Doctor mistake compensation case

The name of the doctor's error compensation case in the medical literature is Malpractice case. Malpractice, in a broad sense, is the wrong and bad practice of medicine by a physician. According to the "Malpractice" Declaration adopted at the 44th World Medical Association general assembly in 1992,

"Medical malpractice should be distinguished from situations that occur during medical care and treatment and are not the fault of the physician.

a) Medical malpractice; It is the "harm" caused by the doctor's failure to perform standard practice during treatment, lack of skill, or failure to provide treatment to the patient.

b) If it occurs as a result of unforeseen lack of knowledge or skill during medical practice; "It is an undesirable result and the physician is not responsible for it."

Doctors have legal responsibilities as well as criminal liability in cases where they go beyond medical standards while practicing medicine and harm patients due to lack of skill, experience, knowledge or indifference. They are obliged to compensate for the damage they cause to the patient.

In order to file a lawsuit for compensation due to a doctor's error, it is first necessary to correctly determine the legal dimension of the relationship between the patient and the doctor. Because physicians' medical malpractices lead to liability in the context of private law, determining the legal relationship between the patient and the physician is the most important keystone in order to claim compensation. The legal relationship between the patient and the doctor will determine the liability provisions in the compensation case filed due to medical malpractice, and different relationship qualifications will lead to different legal consequences in these cases. Therefore, a mistake in determining the legal relationship may cause huge losses of rights and time. At this point, it is recommended that patients pursue such cases that require both legal and medical knowledge by getting the help of an expert lawyer.

WHEN DOES THE PATIENT - DOCTOR RELATIONSHIP START?

In order to determine the appearance of the relationship established between the patient and the physician for diagnosis and treatment purposes within the framework of private law, the starting point of this relationship must first be known.

The patient applies to the doctor for diagnosis and treatment, and the doctor accepts the patient and begins to take his medical history (anamnesis). At this point, the legal relationship between the patient and the physician, which we can evaluate within the framework of private law, is considered to have begun.

ANAMNESIS: It is the most important step in diagnosing the disease. The doctor asks the patient questions about the patient's current or past illnesses, the treatments he has had so far, the medications he has used, etc. Gains knowledge on topics such as. Therefore, while the information received from the patient can guide the physician in diagnosis, incomplete and incorrect anamnesis may lead to misdiagnosis and liability of the physician in the future.

LIABILITIES OF THE DOCTOR THAT MAY BE THE SUBJECT OF A COMPENSATION CASE

The physician has obligations towards the patient arising from contractual or other types of relationships with the patient. The facts that are the subject of a malpractice lawsuit occur as a result of violation of these obligations. Therefore, after determining the type of relationship between the physician and the patient, the most important issue is to determine which breach of obligation the physician will be liable for compensation for. At this point, if we examine the physician's obligations towards the patient in general terms;

PHYSICIAN'S OBLIGATION TO CLARIFY

HHY. Art. According to Article 24, "The patient's consent is obtained for medical interventions." The physician who will perform the medical intervention has the obligation to inform the patient about the nature, risks and complications, if any, of the medical intervention to be applied. In case of improper consent or medical intervention that goes beyond the scope of the consent given will be against the law, the legal liability of the physician in terms of material and moral damages that may occur to the patient comes to the fore. The burden of proof for informed consent belongs to the physician or hospital.

For detailed information about the scope of the physician's obligation to inform the patient and the procedure for legally valid information, you can review our article titled Informed Consent . Here, we will include some judicial decisions due to the importance of the issue.

"It is an obligation for the defendant to inform the patient about the results and complications that may occur before the surgery, according to Article 357 of the Code of Obligations. As the court accepted, the consent form submitted to the file is printed, and the content of the file cannot be understood as to whether the defendant informed the plaintiff about this issue and warned him by making reasoned explanations, whether the plaintiff was adequately informed, and whether the plaintiff would consent to this operation even if the complications of the operation were known. "In that case, while the defendant's evidence on this issue should be collected and a decision should be made based on the result, making a decision based on incomplete examination is against the procedure and the law and requires reversal." 13.HD. 13.06.2013, 2013/14354-16113

As we have stated, informed consent forms should be examined primarily by judicial bodies in malpractice cases. If the information is not provided in accordance with the procedure, even if the result remains within the scope of complications, it will not be enough to remove the physician's responsibility. A recent Constitutional Court decision includes the following statements on the subject:

