Malpractice (Physician’s Responsibility)

Malpractice is a Latin word meaning “malpractice” and is used in the medical field to express the damage caused by medical malpractice. In a general definition, malpractice is a situation where a patient is harmed as a result of a health professional’s wrongful behaviour or negligence of duty. This concept can be summarised as malpractice or medical negligence and may bring legal liability.

1. Contractual Liability for Defective Medical Interventions

1.1. Conditions of Contractual Liability

In contractual legal relations, the parties must act in accordance with the contract while exercising their rights and fulfilling their obligations. Legal liability for acts contrary to the contract depends on the fulfilment of certain conditions. For contractual liability, all of the following conditions must be present together:

• Realisation of an act contrary to the contract
• This act must be based on fault
• The occurrence of a damage as a result of the act
• The existence of an appropriate causal link between the defective act and the damage

In the event that the doctor violates his/her contractual obligations and performs defective interventions, the doctor’s legal liability arising from the contract may be invoked in case the patient is harmed. In this case, the injured patient has the right to file a lawsuit for pecuniary or non-pecuniary compensation due to malpractice when certain conditions are met. In determining the breach of contract, the nature and provisions of the contract between the parties and the rights and obligations of the parties are important.

In addition, interventions resulting in death or bodily harm as a result of the doctor’s unlawful behaviour may be considered as negligent or negligent crimes within the framework of the Turkish Penal Code and the criminal liability of the doctor may arise.

1.2. Contracts for Aesthetic Purposes and Liability

Beautification procedures such as aesthetic surgeries and dental prosthesis are in the nature of work contracts. In such contracts, the primary obligation of the doctor is to realise the promised result in line with the patient’s request, and the primary obligation of the patient is to pay the fee. In contracts of work, the guaranteed result is expected to be realised.

In addition to the primary obligation, the doctor has additional obligations to fulfil. These are the following

• Correct diagnosis
• Applying the most appropriate treatment method
• Obtaining the patient’s explicit informed consent
• Compliance with the duty of loyalty and care
• Performing the work in person
• Providing materials in accordance with quality standards
• Keeping complete medical records
• Respect for privacy and confidentiality

In case of incomplete or incorrect fulfilment of these obligations, a breach of contract occurs and the doctor’s responsibility comes to the fore. Some aesthetic procedures can be listed as follows.

• Hair Transplant
• Liposuction (Fat Removal)
• Breast Augmentation / Reduction Surgeries
• Dental Implants
• Nose Aesthetics (Rhinoplasty)
• Filling Applications
• Botox Applications
• Chin Aesthetics and Chin Filling
• Face Lift Surgeries
• Eyelid Aesthetics (Blepharoplasty)
• Lip Filling and Thickening Procedures
• Eyebrow Lift and Eyebrow Transplant
• BBL (Brazilian Butt Lift)
• Tummy Tuck (Abdominoplasty)
• Teeth Whitening Applications
• Laser Lipolysis
• Laser Hair Removal
• Microblading (Eyebrow Contouring)
• Facial Mesotherapy
• PRP (Platelet Rich Plasma) Applications
• Stem Cell Therapy
• Ozone Therapy
• Skin Resurfacing Lasers (Fraxel, CO2 etc.)
• Incorrect Material Use in Filling Applications
• Dermapen and Dermaroller Applications
• Chemical Peeling
• Prominent Ear Aesthetics
• Body Contouring Surgeries
• Skin sagging as a result of excessive fat extraction

1.3. Treatment Contracts and Liability

Agreements regarding the execution of the treatment process are generally in the nature of a power of attorney contract. The primary obligation of the doctor (the principal) in a power of attorney contract is to diagnose and treat the patient’s disease. There is no guarantee of a certain result in the treatment contracts based on the agency relationship; the main purpose is to carry out the work and transactions diligently.

In addition to the primary obligation of the doctor, there are also additional obligations. These are as follows:

• Obtaining the patient’s explicit informed consent
• Compliance with the duty of loyalty and care
• Performance in person (except in exceptional cases)
• Acting in the best interest of the patient
• Prevention of harm
• Carrying out the necessary legal proceedings and following up the process
• Keeping complete medical records
• Accountability to the patient
• Compliance with the obligation of confidentiality and secrecy

In case of breach of these obligations, a breach of contract occurs and the legal liability of the doctor arises.

