What is Malpractice?
Malpractice, in its literal sense, means a doctor's error. A malpractice lawsuit can be filed if an intervention by a physician or healthcare institution leads to negative consequences due to the physician's or healthcare worker's ignorance, inexperience, or negligence. By its nature, a malpractice lawsuit is a compensation lawsuit.
Can a Criminal Lawsuit Also Be Filed as a Result of Malpractice?
If the incorrect application by a physician or healthcare worker constitutes a criminal element, this situation can also be subject to a criminal investigation. In practice, this often manifests as negligent wounding or killing. As per Article 22 of the Turkish Penal Code, negligence involves performing an act without foreseeing its legally defined consequences due to a failure to fulfill the duty of care and attention. However, in practice, if a complaint is made for a criminal investigation and subsequently a compensation lawsuit is filed, some courts handling the compensation case wait for the outcome of the prosecution's investigation. This situation can lead to prolonged compensation lawsuits and make access to justice more difficult. Since a malpractice lawsuit involves comprehensive and technical elements, having an attorney well-versed in the field of malpractice overseeing the case can be very beneficial to avoid losing rights.
Medical Malpractice Lawsuit
Medical malpractice can generally manifest in three stages: during the diagnosis of the illness, the applied treatment and medical intervention phase, and the subsequent care and supervision stage as an error. The compensation due to incorrect medical intervention is paid to the patient. However, if the patient dies as a result of the intervention, the compensation is paid to the patient's relatives.
Material and Moral Compensation in Malpractice Lawsuits
The patient can claim material and moral compensation for the actions they have suffered. Materially, all losses such as hospital expenses, operation costs, expenses during the duration of treatment, loss of earnings during this period, and disability loss due to loss of workforce can be subject to material compensation. The claim for moral compensation can vary depending on the concrete case. Factors such as the pain experienced by the person during this process, the duration of the error, psychological distress experienced, and the impact of the intervention and error on their future life are important.
In a malpractice lawsuit, the burden of proof regarding fault lies with the patient. That is, the patient must prove the error of the physician or healthcare institution. As per Article 50 of the Turkish Code of Obligations, the injured party must prove the damage and the fault of the damager. Therefore, it is a technically challenging lawsuit from the patient's perspective.
Legal Perspective on Physician's Liability for Compensation
Medical malpractice lawsuits are legally based on torts, breach of contract, unauthorized management of affairs, or service faults. When filing a medical malpractice lawsuit against the administration (state hospitals and official health institutions), patients rely on service faults; when suing private hospitals, physicians, and private clinics, they base their claims on one of the reasons of tort, breach of contract, or unauthorized management of affairs. These compensation lawsuits take different legal bases depending on the nature of the medical practice. Lawsuits are filed based on these reasons:
1) Malpractice Lawsuit Due to Tort:
A tort is damage caused by a person's unlawful and faulty action outside of a contract to another person. All interventions by a doctor on the human body that are contrary to medical standards can be considered a tort. Tort liability arises from the perpetrator's fault causing harm. In exceptional cases where there is no contract between the physician and the patient, the physician can only be held responsible for their torts. For example, a doctor who refuses to see a patient in the emergency room.
2) Malpractice Lawsuit Due to Breach of Contract:
Except in emergencies and exceptional cases, a contract outlining the scope of the treatment to be performed must be established. Even if a contract is established, the patient has the right to choose to file a lawsuit for compensation based on either tort or breach of contract. Two types of contracts can be established between a patient and a physician.
a) Agency Contract:
An agency contract is an agreement where one person authorizes another to act on their behalf and account for certain tasks. This contract allows the agent, known as the attorney-in-fact, to perform specific transactions on behalf of the principal. The doctor/patient relationship is also considered under the provisions of the agency contract. According to the provisions of the agency contract, the patient is the principal, and the physician is the agent who will perform the medical intervention. Although the agent (physician) is not committed to a positive outcome, they are required to demonstrate the care and attention expected in the diagnosis, application, and treatment processes. They are responsible for the damages arising from any deficiency or mistake shown during the process, even if they are not responsible for the lack of a positive result.
b) Work Contract:
A work contract is an agreement where the contractor undertakes to create a work, and the employer agrees to pay a fee in return. Medical practices aimed at creating a work in the human body are legally considered work contracts. It should be noted that all interventions where a result is guaranteed are work contracts. For instance, all types of prostheses inserted into the body, laser hair removal, beauty treatments, cosmetic surgeries, etc., are considered under work contracts. A malpractice lawsuit can be filed against the physician based on the provisions of the work contract if the physician fails to produce the promised result. The Supreme Court often qualifies cosmetic interventions as work contracts. It has explicitly emphasized that in cosmetic interventions, the work must not only be in accordance with the rules of science and art but also meet the expectations of the patient, the employer. The patient can request certain qualities in the work to be produced. If the created work fails to meet the patient's expectations, the balance of benefit in the contract is disrupted against the patient. In this case, the patient has the right to ask for a reduction in the price in proportion to the defect, or for the work to be repaired free of charge, provided it does not require excessive expense, with all costs borne by the contractor.
