MEDICAL MALPRACTICE IN TURKISH LAW AND ITS LEGAL CONSEQUENCES
MEDICAL MALPRACTICE IN TURKISH LAW AND ITS LEGAL CONSEQUENCES
- What is medical malpractice or medical error?
Within the scope of Turkish law, medical malpractice or medical fault is a situation in which the patient suffers damage in the event of a violation of medical standards in various ways in any of the medical practice processes such as diagnosis, treatment and organizational obligations of physicians and other healthcare personnel.
Pursuant to Article 13 of the Turkish Medical Association Code of Professional Ethics for Physicians, the concept of malpractice is defined as “harm to the patient due to ignorance, inexperience or error of the physician“.
The person causing medical malpractice can be health personnel, doctor, dentist, nurse, midwife, emergency medical technician and other health personnel.
- In what ways can medical malpractice occur?
Liability in case of misdiagnosis
The physician’s fault that causes medical malpractice usually occurs in the form of misdiagnosis of the disease.
In this case, it is possible to file a criminal complaint against the doctor and file a lawsuit for compensation on the grounds of doctor error due to misdiagnosis.
Liability in case of Mistreatment
In this case, the physician may have applied the wrong treatment or applied the right treatment in the wrong way. In the same way as with misdiagnosis, a criminal complaint and compensation lawsuit will be filed and the legal process will be carried out.
Liability for Compensation in Cases such as Wrong Aesthetic Operation and Dental Treatment
The scope of liability for aesthetic operations, dental treatment procedures will vary according to the procedures performed for aesthetic purposes and within the scope of treatment.
Since the medical interventions performed for aesthetic purposes will no longer be an acting relationship between the physician and the patient, but will evolve into a work contract relationship, the physician will also be committed to the result that will arise here. Therefore, the physician must also undertake and realize the result in addition to the duty of care, as in other responsibilities. Otherwise, the physician will be held legally liable as in other cases.
- Condition Eliminating Physician Liability: Complication
A medical complication is the occurrence of unintended consequences of medical procedures performed by a physician or healthcare professional under lawful conditions, despite the fulfillment of the duty of care and the obligation to inform the patient about the procedure and its consequences. The difference between complication and malpractice relates to whether the health care professional concerned fulfilled his/her obligations within the scope of his/her duties and responsibilities.
The distinction of whether the result is a medical error or a complication will be determined by the expert experts to be appointed by the courts or as a result of the report to be prepared by the Forensic Medicine Institute.
- Doctor’s Duty of Diligence
While the health worker is performing his/her activity, the duty of care normally expected from a physician is responsible for preventive medicine activities, diagnosis, treatment stages and post-treatment control of the patient. In this process, he/she must fulfill his/her duty as a physician with the correct diagnosis and treatment method for the patient’s recovery. By evaluating all possibilities and taking the necessary and expected precautions, he/she should exhibit behaviors in accordance with all the necessary duty of care.
- Legal Liability Aspect
It is possible to claim the following items of pecuniary and non-pecuniary damages under the Turkish Code of Obligations in accordance with the provisions of tort, tort without attorney, contract of attorney and contract of work within the scope of the Turkish Code of Obligations.
- Court and Party to which the Case will Be Filed
If the institution where the malpractice medical practice is performed is a private hospital or a university hospital, a lawsuit will be filed against the hospital and the doctor who performed the malpractice in the consumer courts in the judicial jurisdiction.
If it is a state hospital or a foundation hospital that performs the medical practice, a lawsuit will have to be filed in the administrative court against the administration, not directly against the doctor. In addition, as a result of malpractice in public hospitals, the lawsuit should be filed against the administration, not the physician, if there is no malpractice outside of medicine.
It should also be noted that public and non-foundation hospitals and clinics are jointly and severally liable together with the doctor.
- Material – Moral Compensation in the Scope of Medical Malpractice
In the event of undesirable consequences as a result of careless, indifferent and uninformed application of medical intervention, material and moral compensation may be claimed. This claim may be made by the injured patient himself/herself or by those who are deprived of the patient’s support or relatives of the patient who are negatively affected morally by the patient’s damage.
Types of Non-pecuniary and pecuniary compensation that can be claimed :
- Loss of earnings and treatment expenses
- Losses due to the shaking of the economic future
- Non-pecuniary compensation for psychological damage caused by serious injury, loss of limb, serious illness, depression, depression, etc.
- If the working power has decreased, the compensation to be determined according to the rate of loss of labor
In addition if it results in the death of the patient;;
- funeral expenses
- Compensation for deprivation of support for those deprived of the support of the deceased
- It consists of non-pecuniary compensation to be requested by the relatives of the deceased.
Time Limit Issue in Medical Malpractice
In cases such as doctor’s fault, medical staff fault, medical fault, misdiagnosis, wrong surgery, the statute of limitations is evaluated in two ways.
If the undesirable result caused by medical error (error of healthcare personnel) has occurred due to medical practices in public hospitals, it must be filed as a full judicial action in the administrative court within 1 year after the undesirable result is learned.
If there is a statute of limitations for unintended consequences resulting from practices in private hospitals and university hospitals, a lawsuit will have to be filed in the consumer court in the judicial jurisdiction within 5 years after the malpractice is learned.
One of the points that should not be forgotten is that there must be a causal link between the medical practices performed by healthcare professionals and the undesirable result, i.e. malpractice. If the undesirable results that occur in the patient do not occur as a result of the doctor’s or healthcare professional’s behavior contrary to their professional obligations such as ignorance, carelessness, carelessness, etc., it will not be possible to go to medical malpractice or physician’s responsibility here, so getting expert consultancy for such issues and all other details will ensure that the process proceeds in a healthy way.
Atty. A.Vahit KAYA Atty. Jale KESİN
Barrister/Solicitor Barrister/Solicitor
LLM, MBA LLB, LLM