"As for the evaluation of the allegation that the procedural aspect of the right to life was violated, the report prepared by the Specialized Board by examining the medical documents about M.E. stated that M.E.'s portal vein injury was a complication that developed during the surgery and that the death occurred as a result of liver failure and complications that developed after the surgery. The court also rejected the case based on the aforementioned report. In this regard, it can be said that the applicant's claims were discussed and met based on concrete findings and determinations in terms of the claim regarding doctor's negligence. However, the applicant Although M.E. claimed that the obligation to inform was not fulfilled by not informing that the surgery would be started as a closed surgery, and in her petition dated 28/11/2019, she claimed that they were not informed about the process and requested a re-report from the High Medical Board of the Institute of Forensic Medicine; however, the Court did not evaluate whether M.E. had received the informed consent form required during the surgery, what the scope of the said form was, and whether the form included risks that could occur during the surgery and cause the death of the applicant. Considering the applicant's allegations, an evaluation should have been made on the mentioned issues, including the use of expert examination, if necessary. Therefore, it cannot be said that the Court carried out an examination with the rigor required by Article 17 of the Constitution.

For the reasons explained, it must be decided that the procedural aspect of the right to life guaranteed in Article 17 of the Constitution has been violated." (25/6/2025 T. 2021/56334 B.NO)

PHYSICIAN'S DUTY OF CARE

Another obligation of the physician towards his patient is the "Duty of Attention and Care". The duty of care, which is a general responsibility, is regulated in the law under different headings in multiple articles. The physician is under a duty of care in stages such as examination and clarification, as well as in all processes of anamnesis, diagnosis and treatment. The physician is obliged to act in accordance with medical standards and the rules of the medical profession and ethics in all his procedures. In case of violation of this obligation, the physician may have criminal liability as well as compensation liability. With the decisions of the Supreme Court, the limits of the physician's duty of care within the scope of agency relationship have been clearly drawn. Namely;

•"Although the agent is not responsible for not achieving the result he aimed for while performing the work subject to his duty of attorney, he is responsible for the damages arising from the lack of care in the transactions, actions and behaviors he made in his efforts to achieve this result. The liability of the agent generally depends on the rules regarding the liability of the worker. The agent has to act diligently like an employee and is responsible for even the slightest fault. Therefore, all the faults of the doctor within the scope of his profession, even if slight, should be accepted as an element of responsibility.

In order to prevent harm to the patient, the doctor must fulfill all professional requirements, determine the patient's medical condition in a timely manner and without delay, take the precautions required by the specific situation, and determine and apply the appropriate treatment without delay. In cases where there is even minimal hesitation, the person is obliged to conduct research to eliminate this hesitation and to take protective measures in the meantime. When making a choice between various treatment methods, the characteristics of the patient and the disease should be taken into consideration, attitudes and behaviors that would put him/her at risk should be avoided and the safest method should be chosen. Indeed, the client (patient) has the right to expect the attorney, who is a professional doctor, to show meticulous care and attention at all stages of the treatment. The attorney who does not show due care is subject to the provisions of Article 510/1 of the Turkish Code of Obligations. In accordance with the provision of the article, it should be deemed that the power of attorney has not been performed properly. "Even though the requirements and rules of medicine are followed, if the result does not change, the doctor should not be held responsible." (13.HD. 7.11.2013, 2013/23055-27584)

PHYSICIAN'S OBLIGATION TO TAKE ANAMNESIS

It is the process of taking the patient's history by asking a number of questions in order to understand the complete history of the disease before all medical interventions that the physician will perform on the patient. Any carelessness or mistake made by the physician while taking the patient's history may result in harm to the patient. For example, if the patient is using medication for a different disease and the combination of the drug treatment chosen by the physician and the current medication used by the patient is dangerous for the patient's health, this may harm the patient and the physician may be liable for compensation due to his negligence in taking anamnesis.

THE DOCTOR'S OBLIGATION TO CONFIDENTIALITY

Patients have the right to request that all private information regarding their treatment process be kept. Since the physician provides healthcare services, he/she has the obligation not to share the secrets he/she has about the patient with anyone and to respect the patient's privacy. In cases where patients are harmed by revealing their secrets, they have the right to have the damage suffered both due to tort and due to violation of the loyalty and duty of care provisions of power of attorney and work contracts, by filing a lawsuit for non-pecuniary damages against the physician.

When beginning their careers, physicians swear with the phrase "to keep secrets that my patient has revealed to me, even after his death..." as stated in the Physician's Oath. Indeed, the physician's obligation to keep confidentiality is an ongoing obligation that does not end with the death of the patient.

