WHAT IS A MALPRACTICE LAWSUIT?

WHAT IS A MALPRACTICE LAWSUIT? HOW TO FILE A MALPRACTICE LAWSUIT? WHAT ARE THE CONSEQUENCES OF MALPRACTICE LAWSUIT?

A. GENERAL INFORMATION ABOUT MALPRACTICE LITIGATION

Malpractice generally refers to the defective or erroneous practices of healthcare professionals in medical practice while performing their professions, failure to fulfil the medical intervention or incomplete application of the required application. Medical malpractice is used not only for physician errors, but also for damages that occur as a result of an incorrect or erroneous intervention due to reasons such as inexperience, lack of knowledge or indifference of other health personnel working in the field of medicine, or due to negligence of duty.

Malpractice, which generally means “medical malpractice”, can be characterised as damage arising from medical intervention. In Article 13 of the Code of Professional Ethics of the Turkish Medical Association, malpractice is defined as “The harm to a patient due to lack of knowledge, inexperience or indifference is defined as “malpractice in medicine”…“.

Malpractice lawsuits are legal proceedings in which victims bring criminal proceedings against those responsible for damages that usually arise as a result of medical errors, or make claims for material and moral damages. In such cases, legal proceedings may be initiated in the event that doctors fail to perform the treatment correctly as a result of incorrect practices or lack of skill while performing their duties.

What is the Concept of Medical Standard?

Determining and determining whether the medical intervention applied to the patient is defective is of great importance in malpractice cases. This is a criterion used to determine whether the medical intervention applied to the patient complies with medical standards.

A physician is obliged to diagnose according to the requirements of the medical field and must refrain from treatments and diagnoses that are contrary to the rules of medicine. This is enshrined in law and states that the physician is obliged to follow and apply medical standards. One of the most fundamental rights of human beings, the right to life and the associated right to health, must be protected by the physician in accordance with medical standards.

The criterion that should be taken as a basis for determining the medical standard is the maximum care and attention that a physician can show in accordance with the health conditions of that country. Medical standard refers to the treatment methods accepted and generally applied at the stage of development of medical science.

How Does Malpractice (Physician Error) Occur?

Malpractice may arise as a result of an act committed intentionally or negligently (negligent behaviour) by a healthcare professional.

Malpractice Litigation as a Result of Physician’s Deliberate Mistake: Intent, in the sense of criminal law, is the realisation of a behaviour with the knowledge and intention of the elements in the legal definition of the crime. In this case, the physician’s behaviour will give rise to an indemnity obligation due to the “tortious act” liability regulated in Article 49 of the Turkish Code of Obligations in terms of legal liability, as well as the result of the intentional performance of the behaviour in terms of criminal law in terms of the physician will result in intentional (probable intent-direct intent) killing or injuring crimes.

Malpractice Litigation as a Result of Physician’s Negligence: In the event that the medical error occurs due to breach of the duty of care, it is said that the fault is in the nature of negligence. The action of the physician who does not provide attentive medical assistance in accordance with the treatment contract between the patient and the physician will cause legal liability for breach of contract. However, if the act results in injury or death, criminal liability will arise in terms of negligent injury/death.

At Which Stage of Treatment Can Malpractice Occur?

The health service process mainly consists of three phases. These are; diagnosis, treatment and post-treatment stages. Malpractice may occur in all three of these stages. For example;

Physician Error Occurring at the Diagnosis Stage

It is extremely important at this stage that the physician listens attentively to the patient’s complaints and fully understands the patient’s medical history. This is because the next steps, such as treatment and counselling, will be based on the information underlying the diagnosis. For example, obtaining information about the patient’s allergies before starting treatment is a critical step.

On the contrary, if treatment is started without asking about the patient’s allergies and an allergy reaction subsequently occurs, a malpractice action can be brought for the doctor’s negligence and fault. Furthermore, the doctor has a duty to inform the patient at the stage of diagnosis and to obtain the patient’s explicit consent to the treatment.

Physician Error Occurring During the Treatment Phase

Physician malpractice may also be part of a malpractice action. Based on the precedents of the Court of Cassation, the following examples may be the subject of a malpractice action: The doctor’s malpractice, forgetting a foreign object in the body during surgery, using the wrong medication or wrong needle, mixing the limb that needs to be intervened, applying treatment under non-sterile conditions and similar situations.

What is the Malpractice-Complication Distinction?  How to Determine Complication in Malpractice Cases?

