Errors arising during diagnosis and treatment from a physician’s lack of knowledge, inattention or failure to exercise care do not cause the patient bodily loss alone; they frequently leave deep psychological effects as well. Addressed under the heading of medical malpractice, these events may give rise to legal liability on the part of the physician alongside the harm suffered by the patient.
Where certain conditions are satisfied, a patient who has suffered harm through physician error may bring a claim for damages. Actions for damages arising from malpractice are a process with a pronounced technical dimension, aimed at making good the patient’s pecuniary and non-pecuniary losses. By what criteria, then, is the physician’s legal liability determined? In which circumstances will a claim for damages be entertained? In this briefing note we examine the concept of malpractice and the details of the action for damages.
The Concept of Faulty Medical Practice
What Does Malpractice Mean?
Malpractice is a word of Latin origin bearing the sense of “bad practice”; in the medical field it is used to describe harm arising from a faulty practice. In general terms, malpractice is the patient suffering harm as a result of the faulty conduct of a healthcare worker or their neglect of duty. The concept may be summarised as erroneous treatment practices or medical negligence, and it may carry legal liability with it.
Article 13 of the Turkish Medical Association’s Rules of Medical Professional Ethics, headed “Bad Practice of Medicine (Malpractice)”, contains the following definition:
Rules of Medical Professional Ethics Art. 13
“A patient suffering harm on account of ignorance, inexperience or indifference amounts to ‘bad practice of medicine’.”
Under this definition, faulty, culpable or negligent conduct during medical practice gives rise to malpractice and may bring the physician’s civil or criminal liability into play.
How Are Malpractice and Complication Distinguished?
Where a patient has suffered harm following a medical practice, drawing the distinction correctly between the concepts of malpractice and complication is of great importance in determining whether the physician’s liability may be engaged.
Malpractice is the harm arising from the physician departing from standard practice during treatment, displaying a lack of skill, or failing to administer treatment to the patient. A complication, by contrast, is assessed as the materialisation of risks inherent in the nature of medical interventions.
Article 2 of the World Medical Association’s Statement on “Malpractice” sets out a detailed explanation of the matter:
World Medical Association Statement on Malpractice Art. 2
“Medical malpractice must be distinguished from those situations arising during medical care and treatment which are not the fault of the physician.
a) Medical malpractice is the harm occasioned by the doctor failing to apply the standard practice during treatment, by a lack of skill, or by not administering treatment to the patient.
b) What occurs during medical practice as a result of an unforeseeable deficiency of knowledge or skill is an undesired outcome, and the physician bears no liability for it.”
The conclusion to be drawn is this: whereas the physician’s legal liability arises in cases of medical malpractice, complications appearing after an intervention conducted in accordance with proper procedure and principles impose no liability on the physician.
Contractual Liability for Faulty Interventions
The Conditions of Contractual Liability
In legal relationships founded on contract, the parties are bound to act within the framework drawn by the contract when exercising their rights and performing their obligations. As regards conduct constituting a breach of contract, the arising of legal liability depends on a number of conditions being satisfied together. The conditions required for contractual liability are as follows:
- the existence of conduct contrary to the terms of the contract
- that the conduct in question be culpable
- that harm has arisen from that conduct
- that an adequate causal link can be established between the culpable conduct and the harm arising
Where the physician has carried out a culpable intervention contrary to their contractual obligations and the patient has suffered harm as a result, the physician’s contractual liability may be invoked. In such a picture the injured patient has, where the conditions are made out, the possibility of bringing an action for pecuniary or non-pecuniary damages on account of malpractice. In establishing a breach of contract, the nature of the contract between the parties, the terms it contains and the reciprocal rights and obligations of the parties are decisive.
In addition, where the physician’s unlawful conduct has resulted in death or bodily harm, that act may be characterised as a negligent or omission offence within the framework of the Turkish Penal Code No. 5237, and the physician’s criminal liability may arise. For details on the subject, our study entitled Criminal Proceedings for Physician Error (Malpractice) may be consulted.
The Position Under Contracts for Cosmetic Purposes
Procedures directed at enhancing appearance, such as cosmetic operations and the fitting of dental prostheses, are in the nature of a contract for work. Under this type of contract the physician’s principal obligation is to produce the result undertaken in line with the patient’s wishes, while the patient’s principal obligation is to pay the agreed fee. In contracts for work the result guaranteed is expected to be achieved.
Alongside the physician’s principal obligation there are also ancillary obligations they must discharge. These include arriving at an accurate diagnosis, selecting and applying the most appropriate method of treatment, and producing the work personally. In addition, the physician is bound to obtain the patient’s informed express consent, to adhere to the duties of loyalty and care, to use materials meeting quality standards, to keep medical records in full, to observe the patient’s privacy and to comply with the obligation of confidentiality.