Medical Professional Ethics Rules

Article 9- The physician cannot disclose the secrets he learned from his patient while practicing his profession. The death of the patient or the termination of the relationship with that physician does not relieve the physician of this obligation.

If the patient gives consent or if keeping the secret endangers the life of the patient or other people, the physician is not obliged to keep this secret, provided that the patient's personal rights are not harmed.

In cases of legal obligation, the physician's preparation of a report does not mean the disclosure of professional secrets. When a physician is summoned to court as a witness or expert, he or she may withdraw from these duties by claiming that the incident is a professional secret.

PHYSICIAN'S OBLIGATION TO ACCOUNTABILITY AND RECORD KEEPING

BK of Physicians. MD. As stated in Article 508, "The attorney is obliged to give an account of the work he/she carried out upon the request of the proxy giver and to give to the proxy giver what he received in relation to the power of attorney." According to their statements, they have an obligation to be accountable for the work they carry out.

It is important to show due care and attention regarding the medical records of patients, to ensure the accuracy of records such as patient's identity, treatment, anamnesis and diagnosis, and to include date and time information. Since these records also constitute personal data, the confidentiality of the records is important. In case of violation of the confidentiality of these records, or if the records are not kept at all, are kept carelessly incomplete, or are deleted from the archive before the archiving period, and if the patient suffers any damage due to these defects, then the physician's liability for compensation will come to the fore.

In this context, an epicrisis report is prepared and given to the patient, containing information about the entire diagnosis and treatment process, for patients who are referred to another health institution or physician, especially in emergency situations, or for patients who are discharged from the health institution. Thanks to this informative document, the physician to whom the patient is referred or the physician to whom he/she will go to in case of a recurrence of illness in the future will be informed of the diagnosis and treatment process the patient has gone through in the past and can provide faster and more effective healthcare services. For this reason, recording the patient's epicrisis report is very important for the patient's health safety.

PHYSICIAN'S CONSULTATION OBLIGATION

Article 18 of the Rules of Medical Professional Ethics states: "While performing his medical duties, the physician cannot take any action that requires special knowledge and skills, except in cases where delay may threaten the life of the patient." It is stated. While treating a patient, the physician may need to collaborate by seeking advice from a physician who is an expert in a different branch of science that is not within his or her field of expertise. In this case, the physician indicates the consultation request to the patient, or in some cases, the patient requests it from the physician. Since the physician who does not request consultation for the patient in cases of necessity, does not accept the patient's request in this regard, or does not fulfill his duty when consulted as a consultant will be considered at fault, the damages suffered by the patient due to this situation can be compensated by the physician through a malpractice lawsuit.

LEGAL BASIS OF MALPRACTICE CASE

The legal relationship between patient and physician takes on four different aspects within the framework of private law. And because of these 4 different views, there are differences in terms of the legal basis of the lawsuit to be filed, the persons or institutions against which the hostility will be directed, the liability provisions and the burden of proof. The types of legal relationships that constitute the legal basis for lawsuits in which liability for compensation for medical malpractice is sought due to physician malpractice may be as follows: Liability arising from contractual relations, tort liability, acting without authority and service defects of the administration.

1-CONTRACTUAL RESPONSIBILITY OF THE PHYSICIAN

The common view regarding the evaluation of the rights and obligations of the patient and the physician applying to an independent physician is that there is a contractual liability. While the name of the contract is mentioned as medical contract in the doctrine, a distinction has been made in terms of the type of the contract and the nature of the medical intervention applied.

AUTHORITY AGREEMENT: Law of Obligations art. 502 "Provisions regarding power of attorney are also applicable to employment contracts that are not regulated in this Law, to the extent that they comply with their qualifications." With its expression, it is understood that the rights and obligations of the contractual relationship established between the patient and the physician for diagnosis and treatment purposes should be evaluated within the scope of the "Power of Attorney Agreement".

•In a power of attorney relationship, although the doctor is not responsible for not achieving the result he intended while performing his duty, he is responsible for the damages arising from his efforts to achieve this result, his actions, his actions and his lack of care. Therefore, doctors who are in the position of attorney must fulfill their duty of care by using all the opportunities provided by science and technology. (13.HD. 3.3.2016, 2015/8692 - 2016/6591)

•In order to prevent harm to the patient, the doctor must fulfill all professional requirements, determine the patient's medical condition in a timely and without delay, and take the necessary precautions required by the concrete situation. In cases that cause even minimal hesitation, it is obliged to conduct research to eliminate this hesitation and in the meantime take protective measures. The client (patient) has the right to expect the representative, who is a professional doctor, to show meticulous care and attention to all stages of the treatment. Attorney (doctor) who does not show due care is subject to Article 394/1 of the Law. In accordance with the provision of the article, the power of attorney must be deemed not to have been performed properly. (13.HD. 27.3.2012, 2011/9457 2012/8303)

