MALPRACTICE

THE DEFINITION OF THE TERM ‘’MALPRACTICE’’

In Turkish Law, the word “malpractice” is commonly used for “Medical Malpractice”. The term indicates the medical errors caused by the treatment methods that the medical professional has applied.

Although bodily immunity is protected in the Turkish Constitutional Law, medical interventions present an exception. Doctors may perform risky interventions to restore the patient’s health. This risk, which is allowed in highly risky medical practices, is called as complication. If a problem occurs as a result of the negligence, that negligent action will be called as ”malpractice”. The relationship between the doctor and the patient is contractual in practice. There is a predominant opinion in the doctrine that the type of this contract is an contract of mandate.

The right to be protected is considered as a part of the right to live. Medical malpractice is defined as the failure to complete the medical intervention as intended. If the patient misdiagnosed and recieved a false treatment, there will be legal responsibility for the doctor to reimburse the damages.  In addition to responsibility to reimburse both material and moral damages, the doctor may face with criminal charges according to Turkish Criminal Code. In addition, if the medical standards are applied correctly and completely, the medical professionals will not be responsible for the complications that may occur.

The term malpractice is defined both from national and international law perspective. The most important regulation in this subject is the European Biomedicine Convention. According to the Article 4 of the European Biomedicine Convention: “Every intervention in the field of health, including research, must be carried out in accordance with relevant professional obligations and standards.” Turkiye is also one of the states that signed this convention.

INSTANCES OF MEDICAL MALPRACTICE

Medical malpractice may occur by misdiagnosis, delayed diagnosis, surgical errors, failure to treat, birth injuries, prescription errors, anesthesia errors and negligence in general. Majority of the malpractice cases occur as a result of aesthetic surgeries. The most preferred aesthetic surgeries that caused malpractice are; hair transplantation, dental aesthetics, implant, eye aesthetics, breast aesthetics, tummy tuck surgery, nose aesthetics, ear aesthetics, facial bone aesthetics, liposuction, facelift, body aesthetics, botox, laser treatments

THE LITIGATION OF MALPRACTICE

The party, that has suffered physical or moral damage from medical malpractice, has right to file a lawsuit. Turkish Code of Obligations (TCO) consider medical operations as a type of contract which makes doctors liable if they do not fulfill their liability of care. However, the doctor must be at fault, meaning the result of the operation was directly arised from his/her actions.

Accordingly, if the patient proves the existence of damage, the fault of the doctor and the causality between them, they can file a lawsuit for compensation.

If the patient is a minor or under legal disability, guardians may file a lawsuit. If the patient lost their life, inheritors may also file for lawsuit.

HOW TO CLAIM FOR DAMAGES DUE TO MALPRACTICE?

To claim compensation for the damages due to malpractice, the patient must prove the existence of the damage, the fault/negligence of the doctor and the causality between them. The burden of proof belongs to the patient. However, if it is not possible to determine the actual amount of the damage, it will be on judge’s discretion.

The competent court for the malpractice cases differs depending on whether the institution is  public or private.

Additionally, the lawsuit should be filed against the institution, rather than directly against the doctors.

You can sue a clinic in Turkey if the clinic has performed medical malpractice. The litigation elements may vary depending on the type of hospital. If the institution is a private hospital or a university hospital, where the malpractice occurred, a lawsuit will be filed against the hospital and the doctor who performed the malpractice. In consumer disputes, mediation is a requirement before filing a lawsuit. Since disputes arising from plastic surgery are also included in consumer disputes, mediation is also a requirement in malpractice cases.

If it is a state hospital that performed the malpractice, a lawsuit will have to be filed in the administrative court against the administration not directly against the doctor.

It should be also noted that public and private institutions and clinics are jointly and severally liable together with the doctor.

STATUTE OF LIMITATIONS

If the undesirable result has occurred due to a faulty medical practice in public hospitals, the claim must be filed as a full judicial action in the administrative court within 1 year after the undesirable result is found out. If it occured due to a practice in private hospitals, the statute of limitations will be 5 years. At this stage the lawsuit must be filed in the Consumer Court in 5 years after the malpractice has learned.

If the patient had a medical operation in a public hospital, all the claims regarding malpractices must be filed in the administrative court, since all the medical professionals and doctors are employed by the state. In this case, the statute of limitations is 1 year and in any case, 5 years from the date when the operation took place.

If the patient had a cosmetic surgery in a private hospital or clinic, the contract between both parties will be considered as “the Contract of Work” and will be subject to a limitation of 5 years. But If the doctor is gravely negligent in the medical procedure, the statute of limitations is 20 years, regardless of the nature of the procedure.

Malpractice actions can be described as tort or a breach of contract. When these actions are described as tort, the statute of limitations will be 2 years. This limitation will be start from the time the damage was realised and in any case that will be 10 years. When there is a contractual relationship between the medical professional and the patient, there are two possibilities to describe the contract; if the contract is about an usual medical operation, this contract is the contract of mandate. If this is an aesthetic operation and promises a certain result, this contract is the contract of work. In both situation the contract will be subject to a limitation of 5 years. But if the doctor is gravely negligent in the medical procedure, the statute of limitations will be 20 years, regardless of the nature of the procedure.

If a criminal case is to be filed, the statute of limitations is 10 years from the date the act was committed. There must be a link between medical practice and the damage. If such link doesn’t exist, it is impossible to file a malpractice case therefore, consulting a medical expert for such cases will ensure that the process proceeds in a healthy way.

One of the points that should not be forgotten is that there must be a causal link between the medical practices performed by medical professionals results as malpractice and the undesirable result. If the undesirable results that occur are not results of the doctor’s or medical professional’s fault or negligence, it will not be possible to claim based on malpractice or medical professional’s responsibility.

Due to the specificity of these types of cases, getting consultancy in these cases will be very effective in the correct progress of the process.

MALPRACTICE IN THE CONTEXT OF HUMAN RIGHTS

Aesthetic medical tourism is at least partially within the scope of the right to health. If the human rights problems encountered during the health tourism process are examined, It would be more acceptable in practical terms to interpret these situations based on the events that have been the subject of various control bodies in international human rights law. In the application of human rights law health-related issues are a social right and its jurisprudence covers many right.

Moreover, many rights included in the European Convention on Human Rights (ECHR) are related to health. It can find application areas to a certain extent in certain issues, in the European Court of Human Rights, which is responsible for monitoring whether rights are respected, The Court (ECtHR) has set certain standards in many health-related issues has developed., As a result of benefiting from the ECtHR jurisprudence in human rights issues arising from health tourism, it allows the plaintiff to file a lawsuit before the ECHR against the country where the operation was performed.

Thus, the dilemma of whether the patient can file a lawsuit in her own country or in the country where the surgery was performed will be resolved. And in this way again, If she files a lawsuit in her own country and wins, the problem regarding whether recognition and enforcement will be made in the country where the operation took place will be eliminated.

Atty. A.Vahit KAYA                          Atty. Beste EVIN                             Atty. Arda AÇIKALIN

Barrister/Solicitor                           Barrister/Solicitor                         Solicitor

LLM, MBA                                            LLB, LLM                                             LLB

info@kayapartner.com                 v.kaya@kayapartner.com            beste@kayapartner.com