Aesthetic surgery denotes the whole body of surgical and medical applications undertaken in order to improve, rejuvenate or beautify a person’s outward appearance. These procedures arise for the most part not from any medical necessity but from the individual’s own choice, and are aimed at a deliberate change in physical appearance. As in every field of medicine, however, the possibility of complications and the risk of faulty application are present here too. Operations that do not produce the hoped-for result, or that turn out badly, cause personal harm and equally give rise to legal claims.
The legal remedy available to a person whose aesthetic expectations have not been met as a result of a negligent procedure is an action for damages arising from an error in aesthetic surgery. Failure to achieve the appearance promised, faulty performance of the procedure, or adverse developments during the process may cause the person concerned non-pecuniary harm as well as pecuniary loss. Where this occurs, bringing an action against the surgeon who performed the operation or against the healthcare establishment where it was carried out enables the loss suffered to be made good. Below we examine how such an action is brought, the conditions required and the heads of damages that may be claimed, and consider how rights may be protected where harm arises from an aesthetic procedure.
Definition and Types of Aesthetic Medical Procedures
The concept of an aesthetic medical procedure covers the surgical and medical operations a person chooses in pursuit of individual goals of beautification, rejuvenation or improvement of appearance. Not being matters of necessity, these applications concern changes made at the request of the person concerned and are carried out on aesthetic grounds. Such procedures may be grouped under two headings: those directed purely at beautification, and those of a therapeutic character that afford both aesthetic and functional benefit.
Procedures for Cosmetic Enhancement
The applications in this group are aimed at improving a person’s physical appearance and fall largely within the field of aesthetic surgery. Nasal surgery, also known as rhinoplasty, facelifts and fat removal (liposuction) are typical examples of this category; all are carried out at the request of the person concerned. There is no medical necessity for such procedures, the decisive factor being the aesthetic expectation alone.
Aesthetic Procedures with a Therapeutic Purpose
The procedures in the second group offer a functional gain as well as an improvement in appearance. The correction of congenital anomalies or of defects caused by trauma does not merely improve outward appearance but also raises the person’s quality of life. By way of example:
- Correction of congenital deformities: Where congenital anomalies such as a cleft lip and palate are corrected in both aesthetic and functional terms, the person’s appearance improves and daily life becomes easier.
- Repair of deformities caused by trauma: The correction of defects arising after an injury or accident contributes to the person’s physical and mental well-being beyond the improvement of appearance.
The Legal Character of the Relationship Between Surgeon and Patient
Therapeutic procedures carried out by doctors at private healthcare establishments are, as a rule, treated within the framework of a contract of mandate. The provisions on mandate are applied to disputes arising out of procedures of that character. The relationship of mandate imposes on the doctor a duty to act carefully and diligently towards the patient and to conduct the course of treatment scrupulously. What is undertaken here is not the attainment of a particular result but the performance of the work with the requisite care.
In aesthetic procedures the picture changes; the principal purpose is not to treat but to meet the patient’s aesthetic expectations. The surgeon undertakes to achieve a result corresponding to the demands and expectations expressed by the person concerned. Procedures of an aesthetic character are for this reason characterised in law as a contract for work. What is decisive under a contract for work is the production of the result undertaken. Where the expected outcome is not achieved or the expectation is not met, the patient may turn to the doctor or the healthcare establishment and seek to hold them liable.
The Contractual Obligations of the Aesthetic Surgeon
In order to achieve the result sought by the patient, the surgeon must discharge a series of obligations. These obligations are decisive both for the patient’s safety and for the patient’s satisfaction:
- Making an appropriate diagnosis: A correct diagnosis must be reached by assessing the patient’s state of health together with the patient’s requests.
- Selecting a safe method: The surgeon must choose the method that is at once the most effective and that will not endanger the patient’s health.
- Information and consent: Before the operation, how the procedure will be conducted, the consequences it may produce and the risks it involves must be explained in detail, and the patient’s consent must then be obtained.
- Keeping within the limits of consent: The surgeon may carry out only the procedures consented to; it is not open to him to go beyond the scope of the consent previously given.
