, which constitute a contract of construction.
In the present case, the plaintiff consulted the defendant for aesthetic purposes—specifically a rhinoplasty. Accordingly, the subject of the contract was to achieve a desirable and aesthetically pleasing appearance. The very reason for the contract was to produce a specific result. A work, in this context, is a result achieved through effort requiring artistic skill and expertise; the contractor is obligated to produce the work in a manner that benefits the employer and causes no harm.
The case file reveals that the deformity resulting from the defendant’s operation was corrected by another specialist. In his defense, the defendant stated that the plaintiff was invited for a second operation but did not attend. However, as the contract of construction under the Code of Obligations includes a commitment to achieving a result, and given that this commitment was not fulfilled in the initial operation, the plaintiff—whose trust in the physician had been compromised—could not reasonably be expected to return to the same physician for corrective surgery.
Therefore, the costs incurred by the plaintiff for the corrective rhinoplasty should be calculated based on an expert report from a new panel. Furthermore, the claim for moral damages must be evaluated. The judgment issued based on an incomplete examination is thus incorrect.”
Accordingly, the Supreme Court accepted the plaintiff’s appeal and overturned the lower court’s decision (the decision of the court of first instance) in the plaintiff’s favor.
This decision serves as an example of a situation where the contractual relationship between a patient and physician qualifies as a contract of construction. It affirms that in disputes arising from aesthetic surgeries, the physician is considered a contractor under such a contract, and is therefore obligated to produce a specific aesthetic outcome. The ruling also stresses that medical procedures must comply with established medical standards, that any deformity caused by the physician may be corrected by another specialist, and that a patient whose trust in the physician has been compromised is not obligated to return to the same doctor for corrective treatment.
(For the full text of the Court of Cassation’s decision No. 2019/2716 E., 2019/3692 K., dated 30.09.2019, and similar rulings, refer to: hukukturk.com.)

