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The Case For Damages Due To Malpractice And Mediation

Malpractice means wrong treatment in the medical literature.Turkish Medical Association Rules of Medical Professional Ethics Article 13 refers to the concept of malpractice; is to harm a patient due to ignorance, inexperience or apathy, it is a bad practice of medical profession ”.The concept of malpractice, which is known as the doctor's error, the responsibility of the physician among the people, is a concept that gives the patient the right to file a case for treatment in certain medical errors.Malpractice cases; are the cases regulating the liability of physicians and other health personnel in bodily damages and deaths arising from their medical practiceswhich requires pecuniary and non-pecuniary damages.In order to be able to resort to this case, the person performing the medical practice must cause harm to the patient due to carelessness, recklessness or inexperience in the profession.

Physicians are obliged to pay due diligence in the performance of their profession in accordance with the provisions of the contract of proxy. They must pay attention and care attributable to everyone by their professional and general life experiences in order not to harm their patients. The physician should give full information to the patient about the treatment to be applied and the complications that may occur and should have obtained his/her consent for the treatment to be applied. In addition, in order to avoid any harm to the patient, he / she has to fulfill all the professional conditions, diagnose the patient's medical conditions on a timely basis, take the necessary measures and apply the appropriate treatment methods. the physician's behaviors contrary to these requirements are considered as malpractice, complications that mean ‘permissible risk’ defined as undesired developments occurred out of the patient or physician’s reach despite taking all precautions, and it does not seem possible to file a malpractice case if such a situation exists. In this case, no defect can be attributed to health personnel. This is because malpractice case can be filed if harm occurs to the patient due to the defective action of health personnel in a medical practice.

In case that a suspicion arises as to whether a harmful application is a complication or a service defect, it will be determined according to the conclusion of experts reports.

17/2 of the Constitution stipulates that. “The integrity of person cannot be touched, except in case of medical necessities and the conditions prescribed by law; it cannot be subjected to scientific experiments without his/her consent”. In this provision, it was stated that the prerequisite for legally interfering with the person's body integrity was “the situations prescribed by law”. The relevant legal regulations also state that consent is a prerequisite for medical intervention.

In accordance with the decisions of the Court of Cassation; diagnostic error, treatment error, deviation from medical standards, failure to performor late intervention, forgetting of material in the patient's body, incorrect dosage of medication are considered as medical malpractice. The existence of certain conditions is required for awarding compensation due to medical malpractice.Accordingly, there should be an unlawful action of physician and harm caused by the medical intervention, a defect attributable to the physician, causal link between the physician's unlawful act and the medical injury, In this context, the most important point to be taken into account is the existence of a defect and to prove such existence. According to the provisions of both contractual and unlawful acts, the physician should be culpable in performing the illegal act in order a liability for compensation to be born. Otherwise, it is not possible to sue the physician due to his/her responsibility in treatment.

Malpractice gives rise to the legal responsibility of the physician who applied the wrong treatment and his/her institution. This responsibility requires compensation and in some cases criminal sanctions. False treatment constitutes liability of torts under Article 49 of the Turkish Law on Obligations no. 6098 and it also constitutes a violation of the contract under Articles 502 and following articles. The well-established case-law of the Court of Cassation considers that a proxy relationship was established between the patient and the doctor in private hospitals, and the private law pillar of malpractice cases bases on this admission. The patient who has been damaged due to a doctor or hospital error has the right to demand pecuniary and non-pecuniary damages both from the physician and from the hospital,(if any) to which the physician is affiliated. It falls upon the patient (plaintiff) to prove the damage in the compensation cases.

In the calculation of financial compensation;

1. Costs (treatment costs, transportation costs)

2. Loss due to temporary incapacity to work (loss of earnings)

3. Damages arising from permanent incapacity to work (to be dependent on someone else's life-long care)

4. Damage and loss arising from economic deprivation (losses arising from the shaking of the economic future) shall be taken into consideration. The right to claim compensation for bodily damage rests solely on the patient. In the event that death occurs as a result of incorrect medical intervention, persons who receive permanent and regular assistance from the deceased may claim compensation for the deprivation of support if assistance is to continue according to the circumstances, if death did not occur and funeral expenses. These persons can be the deceased's wife, children, etc.

