The Turkish Code of Obligations No. 6098 contains no specific provision directly addressing the relationship between physician and patient or between hospital and patient. Because of this gap, the legal nature of the relationship known in practice as the patient admission contract or the hospital admission contract is a matter of debate. Although this relationship, which may vary according to the circumstances of the particular case, is predominantly treated in the case law as a contract of mandate, in certain situations it may also be founded upon a service contract, a contract for work or a contract of a sui generis nature.
The decision of the Assembly of Civil Chambers of the Court of Cassation in case no. 2009/13-393, decision no. 2009/542, dated 21 October 2009, which guides the case law in this field, contains detailed determinations as to the definition and nature of this contract and the obligations it imposes on the parties. Within the framework of that decision: contracts concluded between a person who applies to a health provider — most often a hospital — in order to receive medical services and that provider, under which the provider undertakes, beyond the medical services, such services as nutrition and rest, are generally termed the “Hospital Admission Contract”. In this relationship the hospital’s principal obligation to perform is the inpatient treatment of the patient.
The Question of Form in the Formation of the Contract
The validity of the hospital admission contract is not made subject to any requirement as to form. Indeed, it is even possible for this relationship to be formed by an implied declaration of intent. Nevertheless, a written instrument should be preferred, in that it facilitates proof in any dispute that may arise later.
The Parties’ Principal Obligations to Perform
Viewed from a general perspective, the obligations of the parties in patient admission contracts present the following picture.
The obligations lying on the hospital’s side include undertaking the diagnosis and treatment of the patient, providing hospital care, informing the patient and obtaining his or her consent. In addition, the hospital is placed under obligations to act with loyalty and diligence, to keep a record of the process, and to hold the information it learns in confidence.
The patient’s obligations may be listed as follows:
- To pay the price corresponding to the services provided
- So far as he or she is able, to give information about the symptoms of the complaint, the course of the illness and past treatment and experience in comparable matters
- To have the relevant documents, where held, available at the time of the medical intervention
These items are capable of expanding according to the nature of the relationship and constitute the core of the principal obligations to perform.
Types of Hospital Admission Contract
The relationship termed the patient admission or hospital admission contract creates a structure that imposes more than one obligation to perform on the parties and is regarded in law as being of a “mixed” nature. Depending on the content of the contract, the hospital may be required, in addition to providing the diagnostic and treatment services the patient needs, to secure the patient’s stay in hospital and his or her medical care there, to meet the patient’s nutritional needs and to discharge the other obligations necessary for the operation and organisation of the hospital. The assessment below is built on the assumption that private hospitals stand on the “hospital” side of the contract. On that basis, the first distinction between the types is drawn according to whether or not the owner or operator of the private hospital also undertakes an obligation of “treatment” alongside the other obligations. Depending on the answer to that question, the contract is formed either as a complete (undivided) or as a partial (divided) contract.
The Complete Hospital Admission Contract
In this type the hospital undertakes both the diagnosis and treatment of the patient and a great many further and quite different obligations, such as the allocation of a bed, food and drink, cleaning, and even sales in the hospital canteen. As regards the medical treatment obligation forming the core of the relationship, the provisions on the contract of mandate contained in Articles 502 et seq. of the Turkish Code of Obligations No. 6098 apply.
Indeed, where there exists between the parties a contract of a mixed type having as its subject matter obligations of differing kinds, it is accepted that the provisions on mandate will govern those obligations that are not made subject to some other regime in the legislation. As for the remaining obligations, the provisions of the typical contracts apply by analogy to the extent that they are compatible with their nature; a service contract for cleaning services and a contract of sale for cafeteria services may be given as examples. Beyond all of this, hospitals, having a multi-layered and complex structure, are also subject to organisational obligations such as the selection and supervision of staff and the organisation and continuity of the general operation. A health service provider acting in breach of this obligation may incur liability in damages for having infringed its organisational responsibility. The example most frequently encountered in practice is the assignment of a person who is not competent in the work, that is to say who lacks the relevant expertise — in other words, the employment of staff who are not qualified.
In this type of contract the only party against whom the patient may establish liability in respect of the medical services themselves is the hospital undertaking.
On the other hand, if the parties share a common intention to that effect, or if the particular features of the case so require, the medical treatment obligation may be undertaken by a physician from outside the hospital. In such a case one speaks of the existence of two separate obligors in respect of that obligation, namely the hospital and the physician.
The Complete Hospital Admission Contract Formed Without a Physician’s Contract
Here the physician appropriate to the type of illness is designated by the hospital. The patient may be afforded the opportunity to choose from among several physicians proposed by the hospital. In this type no contract is formed directly between patient and physician; the obligation of diagnosis and treatment belongs not to the physician but to the hospital. The physician’s legal position consists in the status of an “auxiliary person” governed by Art. 100 of the Turkish Code of Obligations No. 6098. In this situation a patient who suffers harm on account of the medical treatment obligation may take proceedings against the hospital operator, irrespective of whether the harm arose from the conduct of the physician or of an auxiliary person. That said, where the physician’s conduct causing the harm at the same time constitutes a “tort”, the patient may also bring an action against the physician relying on Article 55 of the Turkish Code of Obligations No. 6098. Conversely, in this type of contract it is not possible for the physician to turn to the patient and make a claim arising from contract, such as a claim for the fee to be paid directly to him or her.
