Failures occurring in medical interventions have today become a prominent topic of debate both in terms of the patient’s bodily integrity and in terms of the legal consequences they entail. Applications in which the patient suffers harm on account of a gap in the physician’s professional competence, carelessness, or a departure from the diligence expected of him or her are gathered in the medical literature under the heading of malpractice. This phenomenon, commonly referred to as medical error, takes various forms: the mistaken diagnosis of the illness, procedures carried out unnecessarily or contrary to due form, and omissions at the stage of continuing the treatment all fall under this heading.
In incidents of this kind it is not only the patient’s health that is placed at risk; in some cases the person’s quality of life is at stake and in others his or her life itself. A patient who has suffered harm, or that patient’s relatives, may bring an action for damages against the health personnel responsible and may equally pursue criminal proceedings. Below we examine the treatment in criminal law of physicians’ errors characterised as malpractice, how the investigation is conducted, and the essential points concerning patient rights.
The Concept of Medical Error (Malpractice)
Faulty medical applications that cause harm to the patient as a result of a health worker’s insufficient knowledge, want of care, or failure to discharge the duty of diligence are termed medical error. This phenomenon, denoted in medicine by the term malpractice, may emerge in different forms, such as an inaccurate diagnosis, the carrying out of unnecessary or defective procedures, and omissions throughout the course of treatment.
How Is Malpractice Defined?
Malpractice is a legal concept describing the defective applications that arise where a physician, in the exercise of the profession, departs from the care and diligence expected of him or her during treatment. Harm suffered by the patient on account of a gap in the physician’s professional knowledge, or of a failure to take a precaution that ought to have been taken, is addressed within this framework. The scope of the concept is not confined to faulty or inadequate treatment; errors made at the diagnostic stage, neglect of the duty to inform the patient, and the failure to put in place the necessary measures during the course of treatment are likewise assessed under the same heading.
What Does Complication Mean?
A complication denotes side effects that may possibly emerge during a medical procedure, that develop outside the physician’s will and control, and that are regarded as a consequence of the ordinary course of treatment. In medicine such outcomes are seen as being among the risks inherent in the intervention itself; so long as the physician has shown the requisite care and diligence in full, he or she is not held legally liable for such outcomes. Bleeding occurring during a surgical procedure, the emergence of a risk of infection, or the appearance of unforeseen side effects may be given as examples of a complication.
Where Do Complication and Malpractice Diverge?
The boundary between the two concepts is decisive for determining the physician’s obligations in the course of the intervention. Whereas a complication is seen as a risk that may unavoidably arise from the procedure, malpractice describes outcomes stemming from the physician’s fault or negligence. Where the physician fails to diagnose the complication that has emerged in good time, or fails to put in place the measures that ought to be taken against it, a situation that was initially in the nature of a complication turns into malpractice.
By way of example, bleeding developing during an operation is as a rule regarded as a complication; if, however, the physician fails to notice the bleeding in good time and does not intervene, one may then speak of malpractice. This dividing line performs an important function in determining both the legal liability to be imposed on the physician and the patient’s claim for damages.
The Physician’s Criminal Liability and the Provisions on Which It Rests
Acts Committed Intentionally, by Omission and by Negligence
Depending on the character of the act, medical malpractice may give rise to criminal liability on the part of the physician. As regards the Turkish Penal Code No. 5237, the assessment of physicians’ errors follows a different line according to whether the act was committed intentionally or negligently (by omission). Where the physician has neglected the care and diligence he or she ought to have shown during the intervention, negligence offences arise, whereas where the physician has harmed the patient knowingly and willingly, one speaks of an intentional act.
- Negligent acts: cases in which the patient suffers harm unintentionally as a result of the physician’s departure from the care and diligence he or she ought to have shown fall within this scope. Acts of this kind are characterised as offences committed by negligence and carry lighter sanctions by comparison with those committed intentionally. That said, the gravity of the omission and the outcome it produces may affect the quantum of the penalty. The development of an infection in the patient owing to a failure to comply with sterilisation rules during an operation is an example of this kind.
- Acts carried out intentionally: where the physician acts knowingly and willingly with a view to harming the patient, intent is in issue. Here the physician, although foreseeing the outcome the application will produce, nevertheless acts in acceptance of it. Carrying out a particular procedure notwithstanding the knowledge that the patient may be harmed is of this character and leads to far graver consequences in criminal law.
The Concept of Negligence and Its Effect on Criminal Liability
Criminal proceedings arising from medical malpractice are in practice conducted largely under Articles 85 and 89 of the Turkish Penal Code No. 5237. Of these, Article 85 of the Turkish Penal Code No. 5237 governs the offence of causing death by negligence, while Article 89 of the Turkish Penal Code No. 5237 governs the offence of causing injury by negligence. What both types of offence share is that the act must have been carried out with negligence. Negligence describes the situation in which the physician, notwithstanding possessing the professional knowledge and skill, causes harm to the patient by failing to show the requisite care and diligence.
For that reason the scope of criminal liability in physicians’ errors, and the course of the proceedings, take shape according to the relevant provisions of the Turkish Penal Code No. 5237 within the framework of the particular circumstances of the concrete case.