As for non-pecuniary damages, it will be demanded in response to the pain and suffering of the patient due to the wrong treatment, psychological shock caused by this situation and the decrease in the pleasure of life and will be determined by the judgment of the judge according to the severity of the damage. In the event of death or incapacity of the patient, the family may also claim non-pecuniary damages. For non-pecuniary damage it is sufficient an undesired situation in the person's health to be realized.

Malpractice lawsuits are mostly heard as compensation cases against physicians. The cases are heard as different ways of jurisdiction as to whether the physician works in public or private sector;

Cases for pecuniary and non-pecuniary damages will be filed due to medical malpractice performed by the physician while working in his own office or in private hospitals fall under the jurisdiction of the civil judiciary. The relationship between the physician and the patient is proxy. For this reason, in accordance with the Law No. 6502 on Consumer Protection Consumer Courts will have jurisdiction. case for compensation can be filed against both the private hospital and physician together. In such a case, the case must be heard in Consumer Court and the decision of the 13th Civil Chamber of the Court of Cassation 2014/30305 Decision no: 2014/35473 is also in this direction. The statute of limitations in the case of compensation for the physician error occurred in the private hospital is five years. Article 147/5 of the Turkish Code of Obligations applied to the relationship of proxy shall be valid for the statute of limitations. The beginning of this five-year period is the date when the damage caused by incorrect / faulty medical intervention was learned.

As the physician has compulsory financial liability insurance, the person who is harmed by the wrong treatment and practices of the physicians are also entitled to file a lawsuit directly against the Insurance Company before the Commercial Courts of the Civil Judiciary. However, before these cases were filed, it is a legal obligation to complete the mandatory mediation process, which is a pre-condition of litigation, and to initiate a lawsuit if no agreement was reached in this process.

No direct legal action can be initiated against doctors working in public or university hospitals. These lawsuits are brought against the Ministry of Health as an administrative compensation case before the administrative courts. In order to bring an administrative compensation action, it is obligatory to apply to the related institution for compensation of the damage. In case that negative or no response was received from the relevant institution, an administrative compensation case can be brought against the institution before the administrative courts. When applying to the courts, the administrative application must be made in accordance with the legal periods laid down in Article 13 of the Law on Administrative Proceedings no. 2577.

In the event that the relevant administration does not respond to the application, it is accepted that the request is rejected after the expiration of 60 days from the application. Administrative Compensation action must be brought within 60 days of the expiry of this period. If the Administration is sentenced to pay compensation as a result of these lawsuits, the charge is collected by filing recourse lawsuit from the responsible person (physician, health personnel etc.).

In addition to the fact that the legislation in the field of Health Law is scattered and the laws and regulations are very old, the factors such as, presently the lawsuits continue for years, the cost of the proceedings to seek justice, Lawsuits passing through a complex process for adjudication, the execution of the court decision can be difficult, the parties get exhausted during the long trials. etc. delays the resolution of the dispute. It takes years Justice be served. Mediation, which is one of the alternative dispute resolution methods, is a much faster and flexible process than the judicial way that you can initiate in less time with less cost. Mediation activity within the scope of Law No. 6325 on Mediation in Civil Disputes was described as a discretionary method of dispute resolution carried out as a public service which aims to bring together the parties in order to negotiate by applying systematic techniques and to establish a communication process between them in order to ensure that the parties understand each other and produce their own solutions, to bring forward a solution if it appears that the parties failed to produce one. Mediation activity; is carried out with the participation of an impartial and independent third party who was trained as an expert. In the field of health, it is possible to settle disputes through mediation. Mediation offers significant advantages compared to the litigation process we know. it is faster than case proceedings that last for months or even years and is completed in a few days or a few weeks. Resolving the disputes in 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 terms. Moreover, the mediation process is more economical than the judicial process. The parties can express themselves freely and listen and understand the other party. Mediation is a flexible process. It is often possible to maintain the relationship between the parties through the mediation process.

Furthermore, unlike the trial, the control of mediation 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 negotiations, which means that the satisfaction of the parties in mediation is higher. Conversations made before the mediator are confidential and cannot be used in court. Therefore, the parties also have the freedom to speak freely.

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