- Undertaking the result: An aesthetic surgeon has undertaken to achieve the result the patient wants. Where that result is not attained, the patient may have recourse to legal remedies.
- Performing the procedure personally: Since the surgeon’s expertise and experience form the essence of the relationship, he must carry out the procedure in person unless otherwise agreed.
- Care and loyalty: The patient’s interests must be observed throughout, and the surgeon must display a careful and loyal attitude.
- Avoiding unnecessary risk: The necessary precautions must be taken so as not to endanger the patient’s health, and needless risks must not be run.
- Protection of privacy: Aesthetic procedures fall within a person’s private sphere; information belonging to the patient must be kept confidential and must not be shared with third parties without permission.
Contractual Liability in Aesthetic Operations
In aesthetic operations the bond between the parties arises from a contract formed by mutual consent. Where obligations are breached, the resulting liability is therefore assessed under the provisions on breach of contract.
Liability Arising from Breach of Contract
In contractual relationships both parties are bound to act in conformity with the rights and obligations they have assumed. For a breach to give rise to liability, the following elements must be present together:
- Conduct in breach: The surgeon or the patient must have acted contrary to an obligation provided for in the contract.
- Fault: That conduct must have arisen from carelessness or negligence.
- Loss: The patient must have suffered loss by reason of the breach.
- Causal link: There must be a direct relationship of causation between the negligent conduct and the loss that has arisen.
Where these elements are present together, the surgeon or the patient incurs liability arising from breach of contract.
The Contract for Work and the Risks Encountered
Contracts relating to aesthetic operations are, as a rule, of the character of a “contract for work”. Under this structure the surgeon undertakes to achieve a particular aesthetic result in accordance with the patient’s request, while the patient undertakes to pay the fee in return for that performance.
In practice the intended result is sometimes not achieved, or difficulties arise during the operation. Those difficulties generally stem from two sources:
- The patient’s constitutional characteristics: Some bodies react differently to aesthetic applications. Matters such as differences in skin colour, the formation of a permanent scar or the possibility of infection are regarded as complications arising from the patient’s own constitution and cannot be attributed to the doctor.
- The doctor’s fault: An incorrect diagnosis, faulty performance of the procedure, going beyond the consent given, disregard of medical standards or the choice of substandard materials are regarded as fault on the part of the doctor and fall within the concept of “medical malpractice”. In such cases the doctor’s civil liability, and where the conditions are met his criminal liability, may arise.
The Legal Treatment of Complications
Complications are treated as risks that cannot be foreseen, or that cannot be avoided even where they are foreseen. Where the doctor has exercised the requisite care and has informed the patient of those risks, he cannot be held liable for a complication that occurs. It is nevertheless mandatory that the possible risks be clearly conveyed to the patient before the procedure and that consent be obtained. Procedures carried out without adequate information having been given may be regarded as unlawful; in such a case the doctor’s civil and even criminal liability may arise.
Liability Based on the Provisions on Tort
When the doctor’s civil liability in aesthetic operations is pursued, reliance may be placed not only on the contract between the parties but also, under Art. 49 of the Turkish Code of Obligations No. 6098, on the provisions on tort. For liability in tort to operate, all of the following conditions must be present together:
- There must be an unlawful act,
- That act must rest on fault,
- Loss must have arisen as a result of the act,
- It must be possible to establish an adequate causal link between the negligent act and the loss.
Where the conditions listed are met, a patient who has suffered loss through the unlawful and negligent conduct of the doctor may have recourse to civil liability based on tort. In that event the injured person has, where the conditions exist, the opportunity to bring an action claiming pecuniary and non-pecuniary damages for malpractice.
Beyond this, where death or bodily harm has occurred as a result of unlawful conduct by the doctor amounting to a tort, the matter may be characterised under the Turkish Penal Code No. 5237 as an offence of omission or of negligence. In that event the doctor’s criminal liability also arises.
One point must be emphasised here: although an aesthetic procedure is an act directed at bodily integrity, where it is carried out with the patient’s consent and in conformity with the legal framework the element of unlawfulness falls away. In such a case the doctor bears no liability in tort.