Complications are undesirable situations that occur despite the full and timely provision of health care as required. For example, in a patient who does not recover after a rhinoplasty operation, not only doctor error can be mentioned, but also complications of non-recovery. The mere occurrence of an unfavourable outcome does not indicate a doctor’s error. Damages caused by complications are not sufficient to prove the existence of a doctor’s error. If the negative consequences experienced by the patient are caused by complications, the patient’s right to claim compensation will be limited.

However, if there is a doctor’s error, malpractice may be in question. As a result of medical malpractice, the physician has caused an unfavourable outcome for the patient. This adverse outcome may be a temporary health problem, or it may cause permanent damage, such as to muscles or nerves. Malpractice refers to the situation where the patient is harmed due to non-compliance with medical standards, delay or premature implementation of health care, inexperience, ignorance or indifference of health personnel.

In order for the patient to experience negative consequences as a result of the treatment and to be entitled to claim compensation, the doctor must be at fault. In medical malpractice cases, the existence of an intentional or negligent act must be proven in order to determine the legal liability of the healthcare personnel. Such a tort may also involve civil and criminal liability. In this case, the physician can be tried in both civil and criminal courts.

In which cases can complications be mentioned in malpractice lawsuits? Is the Physician Responsible for Complications?

Although the physician provides appropriate and timely health care as required by medical science, sometimes unfavourable situations may result in complications.

For example, if a gynaecologist causes the baby to have respiratory problems due to premature birth and subsequent complications, the doctor is not considered to be at fault. Even if the baby develops consequences such as 90% disability despite immediate intervention, no liability is attributed to the doctor.

It should not be forgotten that every medical intervention involves a certain level of risk. Therefore, despite the doctor’s best endeavours using all available means, negative consequences may occur, in which case no fault can be attributed to the doctor.

The speciality of a doctor providing family medicine services is clear. Therefore, he/she should not provide services such as treatment or surgery outside his/her area of expertise. It is important that the family doctor knows the limits of his/her responsibilities. If he/she provides services outside his/her area of expertise, he/she may face compensation and criminal cases.

What is Stabilisation? Can Malpractice Lawsuits be Filed as a Result of Stabilisation?

Stabilisation refers to the stabilisation or stabilisation of the patient’s state of health. This means correcting to a certain extent the medical problem that the patient suffered from and caused the patient to present to the emergency department, restoring body balance, stopping the progression of the disease, stabilising body functions and providing medical support to the patient until further intervention is needed, if necessary. Emergency service personnel are obliged to provide all medical services until medical stabilisation is achieved, regardless of the patient’s social security or other characteristics. In the event that the patient is referred or discharged without stabilisation, we have the right to claim compensation from the physician or responsible health personnel by filing a malpractice compensation lawsuit.

B. WHAT IS CIVIL AND CRIMINAL LIABILITY IN MALPRACTICE LITIGATION?

What is the Legal Nature of the Relationship between the Patient and the Physician in Malpractice Lawsuits?

If a malpractice lawsuit is filed based on a faulty medical intervention in a public hospital, the responsibility will belong to the administration. In order to provide public services, especially health services, the administration must make the necessary organisations, provide appropriate buildings and infrastructure and employ qualified personnel. If the administration fails to fulfil these obligations, compensation may be claimed by filing a “full judgement action” on the basis of “service defect”.

The liability of Private Hospitals or Health Institutions is generally evaluated within the scope of private law and arises within the framework of the “patient admission contract”. According to a definition accepted by the Court of Cassation, the patient admission contract is generally established between the patient and the hospital, not between the physician and the patient.

This type of contract can be established by the parties’ implied declaration of will, without being subject to any formal requirements. The contract may be partial or complete and its content may be freely determined by the patient and the hospital. For example, if a patient only agrees to be examined and does not agree to other procedures, the patient admission contract is partially established. This contract may include certain obligations on the part of the hospital and certain obligations on the part of the patient.

What is Criminal Liability for Malpractice (Medical Malpractice)?

In order to be able to talk about the criminal liability of doctors, first of all, the doctor must have committed an unlawful act that is accepted as an offence in the Turkish Penal Code.

Criminal proceedings arising from medical malpractice of doctors are based on Articles 85 and 89 of the Turkish Penal Code, depending on whether the consequences are death or injury. These articles regulate the offences of culpable injury and culpable homicide. When both offences are committed, fault is required for the offence to occur.

