The basic exception to the right to inviolability of bodily integrity, which is guaranteed by our Constitution, is medical interventions. Doctors, due to the nature of their profession, can perform medical interventions that involve some risks for the patient, in order for the patient to regain his health. However, these risks can occur as an inevitable result, even if all the necessary care and attention is paid. In medical applications with a very high risk level, the medical equivalent of the permissible risk is “Complication”; imprudence and carelessness are considered as “Malpractice”. In this case, the person who has suffered damage due to the doctor’s error may file a lawsuit for material and moral compensation against the doctor and the health institution where the medical intervention took place, and demand the compensation of the damage suffered.
Most patient-doctor relationships in practice are contractual. According to our legal system, this contract is considered to be a kind of mandate contract. In this case, the provisions of the Turkish Code of Obligations pertaining to the power of attorney agreement will be applied in the recovery of the patient’s damage caused by malpractice. On the other hand, in the proceedings regarding patient-doctor relations that are not based on a contract, tort provisions will be applied.
Malpractice, in general terms, is the situation where an injury or damage is caused as a result of misconduct or negligence of duty in the medical practices of doctors. The following definition is included in the 13th article of the Turkish Medical Association’s Code of Ethics for Medicine, titled “Malpractice of Medicine”:
“When a patient suffers harm due to ignorance, inexperience, or indifference, it is “bad practice of medicine.”
In Turkish legal theory, this concept is named in different ways such as “Medical Malpractice”, “Medical Error”, “Medical Practice Errors”, “Bad Practice of Medicine”.
On the other hand, if the patient is harmed as a result of medical practice, it is very important to correctly distinguish between malpractice and complications in terms of determining whether the doctor can be held responsible. Regarding the subject, a detailed explanation is given in the 2nd article of the “Mal praktice” Statement of the World Medical Association:
“Medical malpractice should be distinguished from situations that occur during medical care and treatment and that are not the fault of the physician.
Therefore, in cases of malpractice expressed as medical malpractice, the doctor may be held to civil and/or criminal liability. However, it is accepted that the doctor does not have any responsibility in cases of complications in which the patient’s informed consent is obtained in accordance with the procedure.
If malpractice situations occur in which doctors cause harm to the patient as a result of their mistakes, negligence or faults during their professional practices, criminal liability may arise. As explained in our article “Criminal Case Due to Physician Error (Malpractice)”, doctors are responsible for unlawful acts that they commit due to their negligent or negligent acts in accordance with the provisions of the Turkish Penal Code.
On the other hand, the patient and his relatives, if any, who are harmed by the doctor’s interventions constituting malpractice, may request compensation for the material and moral damage they have suffered due to malpractice. It can be mentioned here that the doctor has legal responsibility. The doctor may be held liable to compensate for the damages he has caused from his personal property. In this respect, compensation cases are substituted for material and moral damages arising from malpractice, and in practice, the legal responsibility of the doctor is also called “compensation liability”.
The issue of eliminating the damage caused by the faulty behavior of the doctor while providing health care is within the scope of his legal responsibility, and the relationship between the doctor and the patient is based on the power of attorney agreement, according to the prevailing view in practice. Therefore, in claims for compensation arising from the patient-doctor relationship, the provisions of the law of obligations will be applicable. However, in cases where there is no contractual relationship between the doctor and the patient, the responsibility of the doctor is evaluated according to the tort provisions.
In the event that the patient is harmed as a result of the unlawful medical intervention of the doctor, certain conditions must be met in order for compensation to be awarded. These conditions are as follows:
• The doctor must have an unlawful behavior during medical practice. This behavior may be in the form of a breach of contract, as well as in the form of tortious act or acting without a power of attorney.
• As a result of the medical intervention, harm must have occurred to the patient.
• The damage must have been caused by the doctor’s fault.
• Finally, there must be a cause-effect relationship, which is also called a causal link, between the defect and the damage to the patient. In other words, the damage must have been caused by the doctor’s faulty act.
If these four elements occur together, the doctor’s liability for compensation may come to the fore. On the other hand, if even one of the four elements is missing, compensation will not be awarded to the doctor.
The point that should be emphasized here is the concept of fault. Because, if there is no fault, it is not possible to talk about the responsibility of the doctor. For example, since the doctor’s fault cannot be mentioned due to a result that is impossible to prevent, the responsibility of the doctor in such a case will not be on the agenda. In terms of physicians, the allegation of fault should be handled with the criteria of “compliance with medical necessity” and this issue should be especially emphasized in the defense. At this point, an evaluation will be made by taking into account the knowledge, professional ability, experience, physical and intellectual power that an average doctor should have. It will be checked whether the doctor in the concrete case deviates from these criteria, if there is a deviation, this will be considered as a defect.
Proving the fault is as important as the concept of fault in the lawsuits filed for the compensation liability of the doctor. If the relationship between the doctor and the patient is based on a contractual relationship, it is assumed that the doctor is at fault and the patient is only obliged to prove that there is a relationship between the damage suffered and the breach of the contract. If the relationship between the doctor and the patient is not based on a contract, the patient must also prove the doctor’s fault, since the relevant intervention will be considered a tort. Therefore, the source of the relationship between the patient and the doctor leads to quite different results in terms of the subject of proof. Therefore, it is necessary to make a careful determination of the defect.
The responsibility of the doctor will come to the fore in cases where the doctor does not perform the standard and / or current practice during the medical intervention, the patient is damaged due to lack of skill or carelessness. The patient, who is faced with such situations and is harmed, has the right to file a lawsuit for compensation for the loss. Accordingly, if the patient proves the existence of the damage, the doctor’s fault, and the causal link between the fault and the damage, he will be able to claim material and non-pecuniary damages.
In compensation cases substituted within the scope of medical malpractice action, it is up to the patient (plaintiff) to prove the damage. However, if it is not possible to determine the true amount of the damage, the judge will determine the damage using his discretion.
If the patient dies as a result of medical malpractice, burial expenses, if the death did not occur immediately, treatment expenses and damages arising from not working can be claimed. Persons who receive continuous and regular assistance from the deceased may claim compensation for deprivation of support if the assistance would continue according to the circumstances if the death did not occur.
In the event that the patient suffers physical damage as a result of medical malpractice, damages arising from the loss of treatment costs and the loss of working power and the deterioration of the economic future may be claimed.
For moral harm, it is sufficient to have an undesirable situation in the person’s health. In the provision of the article regarding the moral compensation and the scope of the damage caused by the act of medical malpractice, it is regulated that the family of the patient can also claim non-pecuniary compensation in the event of his death. In the event that the patient or his family suffers pain, suffering and sorrow due to faulty medical intervention, it is possible to demand a suitable amount of money as moral compensation.