When the Provisions on Agency Without Authority Apply
During an aesthetic operation a situation of importance for the patient’s health or overriding interest may arise. For reasons such as unconsciousness or the urgency of the situation, it may not be possible to obtain the patient’s consent. Where that occurs, the procedure to be carried out goes beyond the limits of the contractual relationship between the parties.
Where the surgeon acts without the consent of the person concerned but with regard to that person’s overriding interest, the provisions on agency without authority apply. Provided that the patient’s overriding interest has been observed, procedures carried out are regarded as lawful under Art. 24(2) of the Turkish Civil Code No. 4721. Since there is no unlawful act, no liability in tort arises on the part of the doctor either.
Medical Errors in Aesthetic Operations
Where the healthcare personnel involved in the diagnosis, procedure and treatment stages of aesthetic operations fail to meet professional requirements, depart from medical standards, lack sufficient knowledge and skill, or act negligently through inexperience, carelessness or want of diligence, medical errors may result. Errors of this kind are termed medical malpractice. The following may be given as examples:
- An incorrect diagnosis being made at the diagnostic stage
- The procedure being carried out by persons without authority, or the limits of specialist authority being exceeded during the application
- The person concerned not being adequately informed of the method and scope of the procedure and of the risks and consequences it may entail
- The requisite care not being exercised before, during and after the operation
- The limits of the consent given by the person concerned being exceeded during the procedure (the provisions on agency without authority being reserved).
- An incorrect or more burdensome method of treatment being chosen
Since medical malpractice gives rise to the civil liability of healthcare personnel, the making good of losses arising from faulty applications may be claimed.
In addition, where the statutory conditions are met, the criminal liability of the healthcare professional also arises.
Grounds Excluding or Mitigating Liability
In respect of losses arising from medical applications, the doctor’s civil liability rests essentially on fault. Claims for damages directed at a doctor on the ground of a faulty procedure are therefore conditional upon the loss having arisen from the doctor’s fault. In certain circumstances that liability may be mitigated or may fall away altogether; where liability is mitigated, the amount of damages payable may be reduced. If the loss does not arise from the doctor’s fault, no liability arises and no damages may be claimed.
Grounds Excluding Liability
At the root of a doctor’s liability lies negligent conduct, unlawful or in breach of contract, that has caused loss. Within that framework it must be possible to establish an adequate causal link, that is to say a reasonable relationship of cause and effect, between the negligent act and the loss that has arisen. In the following situations the doctor’s liability may not arise, or may come to an end, because that link is broken or cannot be established at all.
- Fault of the injured party: Where the primary fault of the person suffering the loss is of such gravity that it could of itself have caused the loss, and eclipses the fault of the doctor, the adequate causal link is broken and the doctor’s civil liability falls away.
- Force majeure: Extraordinary circumstances that cannot be foreseen, or that cannot be prevented even if foreseen, are regarded as force majeure. Where the unlawfulness or the breach of contract rests on such a cause, there is no adequate causal link between the doctor’s act and the loss. Even where the necessary precautions have been taken, the doctor’s civil liability cannot be invoked in respect of losses arising from force majeure.
- Legally permitted risk: Where the doctor has adequately informed the patient of the possible risks and complications before the procedure, has obtained informed express consent and has acted in accordance with the duty of care and with medical requirements, complications that occur are assessed as falling within legally permitted risk. Since the adequate causal link between the procedure and the loss is thereby broken, the doctor’s civil liability cannot be invoked.
- Fault of a third party: Where the primary fault of a person other than the injured party and the healthcare professional is of such a nature that it could of itself have caused the loss, and pushes the doctor’s fault into the background, the adequate causal link is broken and the doctor’s civil liability comes to an end.
Grounds Mitigating Liability
The doctor’s civil liability depends on his being at fault in respect of the loss that has arisen. In certain circumstances, however, that liability may be mitigated and the amount of damages reduced accordingly. For example:
- Contributory fault: Where the fault of the injured party has combined with that of the healthcare professional and contributed to the occurrence or the increase of the loss, the doctor’s civil liability is mitigated on account of that additional fault and the amount of damages is reduced.
Exemption Agreements
Medical applications must be carried out by healthcare professionals who are specialists in their field and authorised by law. Otherwise the application is regarded as unlawful.