A failure to discharge these obligations at all or as required constitutes a breach of contract and brings the physician’s liability into play. For detailed information, our study entitled Action for Damages for Cosmetic Surgery Error may be consulted.
The Position Under Contracts for Therapeutic Purposes
Agreements directed at conducting the course of treatment are, as a rule, in the nature of an agency contract. In this relationship the principal obligation of the physician, who bears the capacity of the person performing the work, is to diagnose and treat the patient’s ailment. Treatment contracts founded on agency contain no guarantee that a particular result will be achieved; what matters is that the acts and procedures be conducted with care.
Ancillary obligations accompany this principal obligation of the physician. The physician must obtain the patient’s informed express consent, comply with the duties of loyalty and care, and as a rule perform personally (exceptional situations aside). Beyond these, the physician is expected to act with regard to the patient’s interests, to forestall losses, to carry out and follow up the legal formalities the process requires, to keep medical records in full, to account to the patient, and to adhere to the obligations of privacy and confidentiality.
A breach of any of these obligations constitutes a breach of contract and gives rise to the physician’s legal liability.
Tort Liability in Medical Procedures
The physician’s legal liability arising from a medical procedure may be founded on the contract between the parties, but it may equally be founded on the provisions on tort pursuant to Art. 49 of the Turkish Code of Obligations No. 6098. For tort liability to be invoked, all of the following conditions must be present together:
- that conduct of an unlawful nature has taken place
- that the conduct was committed culpably
- that harm has emerged as a result of the conduct
- the existence of an adequate causal link between the culpable conduct and the harm
Where these conditions are satisfied together, a patient who has suffered harm through the physician’s unlawful and culpable conduct may invoke legal liability in tort. In such a case the patient may, to the extent the conditions are met, bring an action for pecuniary and non-pecuniary damages on account of malpractice.
Unlawfulness is determined by identifying conduct running counter to the commands, prohibitions and obligations laid down by the legal order, together with situations causing harm to a person’s assets or personal interests.
Furthermore, where death or bodily harm has arisen from the physician’s unlawful conduct amounting to a tort, that outcome may be assessed as a negligent or omission offence within the framework of the Turkish Penal Code No. 5237. In that event the physician’s criminal liability also arises.
Liability Arising from Agency Without Authority
In relation to medical procedures, the relationship of agency without authority covers interventions carried out in order to protect the patient’s health where the patient is unconscious or unable to declare their will. The concept of hypothetical consent underlies this relationship; that is, it is accepted that the patient would have approved the intervention had they been in a position to give consent. A relationship of agency without authority arises principally in three situations:
- Cases where the contract is regarded as invalid: Even where the contract between the patient and the healthcare institution is not valid, the existence of a relationship of agency without authority is accepted.
- The patient being in no position to declare their will: Where the patient is in a condition in which they cannot express their will, the healthcare institution intervenes in their favour within the scope of agency without authority.
- Unexpected complications arising during treatment: Where an unforeseen complication develops while treatment is ongoing and consent cannot be obtained from the patient, this relationship comes into play.
Agency without authority in medical procedures describes medical acts carried out in the absence of any bond founded on the patient’s will. In this situation the healthcare institution or the physician may be held liable for their conduct causing harm. In emergencies or where the patient is unconscious, interventions carried out without consent having regard to the patient’s overriding interest fall outside the agency relationship; the physician’s contractual liability therefore does not arise.
On the other hand, medical procedures that must necessarily be carried out in line with the patient’s overriding interest constitute a ground of lawfulness pursuant to Art. 24(2) of the Turkish Civil Code No. 4721. Since such interventions are accordingly not regarded as unlawful, no tort liability arises on the part of the physician.
Liability arising from agency without authority is assessed under three separate heads pursuant to Art. 527 of the Turkish Code of Obligations No. 6098:
- Narrow liability: Pursuant to Art. 527 of the Turkish Code of Obligations No. 6098, where the person performing the work has acted in order to avert harm or the danger of harm faced by the principal, their liability is assessed by more lenient criteria. This is a provision that narrows the field of liability under agency without authority.
- Full liability: Within the framework of the relationship of agency without authority, the private healthcare institution is bound to exercise the requisite care as regards the patient’s health and safety. Acting contrary to this duty of care leads to the institution’s full liability.
- Extended liability: Where the patient has not consented expressly or impliedly and the healthcare institution has nonetheless acted, the scope of liability widens; the institution is held liable even for harm arising from unforeseen events.
Grounds Affecting and Removing Liability
In harm arising from medical practice, the physician’s legal liability rests as a rule on the principle of fault. For this reason, claims for damages directed against a physician on the ground of a faulty procedure succeed only where the harm stems from the physician’s fault. In certain situations the physician’s liability may be mitigated or removed altogether; in such cases a reduction may also be made in the amount of damages payable to the patient. Where the harm does not arise from the physician’s fault, no liability arises and no damages may be claimed.