2. Tort Liability in Medical Interventions (Non-Contractual Liability)

The legal liability of the physician in medical interventions may be based on the contract between the parties, or it may be based on tort provisions pursuant to Article 49 of the Turkish Code of Obligations. All of the following conditions must be fulfilled together in order to be able to go to the provisions of liability arising from tort:

• An unlawful act has taken place
• This act must be based on fault
• The occurrence of a damage as a result of the act
• The existence of an appropriate causal link between the defective act and the damage

If these conditions are met, the patient who has been harmed as a result of the unlawful and defective behaviour of the doctor may apply for the legal liability of the doctor arising from tort. In such a case, the injured patient has the right to file a lawsuit for material and moral damages due to malpractice when certain conditions are met.

The determination of unlawfulness is made by determining the acts contrary to the orders, prohibitions and obligations of the legal order and the situations that damage the assets or personal assets.

In addition, if death or bodily harm has occurred as a result of the unlawful behaviour of the doctor, which constitutes a tort, this may be considered a negligent or negligent offence under the Turkish Criminal Code. This may lead to criminal liability of the doctor.

3. Liability Arising from Unauthorised Work in Medical Interventions

In medical interventions, the relationship of acting without a power of attorney covers the interventions made to protect the patient’s health in cases where the patient is unconscious or unable to make a declaration of will. This relationship is based on the concept of presumptive consent. Presumptive consent is based on the assumption that the patient would approve the intervention if he/she were in a position to give consent. The relationship of acting without proxy arises in three basic situations:

• When the patient is unable to declare his/her will: When the patient is unable to declare his/her will, the health institution intervenes for the benefit of the patient within the scope of acting without a proxy.
• Unforeseen Complications during Treatment: This relationship comes into play when an unexpected complication occurs during treatment and the patient’s consent cannot be obtained.
• Invalid Contracts: When the contract between the patient and the organisation is invalid, it is considered to be an unprotected business relationship.

In medical interventions, acting without a power of attorney refers to medical procedures performed without a bond based on the patient’s will. In this case, the health institution or the physician may be held liable for damaging actions. In emergency situations or in cases where the patient is unconscious, interventions performed without obtaining consent in line with the patient’s best interests are considered outside the proxy relationship; therefore, the contractual liability of the physician does not arise.

In addition, compulsory medical interventions performed in the best interest of the patient constitute a reason for compliance with the law pursuant to Article 24/2 of the Turkish Civil Code. Therefore, since the interventions made in line with the patient’s best interest are not considered unlawful, the doctor’s tort liability does not arise.

Pursuant to Article 527 of the Turkish Code of Obligations, liability arising from unauthorised work is handled in three different scopes:

• Full Liability Within the framework of the relationship of acting without a proxy, the private health institution is obliged to take due care for the health and safety of the patient. Violation of this duty of care gives rise to full liability of the institution.
• Narrow Liability: Pursuant to Article 527 of the TCO, if the employee has intervened in order to eliminate the damage or danger of damage encountered by the employer, his/her liability shall be considered lighter. This is a regulation that narrows the scope of unauthorised work.
• Broad Liability: In cases where the patient does not give explicit or implicit consent, if the health institution acts otherwise, the liability will expand and will be liable even for damages arising from unexpected situations.

4. Causes Affecting or Eliminating Liability

The legal liability of the physician for damages arising from medical practices is generally based on fault liability. Therefore, compensation claims against the physician for malpractice may arise if the damage is caused by the physician’s fault.

In some cases, the physician’s liability may be mitigated or eliminated altogether. In these cases, the amount of compensation to be paid to the patient may also be reduced. If the damage is not caused by the physician’s fault, the physician’s liability does not arise and compensation cannot be claimed.

