The legislation in force in the field of Health Law is scattered and disorganised. Although many articles have been changed over time, they still do not adequately respond to today's needs.
When the Health Law legislation is examined, it is difficult to come across clear provisions stipulating the obligations and responsibilities of physicians, hospitals and health personnel.It is a separate problem for judges to decide which provisions should be applied to the damages against the patient.
Health technologies, treatments, medical interventions, medicines, etc. are constantly changing and developing according to the requirements of the age.The arguments in the doctrine and the case-law of the Court of Cassation are no longer sufficient for the resolution of disputes.
In cases where individuals and patients who are subjected to damage due to the attitudes and behaviors of the medical personnel such as doctors (physicians), nurses, and hospital administrations will recourse to the provisions stipulating unlawful actions of the Code of Obligations, death and bodily damages, contradiction to the proxy agreement, and liability due to acting without proxy.
Illegality is inevitable in cases such as misdiagnosis and mistreatment, damage to people, not paying due diligence, not enlightening patients, being in violation of professional rules, not providing required health services, performing unlawful acts which require compensation by using medicine profession.
In order for any harm arising from the responsibility of health personnel such as doctors, nurses and hospitals to arise and to be the subject of a lawsuit, a relationship must be established between the parties first.
1-The contractual relationship is established by applying to the physician. The patient trusts the physician and carries out the treatment according to the physician's recommendations. The use of auxiliary personnel by the physician is also a part of the contract. The provisions of contradiction to contract will be applied in the compensation lawsuit filed by the patient who has suffered from treatment and malpractice.
if a person is harmed by the staff of the hospital or the equipment of the hospital, the legal entity of the hospital shall be responsible together with the physician performing the treatment.
2-Mandatory medical assistance of the physician to the patient
In some cases, physicians are consulted against the will of the patient.For example, if a person who is injured as a result of an accident or an attack or has a severe heart attack or cerebral hemorrhage, third persons who are not his / her relatives brings the person out of humanitarian aid to the place where the physician works or to the nearest hospital, in such a case, without establishing a contractual relationship between the physician and the patient, the physician conducts the required medical intervention by his/her profession.This situation is acting without proxy relation in terms of compensation liability.
3-Meeting with the physician through the hospital
If the patient goes to a hospital, if the examination and treatment is given by the physician appointed by the hospital management, the relationship will be established. between the patient and the hospital.
a) If the hospital is a private health institution, a contractual relationship will be established between the patient and the hospital upon admission of the patient for treatment. This is called ‘patient acceptance contract’. In such a case, the physician is legally deemed as the “assistant person”.
b) If the patient goes to a public hospital, a contractual relationship shall not be established between the patient and the hospital. Here, there is the situation of benefiting from a public service available for patients.Therefore, if the patient suffers from treatment, he cannot directly sue the physician and health personnel, but may file a lawsuit against the state institution to which the public hospital is affiliated due to service (duty) defect.Because the responsibilities of public hospitals and health personnel are, as a rule, deemed to be a service defect. As the employees of these hospitals are public officials, lawsuits can only be brought against the relevant public institution.
c) Apart from the service defect, if the physician or any hospital staff, despite being public officials, has a personal defect that can be separated from their duties as torts, a case can be brought directly against them in the judicial court.
4-Medical procedures that can be considered as work contract
The application of the provisions of the work (manufacturing) agreement to the relationship between the physician and the patient is accepted only in some exceptional cases.For example, the dentist's undertaking the construction of porcelain veneers, dentures, bridge and crown outside the usual treatment is called as work contract.In this context, aesthetic operations as changes in person's face for beauty, correcting the nose, stretching the face, removing excess fat, silicone to his/her chest or lips, having a change in the sexual organ are defined as a work contract.
5- Actions that can be considered as torts
Since medical treatment generally has the aspect of disposing on the patient's body integrity and health, any harmful action that violates the law, contract, medical science and professional rules also constitutes torts.
Private hospital staff or employees (physicians and other assistants), if they give the patient a prohibited medication, if they conduct an experiment on the patient, take an action that may be considered as organ and tissue trade,for example, if they mediate a person's sale of his kidney, or if they sell or use the patient's organs without the consent of relatives of the deceased in the hospital, perform abortions or condone the abortion,make changes to the sexual organs when there is no need, they would either be guilty of crime and also the victim or his / her relatives can sue for damages the hospital administration and perpetrators.
To file a case before the courts or Recourse to the mediator?
In the light of the above, when the people who have suffered want to resort to legal remedies for the damages.it would be more appropriate to choose the mediation which is one of the remedies of alternative dispute resolution in addition to the General Courts
The fact that the legislation in the field of Health Law is scattered and the laws and regulations are very old, that the lawsuits continue for years today, the cost of the proceedings to seek justice, the complex process for the decision of the cases, that he execution of the court decision can be difficult, the parties get tired during the long trials etc. factors delay the resolution of the dispute.It takes many years for justice to be served. In such cases, the party that could not control its nerves acts at all unwanted behaviors and uses violence against health personnel in order to serve justice for him.The best way to avoid such situations is to go to the mediator.
In the field of health, it is possible to settle disputes through mediation.
Mediation offers significant advantages over the litigation process we know.
Mediation is faster than cases that last for months or even years and is completed within a few days or a few weeks. Resolving the disputes in such a short time makes it easier for the parties to return to their daily lives and get rid of the negative effects of the disputes in psychological and sociological sense.Moreover, the mediation process is more economical than the judicial process. It is much less costly than the trial process. The parties can express themselves freely and listen and understand the other party. Mediation is a flexible process.A quick settlement of dispute resolution method will be used to alleviate the workload of the courts, to make the parties happier.It is often possible to maintain relations between the partiesthrough mediation.
Furthermore, unlike the trial, the control of mediation process is entirely in the hands of the parties. This means that the parties have much more say in the negotiations and have more control over the outcome of the proceedings.In mediation, the satisfaction level of the parties is higher. As the conversations made before the mediator are confidential they cannot be used in court. Therefore, the parties have the freedom to speak freely.
NTN Mediation Training and Consultancy Services Inc. recommends that the parties apply to the expert mediator to resolve the pecuniary and non-pecuniary damages disputes caused by the health personnel such as doctors, physicians, nurses, etc. and hospital administrations to the patients through mediation, which is one of the ways of alternative disputes resolutions.