Medical malpractice occurs when a doctor fails to exercise the care and diligence required by the medical profession during medical practice. The criminal liability of a doctor for medical malpractice may be reflected as manslaughter or unintentional injury. Therefore, judgement will be made on the basis of different articles, depending on the outcome resulting from medical malpractice.

“Article 85 of the Penal Code”
(1) A person who causes the death of one person by negligence shall be sentenced to imprisonment from two to six years.
(2) If the act has caused the death of more than one person or the death of one or more persons and the injury of one or more persons, the person shall be sentenced to imprisonment from two to fifteen years.”

In Turkish criminal law, in order for an offence to exist, the material and moral elements of the offence must be completed. Therefore, the material element of the offence of causing death by negligence is that death has occurred. In cases where the death is caused by a doctor’s failure to exercise due care and attention, this constitutes the moral element of the offence. The punishment of a physician depends on the determination of the moral element of the offence, namely that the death occurred as a result of the failure to show the care and attention required by the medical profession. The penalty for the offence of negligent homicide includes imprisonment between two and six years in accordance with the legislation.

In the second provision of this Article, the qualified cases requiring aggravation of the penalty are specified. Accordingly, if the offence resulted in the death of more than one person or the injury of one or more persons, imprisonment of up to fifteen years may be imposed.

“TCK Article 89 –

(1) A person who, by negligence, inflicts pain on the body of another person or causes impairment of health or perception shall be sentenced to imprisonment from three months to one year or to a judicial fine.

The material element of this type of offence is the injury to the patient. The fact that the injury occurs due to the lack of attention and care required by the medical profession constitutes the moral element of the offence.

The offence regulated by the article, except for conscious negligence, is a complaint-based offence. Complaint-based prosecution of an offence means that the victim must file a complaint in order to initiate an investigation against the physician. The penalty foreseen in the law for this type of offence is imprisonment from three months to one year or a judicial fine.

“TCK Article 53/6 –
(…) In case of conviction for a negligent offence committed due to violation of the obligation of attention and care required by a certain profession or art or traffic order, it may be decided to prohibit the practice of this profession or art or to revoke the driving licence for a period of not less than three months and not more than three years. The prohibition and revocation shall enter into force upon the finalisation of the judgement and the period shall begin to run from the execution of the sentence in its entirety…”

In the event of an offence under the Regulation, the physician may be punished with a ban from professional activity. This penalty may last from three months to three years.

Legal Liability Due to Wrongful Medical Practice in Malpractice Cases (Malpractice Compensation Case)

Compensation in a malpractice lawsuit filed as a result of malpractice; It arises as a result of non-compliance with medical standards in any of the diagnosis, treatment and care stages. These medical standards are generally recognised and accepted practices in medical science.

The patient has the right to file a claim for compensation in a malpractice lawsuit based on contractual or tort-based legal grounds, if necessary. It is important to note that, although the legal liability of the doctor is based on fault, due to the nature of the agency relationship, the doctor is held responsible for all damages arising from the slightest fault. If the doctor performs his/her medical practices without fault, his/her liability is not in question.

In aesthetic operations, the existence of defective performance should be accepted in cases where the procedure does not have the qualifications specified in the contract, does not comply with the expectations of the business owner or, if necessary, lacks some of the necessary qualifications. In addition, it should determine and apply the appropriate treatment method, and inform and warn the plaintiff that the treatment applied may cause negative consequences even in exceptional cases. If the claimant has given his consent, the contractor is obliged to complete and deliver the work in accordance with the objectives expected by the claimant.

So what can you claim as compensation in a malpractice lawsuit in case of malpractice? In other words, what can be requested and demanded in a malpractice lawsuit?

In case the patient suffers physical damage as a result of malpractice, the main situations in which financial compensation can be claimed are as follows;

• Treatment costs include all expenses incurred to restore the patient’s health. These expenses include examination, tests, diagnosis, treatment, surgery, aesthetic surgery, hospital expenses, radiology, medicines, prostheses, mobility devices, corsets, transport costs and all similar expenses.
• Loss of earnings is the temporary loss of earning capacity that deprives the patient of the earnings that he or she could have earned from the date of loss of earning capacity until the conclusion of the case. However, how is the loss of earning capacity determined? A health problem that causes loss of physical and mental efficiency and organ loss may naturally create a difference in the work done by the person. For example, the inability of a film actor who has a permanent scar on his face due to a physician’s error to continue his profession may be subject to a malpractice compensation case at the point of loss of earnings.
• Expenses incurred due to the death of the deceased patient can also be compensated. The heirs of the patient can be compensated for expenses such as funeral ceremony, funeral expenses, religious rituals, death announcement, cemetery expenses from the responsible party with a malpractice compensation lawsuit.