Under Art. 115(3) of the Turkish Code of Obligations No. 6098, where a service requiring expertise may be carried out only by law or under a permit granted by the competent authorities, agreements made in advance to the effect that the debtor will not be held liable for slight fault are absolutely void. Exemption agreements concluded with a doctor are for this reason without validity.
Establishing Liability and the Rules of Proof
An aesthetic surgeon is expected to act in conformity with professional requirements, with the law and with the contract in discharging his obligations before, during and after the operation. Persons who contend that they have suffered loss through conduct of the surgeon in breach of those obligations may have recourse to legal remedies to have that loss made good. The loss in question may be pecuniary or non-pecuniary; pecuniary or non-pecuniary damages may accordingly be claimed on the basis of the aesthetic surgeon’s civil liability.
Before liability can be invoked, it must first be proved that the conditions are met. Since proof that the surgeon is legally liable for the loss will produce a result in favour of the injured person, the burden of proof lies, under Art. 190 of the Code of Civil Procedure No. 6100, on the party claiming damages. Accordingly, the person alleging loss must establish both the pecuniary or non-pecuniary loss and the fact that it arose from conduct of the surgeon in breach of his obligations.
At the stage of proof, various forms of evidence acquire importance, such as the character and content of the contract between the parties, written documents, medical reports, expert opinions, examinations by court-appointed experts and witness statements.
It should further be noted that the practice of the Court of Cassation and the prevailing view in the doctrine place the burden of proving that the patient was informed and that express consent was obtained upon the doctor.
Indeed, Art. 24(2) of the Turkish Civil Code No. 4721 contains the following provision:
Turkish Civil Code No. 4721 Art. 24(2)
“Every infringement of personality rights is unlawful unless it is justified by the consent of the person whose personality right is infringed, by a private or public interest of a higher order, or by the exercise of a power conferred by law.”
A procedure directed at bodily integrity carried out without the consent of the person concerned will constitute an infringement of personality rights and will be regarded as unlawful. When Art. 24(2) of the Turkish Civil Code No. 4721 and Art. 190 of the Code of Civil Procedure No. 6100 are read together, the conclusion is that the burden of proving that the patient’s informed express consent was obtained lies with the aesthetic surgeon.
Actions Available for Loss Arising from Aesthetic Procedures
Faulty procedures in aesthetic interventions are assessed within the scope of medical malpractice. Where there is malpractice, the doctor’s civil, criminal and administrative liability may arise together, according to which conditions are met.
In damages actions founded on malpractice, every application departing from medical standards at the stages of diagnosis, treatment and patient care is taken into consideration. An action may accordingly be brought on the basis of the aesthetic surgeon’s civil liability, seeking to have pecuniary and non-pecuniary losses made good. The action for pecuniary damages and the action for non-pecuniary damages may be brought independently of each other or advanced together in a single statement of claim.
Action for Pecuniary Damages
In actions brought for malpractice, the obligation to prove the loss falls on the claimant, that is to say on the patient. Where the amount of the loss cannot be determined with precision, the judge will make an assessment in the exercise of his discretion.
In an action for pecuniary damages the injured party may seek to have the losses arising under the following heads made good:
- Expenditure incurred for treatment
- Earnings that could not be obtained
- Losses arising from a reduction in, or the complete loss of, the capacity to work
- Losses arising from the impairment of economic prospects
Where the person concerned loses his life as a result of malpractice, the injured relatives of the deceased patient may claim the following heads:
- Funeral expenses
- Where death did not occur immediately, treatment expenses together with losses arising from a reduction in, or the loss of, the capacity to work
- The losses suffered by those deprived of the deceased’s support
Action for Non-Pecuniary Damages
The function of non-pecuniary damages is to offset to some degree the mental distress experienced by the injured person. The sum awarded cannot rise to a level that enriches the person concerned; it must remain proportionate to the non-pecuniary harm suffered. Non-pecuniary damages may be claimed where the following situations arise as a result of a faulty aesthetic procedure:
- The pain, grief and suffering felt by the injured party where bodily integrity has been impaired
- The pain, grief and suffering felt by the injured party or the relatives of the deceased in cases of serious bodily harm and of death
Assessing the circumstances, the judge will award non-pecuniary damages in an appropriate sum that will not lead to enrichment.