WORK CONTRACT:In aesthetic initiatives where medical practice is carried out with aesthetic concerns; The type of contract established between the patient and the physician, which outlines the rights and responsibilities. Law of Obligations, art. 470, "it is a contract in which the contractor undertakes to produce a work and the employer undertakes to pay a price in return." It is considered as the provisions of the "Work Contract" expressed in the form. In patient-doctor relations within the scope of the work contract, the patient is the employer; The doctor is the contractor. While in work contract relationships, the doctor guarantees the patient the success of the treatment result, in power of attorney contract relationships, the doctor cannot be held responsible for the mere failure of treatments in which he has no fault or carelessness. In cases where the legal relationship between the patient and the doctor arises from a work contract, the doctor must comply with the obligation of care and attention while performing his medical practice and ensure that it complies with the latest technology and professional rules of medicine. Otherwise, if the doctor has applied the rules of medical science incorrectly or incompletely and acted contrary to his duty of care, he may be held liable for his professional error.

•With the thought that it will be better understood with a Supreme Court decision; "The material fact relied upon in the case is that by performing plastic surgery on the nose, it is given a beautiful appearance in accordance with the desired and agreed form. Considering this fact, it is clear beyond doubt and hesitation that in such a contract, a debt is assumed by giving a guarantee for the outcome to occur, in other words, it is decided to achieve a certain result. Therefore, it is accepted that accepting this type of contract as a work contract will be in accordance with the requirements of the situation and the will of the parties." "The obligation in this contract is not a work that constitutes the subject of the agency contract. Because, unlike the elements in the agency contract, the aim is to achieve a certain desired result at the end of the work." (Y. 13. HD., 5.4.1993 T., E. 131, K. 2741)

BURDEN OF PROOF IN CONTRACTUAL LIABILITY

According to the YHGK decision, the patient is obliged to prove the doctor's medical intervention contrary to the contract, that this intervention caused harm to the patient, and the causal link between the damage and the doctor's medical intervention. If the existence of the doctor's intervention contrary to the contract is proven by the patient, the doctor can only be relieved of liability if he proves that he is not at fault for this act contrary to the contract.

2-THE DOCTOR'S TOROT LIABILITY

The person is responsible for compensating the damage caused as a result of his faulty and unlawful act. Compensation for damage caused by an illegal or immoral act is regulated in Article 49 et seq. of the Code of Obligations within the scope of tort provisions. In case the physician violates his obligations arising from the power of attorney or work contract while performing medical intervention, his act, that is, his fault, that causes harm to the patient also means violation of the provisions of tort. Therefore, as we have explained before, the physician may have contractual legal liability or tort liability for compensation for the damage suffered by the patient.

In some cases, there is no contractual relationship between the physician and the patient. In these cases, when demanding compensation due to malpractice, a lawsuit is filed according to the provisions of tort.

In the case of compensation for loss of support filed by the relatives of the deceased patient, the provisions of tort are also relied upon.

In accordance with the provisions of tort, the patient who files a compensation lawsuit against the physician is obliged to prove that he suffered damage due to the physician's tort and the causal link between the damage and the physician's tort. The physician will be relieved of liability only if he proves that he has no fault.

3- DOCTOR'S RESPONSIBILITY TO WORK WITHOUT ATTORNEY

A malpractice lawsuit to be filed based on the physician's liability to act without power of attorney may arise in cases where the physician must take urgent medical intervention for the benefit of the patient, in cases where no contractual relationship has been established between the patient and the physician. In a relationship without power of attorney, the physician must provide urgent medical intervention for the benefit of the patient, but since the patient is unconscious, his/her consent cannot be obtained before medical intervention. For example, in cases where the extension of the surgery is necessary for the benefit of the patient while the patient is unconscious during the surgery, or the intervention of the physician to whom the patient who had a traffic accident is brought against his will is subject to the provisions of liability for acting without authority.

Medical Deontology Regulation art. 3

"Regardless of his duty and specialization, the physician provides first aid in emergency cases where the necessary care cannot be provided, unless there is a force majeure./The dentist is also subject to the same obligation in his field." With the following expression, the obligation of the physician to intervene in emergency situations is regulated.