The Complete Hospital Admission Contract With a Physician’s Contract Added
In this type, while the hospital’s obligations such as providing a bed, food and drink and care services continue, liability also arises on the part of the hospital physician in respect of the medical treatment obligation; the hospital and the physician become jointly and severally liable. Where, by contrast, the physician has intervened in respect of the patient in order to discharge his or her own obligation independently of the hospital, and the patient has suffered harm in the course of that intervention, no action may be directed against the hospital operator on account of the physician’s conduct.
The Divided Hospital Admission Contract
In this type the hospital operator has undertaken the hospital care obligation so as to cover all of the patient’s needs falling outside medical treatment. The admission of the patient, the provision of meals, the safekeeping of belongings and the supply of ancillary medical support such as medication fall within the hospital’s sphere of responsibility. The most widespread manifestation of this type is where a physician who also practises his or her profession at that hospital admits to it a private patient coming from outside. Another situation frequently encountered in similar fashion is where a physician working without any attachment to the hospital, who has for some time been treating a patient on an outpatient basis, admits that patient to the hospital pursuant to a contract between the physician and the hospital operator and continues the treatment there. This type of contract also arises where the person admitted to hospital requests a physician from outside the hospital. In these manifestations the patient will most often have one contractual relationship with the hospital and a separate one with the physician.
The Outpatient Treatment Contract
The legal bond between a patient and health institutions that fall outside the scope of the Private Hospitals Act and provide outpatient treatment services only is termed the “outpatient treatment contract”. Although as a rule the provisions on the contract of mandate apply to this relationship, provisions belonging to other types of contract may also come into play to the extent that they are compatible with the nature of the obligation.
Relationships in the Nature of a Contract for Work
Finally, in applications such as aesthetic operations, dental prostheses and laser procedures, it is accepted that the physician assumes not only an obligation of diligence and loyalty but at the same time an undertaking as to result. For that reason contracts having as their subject matter relationships of this kind between physician and patient are characterised as a “contract for work”. Where in such a relationship the physician acts contrary to the undertaking as to result that he or she has assumed, liabilities such as the return of the price, a reduction in the price or a revision operation may arise within the framework of the provisions on warranty against defects.
For detailed information on actions arising from medical applications in the nature of a contract for work, such as aesthetic operations or dental prostheses, our note entitled “Action for Damages on Account of a Faulty Aesthetic Operation” may be consulted.
The Distinction Between Public and Private Hospitals
A further matter that is decisive as to the nature of the relationship between hospital and patient is whether the hospital is a private or a public one. The types of contract examined above have been explained on the footing that the health service provider is a private hospital.
Alongside state hospitals, university hospitals — including those attached to foundation universities — are also accepted as providing a public service. For that reason university hospitals too are treated as public health institutions. In such a case what is involved from the patient’s standpoint is “benefiting from a public service”, and the relationship is dealt with within the framework of administrative law. In other words, it is accepted that there is no contractual bond between a public hospital and the patient. On that basis, a patient who suffers harm on account of an act of a physician who holds the position of a public official and which constitutes a service fault may bring a full remedy action against the administration before the administrative courts. If, as a result of the proceedings, the administration is required to pay damages to the patient, the sum paid may be recovered from the physician concerned by way of recourse.
As regards the actions that may be brought on account of medical malpractice, our notes bearing the following titles may also be consulted:
- Action for Damages on Account of Medical Error (Malpractice)
- Criminal Proceedings on Account of Medical Error (Malpractice)
- Liability in Damages for Faulty Medical Interventions Carried Out in Private Hospitals
- Liability in Damages for Faulty Medical Interventions Carried Out in State Hospitals
- Liability in Damages for Faulty Medical Interventions Carried Out in University Hospitals
Independent Legal Assessment
In the hospital admission relationship, the real question that determines the fate of a dispute is upon whom the medical treatment obligation lies. Whether the contract was formed as a complete or a divided one; whether the physician is to be treated as an auxiliary person or as an independent obligor; and consequently whether the action is to be directed against the hospital, the physician or both, all depend on that determination. In practice, directing the action against the wrong party can result in the case being lost without the merits ever being reached.
The second decisive threshold is whether the service provider has public legal personality. Since no contractual relationship is accepted in public hospitals, the dispute is taken to the administrative courts; this means that the branch of the judiciary with jurisdiction, the procedure to be followed and the applicable time limits all change from the outset.
The matters to which priority should be given in a concrete file are as follows:
- Collecting the documents signed at the time of admission to hospital, in that they demonstrate the scope of the contract
- Establishing by documentary evidence whether the physician who undertook the treatment was on the hospital’s staff or came from outside
- Directing the action against the correct party according to whether the contract is complete or divided
- Determining at the outset, by reference to whether the institution is private or public, whether the matter falls to the civil or the administrative courts
- Assessing separately, in the case of aesthetic interventions, the claims under the warranty against defects peculiar to the contract for work
- Examining, from the hospital’s standpoint, shortcomings giving rise to organisational responsibility by reference to the competence of staff
Independent Legal provides advisory services in the field of health law in disputes arising from the hospital admission relationship, from the characterisation of the contract through to the conduct of litigation.
This note has been prepared for general information purposes. In order to avoid any loss of rights, it is advisable to obtain legal support in the field of health law before taking any step.