Circumstances Eliminating Liability

The physician’s liability is based on the fact that a negligent act contrary to law or contract causes harm. In this context, there must be an appropriate causal link (a reasonable cause-effect relationship) between the wrongful act and the resulting damage. In the following cases, the physician’s liability may be eliminated due to the interruption of the appropriate causal link:

• Force Majeure: Extraordinary circumstances that cannot be foreseen in advance or cannot be prevented even if foreseen are considered force majeure. If the breach of law or contract is based on a force majeure, there is no appropriate causal link between the physician’s act and the damage. In this case, even if the necessary precautions are taken, the physician cannot be held legally liable for damages arising from force majeure.
• Fault of the Damaged Person: If the primary fault of the injured person is of such a nature that it can cause the damage on its own and leaves the physician’s fault in the background, the appropriate causal link is severed and the legal responsibility of the physician disappears.
• Third Person’s Fault: If the primary fault of a third party other than the injured person and the healthcare professional is of such a nature that it can cause the damage on its own and leaves the physician’s fault in the background, the appropriate causal link is severed and the legal liability of the physician is eliminated.
• Legally Permissible Risk: If the physician has sufficiently informed the patient about possible complications and risks before the intervention and has acted in accordance with the duty of care and medical requirements by obtaining the patient’s informed consent, the complications are considered within the scope of legally permissible risks. In this case, the appropriate causal link between the physician’s intervention and the resulting damage is severed and the physician cannot be held legally liable.

Extenuating Circumstances

The legal liability of the physician depends on his/her fault in the damage caused. However, in some cases, this legal liability may be mitigated and therefore the amount of compensation may be reduced. For example:

Joint Fault (Mutual Fault): If the fault of the injured person is combined with the fault of the healthcare professional and causes the damage to occur or increase, the legal liability of the physician is mitigated due to this additional fault and the amount of compensation is reduced.

Non-liability Agreements

Medical practices must be carried out by health professionals who are experts in their field and legally authorised. Otherwise, medical practice is considered unlawful.

According to Article 115/3 of the Turkish Code of Obligations, if a specialised service can only be performed by law or authorised by the competent authorities, any prior agreements that the debtor will not be liable for slight negligence are null and void. Therefore, the irresponsibility agreements to be made with the doctor are invalid.

5. Lawsuits for Damages Arising from Medical Interventions

In compensation lawsuits arising from medical malpractice of the doctor; every action taken in violation of medical standards during the diagnosis, treatment and care of the patient is taken into account. In such cases, a lawsuit can be filed with the request for compensation for material and moral damages within the scope of the doctor’s legal responsibility. Material and moral compensation cases can be filed separately or together.

5.1. Material Compensation Case

In medical malpractice lawsuits, the burden of proof of damages lies with the plaintiff, i.e. the patient or, in some cases, the patient’s relatives. If it is not possible to determine the exact amount of damages, the judge makes an assessment using his/her discretion.

• In an action for financial compensation, the injured patient can claim compensation for the following items
• New treatment costs to correct the situation caused by an erroneous procedure
• Fee Paid for Incorrect Processing
• Loss of earnings
• Losses arising from loss or impairment of earning capacity
• Losses arising from the shaking of the economic future

In addition, in the event of the patient’s death due to medical malpractice, the relatives of the deceased patient may also claim compensation for the following items:

• Funeral expenses
• If death is not immediate, treatment costs and losses arising from loss of earning capacity
• Losses suffered by persons deprived of the support of the deceased

5.2. Moral Compensation Lawsuit

The aim of moral compensation cases is to pay an amount of compensation that will compensate for the moral damages suffered by the injured person. Therefore, the amount of moral compensation should not enrich the injured person, but only alleviate his/her suffering.

In cases of medical malpractice, non-pecuniary damages may be claimed for the following situations:

• In case of damage to bodily integrity: The pain, suffering and anguish experienced by the injured person
• In the event of serious bodily harm and death: The pain, suffering and anguish experienced by the injured person or the relatives of the deceased

The judge, by assessing the circumstances of the case, shall award an appropriate amount of non-pecuniary damages that will not cause enrichment.

6. Judicial Process in Compensation Cases Arising from Physician Errors

6.1. Parties to the Case

Compensation lawsuits for medical malpractice can be filed by the person who has suffered damage or their legal representatives. However, the parties to the lawsuit vary depending on whether the doctor works in a public or private institution.

Lawsuits Against Doctors Working in the Public Sector: It is not possible to file a lawsuit directly against doctors working in state hospitals, university hospitals or family medicine centres. In these cases, the lawsuit is filed not directly against the doctor, but against the administration to which the doctor is affiliated. In other words, the lawsuit is directed to the Ministry of Health or the university to which the doctor is affiliated.