However, the fact that the faulty medical practice due to malpractice has caused an undesirable result is deemed sufficient for the claim for non-pecuniary damages. Responsible health personnel or institution;

• In return for the grief, sorrow and pain of the patient and his relatives,
• In the event of the death of the patient, in return for this deprivation of the dependents of the deceased patient

non-pecuniary damages may be claimed.

C. HOW DOES THE JUDICIAL LITIGATION PROCESS WORK IN MALPRACTICE CASES?

How Does the Mediation Process Work in Malpractice Cases?

If the malpractice lawsuit is filed directly against the physician or hospital, the mediation process, which is mandatory in consumer disputes, must be completed, since the Consumer Court will be in charge.

The minutes of the mediation are legally a judgement and, once signed, they are as valid as a court judgement. For example, let’s assume that the parties have agreed in the mediation minutes to pay compensation to the patient. If the compensation payments are not realised in due time, you will be able to initiate enforcement proceedings through your lawyer. If the parties do not agree, litigation processes will be initiated.

In Which Situations Are Malpractice Lawsuits Filed?

• Torts arising from the medical intervention of the physician and which are not complications,
• Incomplete or incorrect consent of the patient,
• Incomplete information to the patient,
• Lack of the patient’s consent to medical intervention,
• Any damage to the patient’s body integrity is sufficient to file a malpractice lawsuit.

In practice, we regret to see that the number of medical errors (malpractice) arising from aesthetic operations has increased considerably. Patients are faced with sad situations such as leaving the operating theatres where they entered rhinoplasty surgery with decay in their noses, being discharged with a double belly button as a result of liposuction operations, or no longer being able to perform hair transplantation due to damage in the donor area as a result of failed hair transplantation operations.

What is the Statute of Limitations for Malpractice Lawsuits? At what time should a malpractice lawsuit be filed?

The nature of the relationship between the doctor and the patient may vary over time. If the patient-doctor relationship is based on a contract, claims arising from the contract may be subject to a 5-year statute of limitations. On the other hand, if the patient-doctor relationship is not based on a contract, tort provisions apply and the time to file a lawsuit is limited to 2 years. However, in malpractice cases, the statute of limitations may be 10 years from the date of the act, taking into account the time it takes to determine the defective act.

Here, the contractual relationship between the patient and the doctor means that the treatment is carried out in accordance with a contract. For example, since there is no contract in the intervention to be applied to you in the emergency room, the possible malpractice situation here will be evaluated under the provisions of tort.

What is Required to File a Malpractice Lawsuit?

In order to file a malpractice lawsuit, you must have a petition including your statement explaining your medical history. However, adding the necessary documents to your petition as evidence will strengthen your petition. In this direction, the documents required to file a malpractice lawsuit are as follows:

• A complete statement of your treatment history
• All medical reports and documents related to your treatment process
• Contracts you have signed with the physician or hospital
• Documents of your payments for treatment
• Written interviews with the hospital or physician (whatsapp, e-mail, etc.)

In addition to all these, a physician error report must be prepared by an expert appointed by the Forensic Medicine Institution. This report must be prepared prior to any repair treatment and you must be present in Turkey during the expert examination process.

You can get counselling from us for the preparation and control of the lawsuit petition and its annexes or for requesting an expert examination.

How Does Malpractice Litigation Process Work?

Two types of malpractice lawsuits can be filed as a result of physician error situations you encounter. The first of these is the malpractice compensation lawsuit that can be filed to compensate for the deprivation and losses you have experienced. In another case, if the physician’s error you encounter constitutes a crime within the scope of the Turkish Penal Code, it is a malpractice criminal case that will be opened as a result of a criminal complaint to the prosecutor’s office.

In these cases, the judge will examine whether the situation is a complication, whether the medical standard has been violated, whether the physician’s error constitutes a crime and will decide accordingly. At this point, the evidence you present is very important. The court may request an expert examination to reach a conclusion, or it is also possible for you or your lawyer to request an expert examination at the point of evidence determination before the lawsuit is filed. This is very important for the determination of evidence before any repair treatment.

What is the Expert Review Process in Malpractice Litigation?