4. The Physician’s Obligation as Contractor to Achieve the Promised Aesthetic Result

In its decision dated 26.11.2018, numbered 2018/4621 E., 2018/4686 K., the 15th Civil Chamber of the Supreme Court:
“The lawsuit was filed for the collection of pecuniary and non-pecuniary damages arising from an aesthetic surgery contract characterized as a contract of construction. The judgment of dismissal rendered by the court was appealed by the plaintiff’s counsel. … Based on the expert reports obtained from … and … University, the court concluded that the method applied and the resulting outcome of the initial surgery were not flawed, that bruising and pain were complications that can occur after any surgery and do not indicate negligence on the part of the defendant, and that the outcomes of subsequent surgeries could not be considered as stemming from faults related to the first operation. Therefore, the case was dismissed.
It is undisputed that the relationship between the parties constituted a contract of construction governed by Articles 470 et seq. of the Turkish Code of Obligations (TCO) No. 6098, which was in force at the time the contract was concluded. The agreement pertained to the provision of aesthetic procedures to the plaintiff. In light of the nature of the contract between the plaintiff and the defendant, it is clear that this differs from a standard treatment agreement between physician and patient, and thus the provisions of the contract of construction apply.
According to Article 470 of the TCO, which regulates contracts of consturction, the contractor is obliged to produce a specific result, while the client undertakes to pay a fee in return. By its nature, a contract of construction entails the contractor guaranteeing the outcome. Since the plaintiff sought the defendant’s services for aesthetic improvement of her breasts, it is evident that the subject of the contract was to achieve a desirable and aesthetically pleasing result through surgery. The purpose of entering into the contract was the attainment of a specific result. A work product is achieved through the effort, skill, and craftsmanship of the contractor, who is obliged to deliver a result beneficial to the client and without causing harm.
Furthermore, Article 471 of the TCO governs the obligations of the contractor and states:
“(1) The contractor must perform the promised service with due diligence and loyalty, observing the legitimate interests of the client. (2) In determining the contractor’s liability arising from the duty of care, the conduct expected from a prudent contractor performing similar work in the same field shall be taken as the standard.”. Therefore, as made clear by this provision, the contractor–in this case, the physician–is also obligated to perform the contracted work with loyalty and diligence. In evaluating any breach of this duty of care, the standards applicable to a prudent and professionally competent contractor in the relevant field shall apply.
Again, given the nature of the contract for work, the contractor is deemed to have guaranteed the result. In the case of complications, the physician is also responsible for fulfilling the duty to provide sufficient information (informed consent) and for properly managing any complications that arise.
The Convention on Human Rights and Biomedicine (Oviedo Convention), signed on 04.04.1997, published in the Official Gazette dated 09.12.2003 (No. 25311), and incorporated into domestic law upon approval on 16.03.2004, provides in Article 4, titled “Professional Standards”, that: “Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.”. Since the plaintiff underwent a medical intervention in a hospital setting, resolution of the dispute must also take this provision into account. The standard referenced in Article 4 of the Convention clearly refers to medical standards. Any deviation from medical standards can arise during diagnosis, treatment, or the post-operative phase. “Medical Standard” refers to scientifically proven and tested procedures deemed necessary to achieve the intended purpose of treatment, reflecting both professional experience and the current state of medical science. These basic principles, having been tried and established, also apply to aesthetic interventions performed under a contract for work.
Furthermore, Article 5 of the same Convention explicitly regulates the obligation to obtain informed consent.
Additionally, since the procedure performed on the plaintiff was a medical intervention conducted in a hospital setting, the current legislation mandates that hospital records be kept accurately and completely, and that the physician obtain the patient’s consent. Indeed, Article 70 of Law No. 1219 requires that patient consent be obtained for major medical interventions. Moreover, the Patient Rights Regulation issued pursuant to the Private Hospitals Law includes similar requirements in Articles 7 and 16, mandating that patient records be maintained comprehensively and without deficiency.
In the expert report obtained by the court, it was stated that based on pre- and post-operative photographs, the bruising and swelling observed after surgery were to be expected from any surgical procedure and did not indicate fault on the part of the defendant. A similar conclusion was reached in the expert report obtained from the Faculty of Medicine of … University.
However, in evaluating the present case, it becomes clear from the case file that the aesthetic intervention performed on the plaintiff did not yield a beneficial result for the client, that the duty to inform prior to the first operation was inadequately fulfilled, and that the medical records were not properly maintained. Consequently, it cannot be said that the contractor fully discharged the contractual obligation, and the physician was at fault. The lack of sufficient information regarding potential complications, along with the improper management of complications, further supports this conclusion. Therefore, the court’s reliance on insufficiently reasoned expert reports was erroneous.”
Through this reasoning, the Supreme Court annulled the lower court’s decision (decision of the court of first instance) in favor of the plaintiff (patient). The referenced ruling underscores that in disputes arising from aesthetic interventions, the physician bears an obligation to achieve the promised aesthetic result. If the intended result is not achieved, the physician may be deemed at fault. Furthermore, the patient must be duly informed of all associated risks and complications, and failure to provide such informed consent will give rise to the physician’s liability.
(For the full text of the ruling of the 15th Civil Chamber of the Court of Cassation, Case No. 2018/4621 E., Decision No. 2018/4686 K., dated 26.11.2018, and for similar rulings, see: hukukturk.com.)