In accordance with this obligation, the responsibility of the physician who intervenes is determined in accordance with the provisions of working without power of attorney. The provisions of working without an attorney are regulated in the Code of Obligations as follows;

BK. ARTICLE 526- "A person who works on someone else's account without a power of attorney is obliged to see that work in accordance with the interest and assumed will of the owner."

BK. MADDE 527- "Vekâletsiz işgören, her türlü ihmalinden sorumludur. Ancak, işgören bu işi, işsahibinin karşılaştığı zararı veya zarar tehlikesini gidermek üzere yapmışsa, sorumluluğu daha hafif olarak değerlendirilir.

If the employee has done this job even though the employer has explicitly or implicitly prohibited it, and if the employer's prohibition is not against the law or morality, he is also responsible for the unexpected situation. However, if the employee proves that this damage would have occurred as a result of an unexpected event, even if he had not done that job, he will be released from liability.

•In the case of a compensation lawsuit filed against the physician due to the extension of the surgery beyond the scope of the patient's consent;

While the patient was undergoing surgery to remove a kidney stone, he requested moral compensation as a result of the sadness he suffered because the doctor removed his entire kidney. In the Supreme Court decision, the patient's compensation claims were rejected. In the decision;

"The surgery performed to remove the stone in the plaintiff's kidney, in view of the inflammatory condition presented by the kidney; resorting to surgery (removal of the stone) would endanger the plaintiff's health, the removal of the kidney was a result of a medical necessity, and the normal and necessary thing was done,

According to the fact that there is no fault attributable to the defendant in the kidney removal process, the removal of the kidney does not represent any definite harm, and that closing the wound and proceeding with a second surgery by taking leave is considered harmful for health, and in this case, the action was taken as required by medicine; It was stated that "the defendant doctor is not responsible and this claim for non-pecuniary damages is rejected."

MALPRACTICE CASE CONDITIONS

In order to file a lawsuit due to a doctor's error, the liability conditions in contractual debt relations within the scope of the Code of Obligations must be met.

•EXISTENCE OF A LEGALLY VALID CONTRACT: First of all, there must be a legally valid contract between the physician and the patient. The existence of a legally valid contract is the first condition for being able to take legal responsibility by suing the doctor.

•ACT CONTRARY TO CONTRACT: While providing medical treatment to a patient with whom he has a contractual relationship, the physician must act contrary to one of his obligations under the contract and cause material or moral damage to the patient's rights.

•DAMAGE: Damage may mean material or moral damage. As a result of the physician's medical error contrary to the contract; Compensation for material damage due to the decrease in the patient's assets and for moral damage due to the pain and suffering of the patient comes to the fore. The second condition for claiming compensation from the doctor for malpractice is that the patient has suffered material or moral damage.

•FLAW: There must be a fault that can be attributed to the doctor.

•CAUSALITY: Another condition required for the physician to be liable for compensation is that there must be a causal link between the damage suffered by the patient and the physician's medical malpractice.

THE COURT IN CHARGE OF COMPENSATION FOR DOCTOR'S MISTAKE

In cases of pecuniary and non-pecuniary damages to be filed against self-employed physicians due to a doctor's error, the Consumer Courts are the competent court, regardless of whether the source of the relationship between the patient and the physician is a power of attorney or a work contract. At the same time, medical malpractice compensation cases filed against private hospitals are also filed in Consumer Courts. For physicians who are public employees, administrative courts will have jurisdiction since a lawsuit will be filed against the institution.

DOCTOR'S MISTAKE COMPENSATION AUTHORIZED COURT

In cases of pecuniary and non-pecuniary damages filed against self-employed physicians due to a doctor's error, the court of the defendant's place of residence on the date the case was filed, which is the court of general jurisdiction, has jurisdiction. Except for the general competent court, HMK Art. According to Article 10, "Cases arising from the contract can also be filed in the court of the place where the contract will be executed." In cases arising from tort, HMK Art. In accordance with Article 16, the court of the place where the tort is committed or where the damage occurs or is likely to occur, or where the injured party resides, is also authorized.

Doctor's Error Compensation Statute of Limitations

In cases of pecuniary and non-pecuniary damages to be filed against self-employed physicians due to a doctor's error, if the receivable is based on a power of attorney agreement or work contract relationship, the Code of Obligations Art. According to Article 147/5, there is a 5-year statute of limitations. In case of compensation receivables based on the work contract, Article of the Code of Obligations. Pursuant to Article 478, if the physician is seriously at fault, it is subject to a 20-year statute of limitations, regardless of the nature of the medical error.