In malpractice lawsuits, an expert examination report is requested as evidence in order to reach a conclusion. This request can be made by the judge during the litigation process, or it can be requested by you during the evidence determination phase.

The preparation of the “physician error report” to be prepared by the experts as soon as possible after the malpractice situation occurs and before any repair treatment takes place will ensure that the report is healthier and will be accepted as a stronger evidence for the court.

Where to Request Expertise Due to Physician Error? Who is an Expert in Malpractice Lawsuits?

Therefore, as soon as possible after the physician’s error occurs, you can request an expert examination for evidence determination from the court where the lawsuit will be filed or the Civil Court of Peace where you live. Failure to do so is not an obstacle for the lawsuit process, but doing so will help the lawsuit to be concluded against you. You must be in Turkey during the expert examination

What should be done in case of objection to the expert report in a malpractice case?

You can object to the expert report within 2 weeks after the expert report is notified to you due to the fact that the expert report requested in the malpractice lawsuit is made without merit, made by unauthorised and uninformed persons or is far from the truth for any reason.

You can declare your objection with a petition of objection to an expert report that you will write to the court where your malpractice case is heard.

How Long Does Malpractice Litigation Take?

According to the target period application implemented by the Ministry of Justice, the period foreseen for malpractice lawsuits is 300 days. At this point, the case follow-up to be carried out by your lawyer is very important for the finalisation time of the case.

What is the Malpractice Compensation Amount? How to Calculate the Doctor Error Compensation Amount?

There is no directly determined amount of compensation in malpractice cases. The amount of compensation is determined by the judge after examining the concrete case in line with the evidence. This amount should be at a level that can eliminate the victimisation of the patient and his/her relatives to the maximum extent.

For example, a child who loses his/her father as a result of a physician’s error will receive moral compensation for the pain, suffering and sorrow he/she has experienced, as well as the monetary victimisation he/she will experience due to the absence of his/her father will be calculated by taking into account his/her previous lives and other factors, and it will be decided to be paid as financial compensation.

Is a Lawyer Needed for Malpractice Lawsuits?

Professional help is of course necessary in solving the problems that medical errors can create. For such cases, an experienced malpractice lawyer will continue to represent his client in the processes. Due to the ability to understand the legal responsibilities of both physicians and hospitals, the ability to follow the updates in the legislation, and the deficiencies in both legal and medical fields, we can say that it is necessary to apply to a lawyer specialised in malpractice cases for the healthy progress of the process.

Güneş & Güneş Law Office, as an experienced and expert health law lawyer and malpractice litigation lawyer in all provinces of Turkey, especially in Istanbul and Antalya, has been providing legal consultancy and advocacy services to our individual and corporate clients on all legal issues related to health law such as patient rights, physician errors, professional liability of physicians, decisions of the Supreme Health Council, legal aspects of organ transplantation, responsibility of private health institutions in malpractice cases.

As Güneş & Güneş Law Office, with our 25 years of experience, we strive to provide the best legal service for our clients’ malpractice problems and lawsuits, to defend your rights in the best way and to achieve successful results.

For a client who has received faulty treatment or service (malpractice) from a doctor or health institution, we can send a letter to the doctor or health institution;

• to punish them for their malpractice or treatment,
• by filing a lawsuit,
• We can demand and sue for the treatment and repair fees to be paid for new treatment, new medical applications, procedures or new operations that need to be done for you to relax, regain your aesthetic appearance and health from the doctor or health institution that has made the wrong application or treatment,
• In order to alleviate and compensate the distress, pain and sorrow experienced by our clients, their spouses, children, mothers and fathers due to their malpractice or treatment, we may file a lawsuit for moral compensation against the doctor or health institution that has committed malpractice or treatment and claim moral compensation.

• or due to the new treatment or medical repair treatment or application that will be or has been carried out again, we can file a lawsuit for compensation for loss of earnings against the treating doctor or health institution and demand compensation for loss of earnings.
• We can complain to the Ministry of Health and the professional organisation, the Turkish Medical Association, for the cancellation of permits and licences and professional disciplinary investigations against the physician and the health clinic due to their malpractice or treatment, and we can apply for an investigation to be initiated against them,

We can fulfil all your business, transactions, demands and rights on behalf of and on behalf of our clients and we can open malpractice lawsuits and make applications to obtain their rights.

You can contact us via Whatsapp message line to get service from our lawyers who have experience in malpractice cases to obtain your rights, to get information about all litigation processes and fees.