Situations Removing Liability
The physician’s liability rests on culpable conduct contrary to law or contract having caused harm. Within this framework there must be an adequate causal link (a reasonable relationship of cause and effect) between the culpable conduct and the harm that has emerged. In the following situations the adequate causal link is broken and the physician’s liability may accordingly be removed:
- Legally permitted risk: Where the physician has, before the intervention, sufficiently informed the patient about possible complications and risks, obtained their informed express consent, and acted in conformity with the duty of care and with medical requirements, the complications that emerge are assessed within the scope of legally permitted risk. In that event the adequate causal link between the intervention and the harm is broken and the physician’s legal liability cannot be engaged.
- Force majeure: Extraordinary events that cannot be foreseen in advance, or that cannot be prevented even if foreseen, are regarded as force majeure. Where the unlawfulness or breach of contract stems from force majeure, no adequate causal link can be established between the physician’s conduct and the harm. Even where the necessary precautions have been taken, the physician cannot be held liable for harm arising from force majeure.
- The fault of a third party: Where the primary fault of a third party other than the injured person and the healthcare worker is grave enough to cause the harm on its own and overshadows the physician’s fault, the adequate causal link is broken and no legal liability arises on the part of the physician.
- The fault of the injured person: Where the primary fault of the person suffering the harm is of a nature capable of producing that outcome on its own and relegates the physician’s fault to a secondary position, the adequate causal link is broken and the physician’s legal liability is removed.
Situations Mitigating Liability
The physician’s legal liability depends on their being at fault in the harm that has arisen. Nevertheless, in some situations this liability may be mitigated and, correspondingly, a reduction may be made in the amount of damages. For example:
- Contributory fault: Where the fault of the injured person, combining with the fault of the healthcare worker, has contributed to the harm arising or increasing, this additional fault mitigates the physician’s legal liability and the amount of damages is reduced.
The Validity of Exemption Agreements
Medical practices must be carried out by healthcare workers who are specialised in the field and authorised by law. Otherwise the practice is regarded as unlawful.
Pursuant to Art. 115(3) of the Turkish Code of Obligations No. 6098, where a service requiring expertise may be conducted only by law or with the permission of the competent authorities, agreements made in advance to the effect that the debtor will not be held liable for their slight fault are absolutely void. Exemption agreements concluded with a physician accordingly carry no validity.
Actions Available for Harm Arising from Medical Procedures
In actions for damages arising from a physician’s medical malpractice, every act contrary to medical standards at the stages of diagnosing the illness, treating it and caring for the patient is taken into assessment. In these actions, redress for pecuniary and non-pecuniary harm may be claimed within the framework of the physician’s legal liability. Actions for pecuniary and non-pecuniary damages may be brought independently of one another or advanced together within a single action.
Action for Pecuniary Damages
In actions founded on malpractice, the burden of proving the harm falls on the claimant, that is to say on the patient or, in certain cases, on the patient’s relatives. Where it is not possible to determine the precise amount of the harm, the judge makes an assessment in the exercise of their discretion.
The heads of loss the injured patient may claim in an action for pecuniary damages are as follows: expenditure incurred for treatment, earnings that could not be obtained, losses arising from the diminution or total loss of working capacity, and harm stemming from the impairment of the economic future.
Where the patient dies as a result of malpractice, their relatives may claim the following heads: funeral expenses; where death did not occur immediately, treatment costs together with losses arising from the diminution of working capacity; and the harm suffered by those deprived of the deceased’s support.
Action for Non-Pecuniary Damages
The aim in an action for non-pecuniary damages is the payment of a sum that will to some degree redress the non-pecuniary loss experienced by the injured person. For this reason the amount awarded must not be at a level that enriches the injured person; it must be apt only to alleviate the pain they have felt.
In events arising from malpractice, non-pecuniary damages may be claimed in the following situations:
- Where grave bodily harm or death has occurred: the pain, distress and suffering endured by the injured person or by the relatives of the person who has died
- Where bodily integrity has been impaired: the pain, distress and suffering experienced by the injured person personally
The judge, assessing the particular circumstances of the incident, awards a proportionate sum of non-pecuniary damages that will not lead to enrichment.
The Procedure in Actions for Damages
Parties to the Action
Actions for damages to be brought on account of malpractice may be brought by the injured person or by their legal representatives. That said, the party against whom the action is directed differs according to whether the physician works in the public sector or in a private institution.
Actions against physicians serving in the public sector: No action may be brought directly against physicians working in state hospitals, university hospitals or family medicine practices. In these cases the action is directed not at the physician personally but at the administration to which they are attached. In other words, the action will be directed against the Ministry of Health or against the university to which the physician is attached.