Lawsuits Against Doctors Working in Private Health Institutions: A lawsuit can be filed directly against doctors working in private hospitals or medical practices. Medical malpractice lawsuits against doctors working in private hospitals are subject to judicial jurisdiction and are heard in consumer courts. In such cases, a lawsuit is usually filed against both the doctor and the private hospital where he/she works, with a claim for material and moral compensation.

6.2. Proof of Medical Intervention Error

In medical malpractice cases, the proof of the wrongful intervention is one of the most important elements that determine the outcome of the case. Pursuant to Article 190 of the Code of Civil Procedure, the burden of proof belongs to the person claiming compensation. In other words, the injured person must prove that the doctor has performed a wrongful intervention.

Although the burden of proof belongs to the plaintiff, there is an exception to this situation. According to the established decisions of the Court of Cassation and the dominant opinion of the doctrine, the burden of proof that the patient’s consent has been obtained is on the doctor. When Article 190 of the Code of Civil Procedure and Article 24 of the Turkish Civil Code are evaluated together, it becomes clear that the doctor must prove that he fulfilled his obligation to inform the patient.

6.3. Statute of Limitations

The statute of limitations for compensation lawsuits to be filed due to malpractice arising from medical interventions varies according to the nature of the legal relationship between the parties:

• Statute of Limitations for Liability Arising from Power of Attorney Contract: Pursuant to Article 147/5 of the Turkish Code of Obligations, the statute of limitations for compensation lawsuits to be filed due to procedures performed for treatment within the scope of general health services is five years. Since the proxy relationship is based on the principle of trust, this period starts to run from the date the proxy is held accountable or the proxy relationship is terminated.

• Statute of Limitations for Liability Arising from the Contract of Works: In compensation lawsuits arising from beautification procedures such as aesthetic interventions, the statute of limitations is five years pursuant to Article 147/6 of the Turkish Code of Obligations. However, if the plastic surgeon has a serious defect, the statute of limitations shall be twenty years according to Article 478 of the Turkish Code of Obligations.

• Statute of Limitations in Tort Liability: The injured person may also claim compensation based on the provisions of tort. Pursuant to Article 72 of the Turkish Code of Obligations, a claim for compensation based on a tort is time-barred within two years from the date on which the damage and the person responsible are learnt, and within ten years from the date of the act in any case.

6.4. Authorised and Competent Court

In lawsuits arising from aesthetic surgery errors, different courts may be competent depending on the legal reason. If the case is based on a contract of work or a contract of attorney, the competent court will be the consumer court. However, if the case is based on tort, the civil court of first instance is authorised.

• General Competent Court in Malpractice Lawsuits: The general competent court is the competent court in the place of residence of the defendant. If there is more than one defendant, the lawsuit may be filed in the place of residence of one of the defendants.

• Competent Court in Contractual Lawsuits: The competent court in contractual lawsuits is the court where the medical practice takes place and the contractual obligations are fulfilled.

• Competent Court in Lawsuits Based on Tort: In lawsuits filed due to tort, the competent court is the court where the tort is committed, the place where the damage has occurred or is likely to occur, or the court of residence of the injured party.

Before filing a lawsuit, there is a mandatory mediation requirement.

During the proceedings, you do not have to come to Turkey or attend the hearings. The court may only ask for an expert report in order to determine the medical deficiency or malpractice.

At this point, if you subsequently undergo additional treatment, the report of the physician or institution that carried out the new treatment that the old treatment was defective is also important.

If you want to be treated before filing a lawsuit, you can have your treatment and use the expert opinion of the new doctor as evidence.

What Will We Do In The Face Of Malpractice For You?

• We can file a criminal complaint against the hospital or the physician for a criminal case,
• We can sue the doctor and his clinic for compensation,
• We can recover the amount you paid to the clinic, doctor or hospital,
• We may charge a fee from the clinic that performs the procedure for new studies, procedures or new operations that need to be done for your relaxation, aesthetic appearance and health,
• We can file a lawsuit for moral compensation for the distress, pain and sorrow you have experienced and claim moral compensation.
• We can claim from the doctor and the clinic for the external costs you have incurred and have been away from work.
• We can complain to the Ministry of Health about the physician and the health clinic for the cancellation of permits and licences and for professional disciplinary proceedings.
• With our lawyers specialised in Criminal Law, we can file a Criminal Case against the Physician and the Clinic.

Frequently Asked Questions