3. Provisions of Acting Without Authority
Acting without authority refers to interventions made without establishing an agency relationship. It occurs when a doctor performs a medical procedure without the knowledge and consent of the patient. Generally, emergency interventions performed without the consent of the patient, who may be unconscious or not in a sound state of mind, are evaluated under these contract provisions. Differently, provisions of acting without authority also apply in situations where a doctor needs to extend the surgery during the operation. A doctor who acts without authority is liable for compensation for any negligence against the patient.
4. Service Fault of Public Hospitals
All official health institutions fall under this scope. State hospitals, family health centers, community health centers, state university hospitals, research hospitals, psychiatric and neurological hospitals, etc., are included in this category. Although malpractice incurs the same legal responsibility in both private and public institutions, they differ in terms of the competent court. Additionally, the liability of official health institutions is based on service fault in administrative law. The administration is responsible for providing public services in buildings and facilities equipped with all necessary tools and equipment, and with staff suitable for the nature of the service.
A patient can file a malpractice compensation lawsuit based on either contract or tort legal grounds, provided the conditions are met. For a doctor to be held liable under contracts other than a contract for work, it is essential that their fault is proven. In contracts for work, fault arises from the failure to achieve the promised result.
Stages of Determining a Doctor's Fault in Malpractice Cases
In a malpractice lawsuit, the court initially appoints the Forensic Medicine Institute as an expert. If a second expert opinion is needed, the court can appoint a three-member expert committee consisting of specialists from university research hospitals. The court asks this expert committee to prepare a report on whether the patient was sufficiently informed and consent was properly obtained by the doctor and healthcare institution, whether the intended result of each procedure performed on the patient was achieved, and whether the procedures carried out by the doctor and healthcare institution are acceptable according to the principles of medical science and professional ethics. Three stages for uncovering the doctor's fault are outlined here.
Doctor's Obligation for Sufficient and Informed Consent
According to the second paragraph of Article 17 of the Constitution, apart from medical necessities and cases prescribed by law, the integrity of a person's body cannot be violated, nor can they be subjected to scientific and medical experiments without their consent. Under Article 70 of the Law No. 1219 on the Practice of Medicine and Branches of Art, physicians, dentists, and dental technicians must obtain the consent of the patient, or if the patient is a minor or under guardianship, the consent of their legal guardian or trustee before performing any kind of surgical operation. For major surgical operations, this consent must be in writing.
Additionally, Article 5 of the European Convention on Human Rights and Biomedicine stipulates the obligation to obtain informed consent, stating that any intervention in the health field can only be carried out after the person concerned has given free and informed consent to the intervention. This person must be provided with appropriate information beforehand about the purpose, nature, consequences, and risks of the intervention, and they have the right to withdraw their consent freely at any time.
The Constitutional Court, in its decision on the "Fındık Kılıçaslan" application, ruled that there should be a suitable time interval between the provision of information and the medical intervention to enable the patient to form a healthy opinion. According to this decision, it is very important that patients also write the hour and minute when signing consent forms. Generally, the information provided is incomplete, and the signatures are obtained with insufficient information. Indeed, precedents in the Supreme Court have placed the burden of proof for obtaining informed consent on the doctor and healthcare institution.
Malpractice Lawsuit and Complications
In Turkiye, according to the decisions of the Supreme Court and the Council of State, a complication is an unforeseen situation or an undesirable outcome that occurs during a medical intervention, which cannot be predicted or prevented even if foreseen; however, it should not be due to a lack of knowledge or skill. According to this definition, it is stated that a physician will not be legally responsible for unwanted outcomes that arise despite acting within the framework of medically accepted normal risks and deviations and showing the necessary care and attention. If a patient is informed of the possible unwanted outcomes and complications that can occur during and after the medical procedure, and gives consent to the procedure, then the medical intervention is legally compliant. If the harmful outcome in the patient cannot be foreseen and prevented, or even if it can be foreseen, but cannot be prevented (provided that the patient has been adequately informed and consent obtained, and there is no fault in the application), then this situation should be accepted as a complication. At this point, it is required that there is no deviation from medical standards, and professional experience rules have been adhered to. Similarly, the diagnostic and treatment applied in the process following the occurrence of a complication must also comply with medical rules. At this point, the management process after the complication is also important in determining the presence of service fault.