Actions against physicians serving in private healthcare institutions: It is possible to bring an action directly against physicians working in private hospitals or private practices. Malpractice actions directed against private hospital physicians fall within the field of the civil judiciary and are heard before the consumer courts. In practice these actions are most often brought against both the physician and the private hospital at which they work, with claims for pecuniary and non-pecuniary damages combined.
Proving the Faulty Intervention
In malpractice actions, establishing the faulty intervention is one of the most critical elements determining the outcome. Under Article 190 of the Code of Civil Procedure No. 6100, the burden of proof falls on the party claiming damages. That is to say, the injured person is bound to prove that the physician carried out a faulty intervention.
Although the burden of proof lies with the claimant, there is one exception to this. Under the settled practice of the Court of Cassation and the prevailing view in the doctrine, the obligation to prove that the patient’s consent was obtained falls on the physician. Reading Article 190 of the Code of Civil Procedure No. 6100 together with Article 24 of the Turkish Civil Code No. 4721 leads to the conclusion that it is the physician who must prove that the duty to inform the patient was discharged.
Limitation Periods
In actions for damages to be brought on account of malpractice, the limitation period varies according to the nature of the legal relationship between the parties:
- In liability founded on a contract for work: In actions for damages arising from procedures aimed at enhancing appearance, such as cosmetic interventions, the limitation period is five years pursuant to Art. 147(6) of the Turkish Code of Obligations No. 6098. However, where the cosmetic surgeon is guilty of gross fault, the period applied is twenty years pursuant to Art. 478 of the Turkish Code of Obligations No. 6098.
- In liability founded on an agency contract: In actions to be brought on account of procedures carried out for therapeutic purposes within the scope of general healthcare, the limitation period is five years pursuant to Art. 147(5) of the Turkish Code of Obligations No. 6098. Since the agency relationship rests on trust, this period begins to run from the date on which the agent accounted to the principal or on which the agency relationship came to an end.
- In liability founded on tort: The injured person may also found their claim on the provisions on tort. Pursuant to Art. 72 of the Turkish Code of Obligations No. 6098, a claim for damages founded on tort becomes time-barred on the expiry of two years from the date on which the harm and the person liable became known, and in any event on the expiry of ten years from the date on which the act was committed.
Court with Subject-Matter and Territorial Jurisdiction
In actions arising from cosmetic operation errors, different courts may come into play according to the legal ground relied upon. If the claim is founded on a contract for work or on an agency contract, the court with subject-matter jurisdiction is the consumer court. If, on the other hand, the action is founded on the provisions on tort, the civil court of first instance has subject-matter jurisdiction.
- The general rule of territorial jurisdiction: In malpractice actions the court with general territorial jurisdiction is the competent court at the respondent’s place of residence. Where there is more than one respondent, the action may also be brought before the court of the place of residence of any one of them.
- Territorial jurisdiction in claims founded on contract: In actions founded on contract, the court with territorial jurisdiction is that of the place where the medical practice was carried out and where the obligations arising from the contract were performed.
- Territorial jurisdiction in claims founded on tort: In actions brought on account of a tort, the court of the place where the tort was committed, of the place where the harm arose or was likely to arise, or of the injured person’s place of residence has territorial jurisdiction.
Patients who have suffered harm through medical malpractice may also bring an action against the healthcare institution concerned in order to obtain redress for that harm. For detailed information on the actions that may be directed against healthcare institutions and on the legal process to be followed, our following studies may be consulted:
- Liability in Damages for Medical Malpractice in Private Hospitals
- Liability in Damages for Medical Malpractice in State Hospitals
- Liability in Damages for Medical Malpractice in University Hospitals
Independent Legal Assessment
In malpractice disputes the fate of the action is often determined as early as the pleading stage. Because whether the claim is founded on a contract for work, on agency or on tort changes the court with subject-matter jurisdiction, the limitation regime to be applied and the distribution of the burden of proof alike, an error in characterisation may lead to the file being lost without the merits being reached at all. In practice the distinction between the existence of an undertaking as to result in cosmetic interventions and the limits of the duty of care in therapeutic procedures gives rise to particular debate.
In determining the strategy in a specific file, the following headings must be clarified first:
- determining whether the intervention was therapeutic or aimed at enhancing appearance, and thereby establishing the type of contract
- establishing through the medical records whether the harm remained within the bounds of complication or arose from a practice falling outside the standard
- examining the scope of the informed consent and the manner in which it was obtained, since on this point the burden of proof lies with the physician
- determining, according to whether the physician is a public official, whether the action is to be directed at the administration or directly at the physician
- assessing which of the limitation periods attaching to the different legal grounds is favourable to the file
- documenting the heads of pecuniary loss in a form suitable for examination by a court-appointed expert
Independent Legal provides advisory services and conducts litigation across the entire process in disputes over damages arising from health law, from preparation of the file through to objections to expert reports and the appeal stage.