Procedure in Damages Actions for Errors in Aesthetic Procedures
It is of great importance that persons who intend to seek damages in respect of malpractice occurring in aesthetic procedures act in conformity with the rules of procedure. Failure to comply with procedural requirements in the course of proceedings may lead to the loss of rights and deepen the harm already suffered.
The Parties to the Action
Depending on the nature of the dispute, damages actions arising from malpractice may be brought by the injured person, by his legal representative or by his relatives, against the healthcare professional who carried out the faulty procedure or against the healthcare establishment.
Proof of the Error
In malpractice actions, proof of the faulty procedure is one of the principal factors determining the outcome. Under Article 190 of the Code of Civil Procedure No. 6100, the burden of proof lies on the party claiming damages. In other words, the injured person is under an obligation to establish that the doctor carried out a faulty procedure.
There is one exception to this rule. According to the settled case law of the Court of Cassation and the prevailing view in the doctrine, the obligation to prove that the patient’s consent was obtained lies with the doctor. When Article 190 of the Code of Civil Procedure No. 6100 and Article 24 of the Turkish Civil Code No. 4721 are considered together, the conclusion is reached that the doctor must prove that he discharged his duty to inform.
Limitation Periods
Damages actions brought in respect of faulty applications in aesthetic procedures undertaken for the purpose of beautification are subject, under Art. 147(6) of the Turkish Code of Obligations No. 6098, to a five-year limitation period. Where the surgeon’s error arises from gross fault, the limitation period will be applied as twenty years, as provided for by Art. 478 of the Turkish Code of Obligations No. 6098.
Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction:
Since the relationship between doctor and patient in aesthetic procedures is characterised as a contract for work, subject-matter jurisdiction to determine such disputes belongs to the consumer court.
Court with territorial jurisdiction:
In disputes arising from an aesthetic procedure, territorial jurisdiction is conferred on the court of the place where the operation was carried out.
As regards actions that may be brought in respect of medical errors, our notes under the following headings may also be consulted:
- Action for Damages for Medical Error (Malpractice)
- Criminal Proceedings for Medical Error (Malpractice)
- Liability in Damages for Medical Errors at Private Hospitals
- Liability in Damages for Medical Errors at State Hospitals
- Liability in Damages for Medical Errors at University Hospitals
Independent Legal Assessment
The real turning point determining the outcome of disputes arising from aesthetic procedures is the characterisation of the relationship as a contract for work. Whereas in a relationship of mandate only care is expected of the doctor, under a contract for work the attainment of a particular result is undertaken; that difference directly affects both the extent of liability and the court with subject-matter jurisdiction. In a significant proportion of files the argument turns not on the medical application itself but on the extent to which the duty to inform was discharged.
In practice, the preparation of informed consent forms in standard, general terms makes it harder for the doctor to discharge the burden of proof he bears. On the patient’s side, incomplete records of the position before and after the operation make it difficult to establish the amount of the loss. Preservation of evidence at the outset therefore affects every subsequent stage.
The matters to be given priority in a particular dispute are the following:
- Determining whether the procedure was for beautification or for therapeutic purposes, and identifying the type of contract accordingly
- Examining the content of the informed consent document to see whether it addresses the specific risks
- Distinguishing, by means of an examination by a court-appointed expert, whether the adverse outcome is a complication or malpractice
- Assessing on a file-by-file basis the general five-year period and the twenty-year period applicable in cases of gross fault
- Bringing the action before the correct court, having regard to the subject-matter jurisdiction of the consumer court and the territorial jurisdiction of the place where the operation was carried out
- Advancing the heads of pecuniary and non-pecuniary damages separately and with reasons in the statement of claim
Independent Legal provides legal advice and representation throughout, from the preservation of evidence to the conduct of proceedings, in damages disputes arising from aesthetic procedures.
This text has been prepared for general information purposes only. To avoid the loss of rights, it is advisable to obtain legal assistance in the field of health law before taking any step.