Competent and Authorized Court in a Malpractice Lawsuit
In malpractice lawsuits against independently practicing physicians and private hospitals and their employed physicians, the competent court is the consumer court.
In malpractice lawsuits against public hospitals and official health institutions, the competent court is the administrative court.
In Turkey, physicians are required to have mandatory professional liability insurance. In a malpractice lawsuit against an insurance company, since the insurance company has the status of a merchant, the commercial court of first instance is responsible according to the Turkish Commercial Code.
Jurisdiction rules are the rules that determine which court in which location will hear the malpractice lawsuit. According to the general jurisdiction rules, the competent court is the court of the place of residence of the defendant natural or legal person at the date the lawsuit is filed. If there are multiple defendants, the lawsuit can be opened in the court of the residence of one of them.
In addition to the general jurisdiction rules, Turkiye has specific jurisdiction rules. If the lawsuit is to be filed in a consumer court and there is a contract involved, it can also be filed in the court of the place where the contract is performed. That is, the place where the surgery is performed, the medication is administered, or the treatment is carried out is considered the place of performance of the contract.
Specifically for consumer cases, according to the special jurisdiction rule provided in the Consumer Protection Law, a malpractice lawsuit can also be filed in the court of the consumer's place of residence.
If the lawsuit is based on tort law, according to the jurisdiction rule in the Code of Civil Procedure, compensation lawsuits can be filed in the court of the place where the tort was committed. If the damage occurs in a place other than where the tort was committed, a compensation lawsuit can also be filed in the place where the damage occurred. In cases of torts, compensation lawsuits can also be filed in the court of the residence of the person who suffered the damage.
Who Can Be Sued in a Malpractice Lawsuit?
Compensation lawsuits for physician errors occurring in official health institutions can be filed directly against the relevant public institution. According to the Constitutional provision, a direct compensation lawsuit cannot be filed against a doctor with the status of a civil servant. However, the public institution's right to recourse against the doctor is reserved.
In private hospitals, compensation lawsuits for physician errors can be jointly filed against the doctor who made the wrong diagnosis or treatment, the hospital operator, and the insurance company that insures the doctor's mistake.
Statute of Limitations in Malpractice Lawsuits
If a lawsuit is to be filed against public hospitals and official health institutions based on service fault, it is necessary to submit an application to the health institution claiming material and moral compensation before filing the lawsuit. This requirement is stated in the Administrative Litigation Procedure Law, and it is necessary to apply in writing to the relevant administration within one year from the date of learning about the damage and the doctor's error, and in any case within 5 years from the date of the incident. If the application is rejected or no response is given within 30 days, thereby being implicitly rejected, a lawsuit must be filed in the administrative court within 60 days. It should be noted that the extended statute of limitations periods originating from criminal law are not applicable for service fault in administrative courts, hence the period does not extend.
The statute of limitations for a malpractice lawsuit to be filed in a consumer court against a private hospital or physician based on a contract of work is also 5 years. If the doctor has a grave fault in the medical intervention, the statute of limitations extends to 20 years.
The statute of limitations for compensation lawsuits filed in consumer courts against private hospitals or physicians based on agency contracts is 5 years. For lawsuits for material and moral compensation filed against physicians due to a breach of contract, either based on work or agency contracts, the statute of limitations periods applicable in criminal cases cannot be applied.
In malpractice lawsuits against private hospitals or physicians based on tort, the statute of limitations expires two years from the date the injured party becomes aware of the damage and the liable party, and in any case, ten years from the date the act was committed. However, if the compensation arises from an act that requires punishment under criminal laws with a longer statute of limitations, then the statute of limitations provisions of the criminal case apply.
In malpractice lawsuits filed for carrying out medical procedures without obtaining the necessary permission or consent from the patient, based on the grounds of acting without agency, the statute of limitations is 10 years.
Mediation Institution in Malpractice Lawsuits
With the Law on Amendments to the Code of Civil Procedure and Some Other Laws, which was accepted in the Parliament and came into effect with the Official Gazette dated 28.07.2020, a mediation requirement has been introduced for consumer lawsuits. If the lawsuit you plan to file based on your specific case needs to be filed in a consumer court, it is mandatory to apply for mediation before filing the lawsuit. Otherwise, your case will be dismissed due to the absence of this procedural requirement.
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