5. The Physician’s Duty to Inform the Patient

In another case, where the court of first instance rejected the plaintiff’s claims for material and moral compensation separately, and the plaintiff’s appeal was also denied, the dispute file was brought before the 3rd Civil Chamber of the Supreme Court. In its decision numbered 2021/165 E., 2021/10553 K., dated 21.10.2021, the Supreme Court explicitly stated:
“The case concerns the claim for compensation for material and moral damages arising from an open wound that developed in the plaintiff following a colonoscopy performed by the defendant doctor … at the … hospital affiliated with the defendant company. The legal relationship between the parties is attorneyship.
Even though the attorney is not liable for the failure to achieve the intended result while performing the attorneyship, they are liable for any damages arising from the lack of due care in the efforts, procedures, and conduct undertaken to achieve that result. Therefore, physicians acting as attorneys must fulfill their duty of care by employing all the possibilities offered by science and technology.
The attorney is obligated to meet all professional standards to prevent harm to the patient, to promptly and accurately determine the patient’s medical condition, to take all necessary precautions required by the specific situation without delay, and to identify and implement the appropriate treatment in a timely manner. Even in situations that create minimal doubt, the physician must conduct further examinations to eliminate such doubts and take precautionary measures in the meantime.
When choosing between different treatment methods, the patient’s specific circumstances and the nature of the illness must be considered, and the physician must avoid actions or decisions that expose the patient to unnecessary risks, opting instead for the safest method. Indeed, the patient has the right to expect rigorous diligence and attention at all stages of the treatment from the professional mandated to provide it.
If the physician fails to demonstrate the required level of care, they shall be considered to have improperly performed the mandate under Article 510 of the Turkish Code of Obligations (formerly Article 394 of the Code of Obligations). However, if the outcome does not change despite the physician acting in accordance with medical rules and standards, the physician shall not be held liable.
Furthermore, Article 5 of the Convention on Human Rights and Biomedicine (Biomedicine Convention) addresses the matter of “Consent” and stipulates:
‘Any intervention in the health field may only be carried out after the person concerned has given free and informed consent. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.’
This provision clarifies the scope of consent and aligns with the established practices of our Chamber. Merely consenting to the medical procedure is not sufficient; the risks and possible complications must also be explained. As emphasized above, this consent must be informed consent.
Article 26 of the Regulation on Medical Ethics also sets forth that:
‘The physician shall inform the patient about the patient’s health status and diagnosis, the type of proposed treatment, its likelihood of success and duration, the risks associated with the treatment, the use and possible side effects of the prescribed medication, the potential consequences of not accepting the recommended treatment, alternative treatment options, and their respective risks. This information must be presented in a manner that is considerate of the patient’s cultural, social, and psychological circumstances. The information must be conveyed in a way that the patient can understand. The patient determines any persons other than themselves to be informed.’
All medical interventions must be carried out with the person’s free and informed consent. Consent obtained under pressure, threat, inadequate information, or deception is invalid. In emergencies, or where the patient is underage, unconscious, or otherwise incapable of making decisions, consent must be obtained from the legal representative.
In the present case, a ‘Colectomy Information and Consent Form’ dated 23/06/2015 was issued in the name of the plaintiff patient and signed by the plaintiff. For the second medical procedure performed on 02/07/2015, an ‘Ileus Information and Consent Document’ of the same date was prepared, and it was signed by the plaintiff’s daughter as a relative.
However, no explanation was provided as to why the consent form dated 02/07/2015 was signed by the daughter instead of the plaintiff herself. This matter was not addressed by the court or the expert panel.
Given that the burden of proof in matters of informed consent lies with the physician or the hospital, the court must obtain a new expert report prepared by a panel of experts from university medical faculties, composed of professionals with relevant expertise, ensuring that it is suitable for adversarial and judicial review, and specifically addresses the objections raised by the plaintiff against the prior expert report.
Therefore, the decision rendered with incomplete examination is erroneous and must be overturned.”
Through this decision, the Supreme Court annulled the lower court’s ruling in favor of the plaintiff (patient). The aforementioned ruling highlights several important principles:
The importance of the patient’s consent,
That mere approval of a medical intervention is not sufficient,
The patient must be informed of the risks and complications,
That consent must be in the form of “informed consent”,
That consent must be suitable to the patient’s cultural, social, and psychological condition,
That the patient must be able to understand the information,
And that, if the patient is capable of giving consent, it must be given by the patient personally.
(You can access the full decision of the Court of Cassation 3rd Civil Chamber numbered 2021/165 E., 2021/10553 K., dated 21.10.2021, and similar rulings via hukukturk.com.)

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Supreme Court Decisions on Medical Malpractice in Turkey

1. The Physician’s Obligation to Act in Accordance with Professional Ethical Principles and Medical Standards

2. The Duty of the Physician, as a Representative, to Perform Their Duties with Due Care

3. The Patient Whose Trust Has Been Compromised Is Not Obligated to Seek Correction of a Negative Outcome from the Same Physician Who Caused It

4. The Physician’s Obligation as Contractor to Achieve the Promised Aesthetic Result

5. The Physician’s Duty to Inform the Patient

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