Causing Death by Negligence
In Turkish criminal law, an offence may be said to exist only where the material and mental elements of that offence are present together. In the offence of causing death by negligence, the material element is that the outcome of death has occurred. Where that outcome stems from the physician’s failure to show the requisite care and diligence, the mental element is likewise regarded as complete. In such an incident it must be demonstrated that the death occurred as a result of the physician’s omission or carelessness.
Article 85 of the Turkish Penal Code No. 5237: Causing Death by Negligence
Article 85 of the Turkish Penal Code No. 5237 governs the offence of causing death by negligence and thereby delimits its boundaries. According to that Article:
Turkish Penal Code No. 5237, Art. 85(1)
“A person who by negligence causes the death of another shall be punished by imprisonment for a term of two to six years.”
Under this provision, where the patient loses his or her life on account of the physician’s omission or carelessness, proceedings may be conducted against the physician in which a sentence of imprisonment for two to six years is prescribed. In these offences committed by negligence, criminal liability arises where the physician acts contrary to professional standards and the patient dies as a result.
The Elements Required for Liability to Arise
The imposition of a penalty on the physician for causing death by negligence depends on the death having stemmed from the physician’s failure to discharge the duty of diligence. A failure to act in accordance with the criteria required by the medical profession, and the resulting death, show that the mental element of the offence is made out. Physicians who neglect their professional obligations or fail to take the measures that ought to be taken may accordingly face criminal sanctions in respect of errors resulting in death.
Causing Injury by Negligence
Article 89 of the Turkish Penal Code No. 5237 governs the offence of causing injury by negligence and its aggravated forms. Causing injury by negligence arises where the patient suffers physical or mental harm on account of the physician’s omission or carelessness. The Article brings within its scope injuries arising from the physician’s neglect of professional obligations and failure to show the requisite diligence throughout the treatment.
Article 89 of the Turkish Penal Code No. 5237: Causing Injury by Negligence
Under that Article, acts that by negligence damage another’s body or impair another’s health are made subject to criminal sanction. The content of the provision is as follows:
Turkish Penal Code No. 5237, Art. 89(1)
“A person who by negligence causes pain to another’s body or causes the impairment of another’s health or capacity of perception shall be punished by imprisonment for a term of three months to one year or by a judicial fine.”
The aggravated forms of the act comprise the particular situations requiring the penalty to be increased:
Article 89(2) of the Turkish Penal Code No. 5237: where the injury has permanently weakened the function of one of the victim’s senses or organs, has caused the fracture of a bone, has impaired speech, has left a permanent mark on the face, has given rise to a condition endangering life, or has caused the premature birth of a pregnant woman’s child, the penalty in the first paragraph is increased by one half.
Article 89(3) of the Turkish Penal Code No. 5237: where the injury has caused the victim to contract an incurable illness or to enter a vegetative state, to lose entirely the function of one of the senses or organs, to lose the capacity of speech or of having children, to suffer a permanent alteration of the face, or has caused a pregnant woman to miscarry, the penalty is increased twofold.
The sanction prescribed for the basic form of the offence is imprisonment for three months to one year or a judicial fine. In the aggravated forms, the penalty is increased according to the gravity of the injury.
The Complaint Requirement and the Scope of Liability
In the offence of causing injury by negligence, the material element is that the injury has occurred. Where the injury has arisen from the physician’s failure to discharge the duty of care and diligence required by the medical profession, the mental element is likewise made out. Article 89 of the Turkish Penal Code No. 5237 has framed this offence, save in cases of conscious negligence, as an offence subject to complaint. Accordingly, if the injured person or that person’s relative does not lodge a complaint, no investigation is conducted. Where the act was committed with conscious negligence, the complaint requirement does not apply.
Additional Criminal Sanctions
Where causing injury by negligence has been carried out with conscious negligence, grounds increasing the penalty may come into play. In addition, under Article 53, paragraph 6, of the Turkish Penal Code No. 5237, the physician’s authority to practise the profession may be restricted for a period varying between three months and three years. Once the judgment becomes final, it becomes possible to prevent the physician from carrying on professional activity.
The Conduct of Criminal Proceedings on Account of Malpractice
The Complaint Stage
The act of causing injury as a result of a faulty medical intervention is, unless committed with conscious negligence, an offence subject to complaint. That is to say, the conduct of the investigation and the prosecution is conditional on a complaint by the victim or the victim’s relatives. Where, by contrast, the injury has arisen from the physician acting with conscious negligence, the public prosecutor may open an investigation of its own motion without any complaint being required.
Thus, where the physician, although foreseeing the risks inherent in the procedure to be carried out and the harm it may cause, proceeds with the intervention without taking the measures that would reduce those risks, he or she is regarded as having acted with conscious negligence. Here, although the outcome is not desired, a foreseen danger is carelessly accepted.
This situation points to a graver picture in criminal law; in offences committed with conscious negligence the public prosecutor may conduct an investigation of its own motion directly and without a complaint.
The Investigation Stage
How the investigation is conducted varies according to whether the physician works in a public institution or in a private health institution.
As regards physicians working in the private sector:
In respect of physicians working in private health institutions or in their own consulting rooms, the public prosecutor may conduct an investigation directly, upon a complaint or, where the conditions are met, of its own motion. In this case no authorisation requirement applies. The initiation of the process lies entirely within the prosecutor’s competence and there is no need for prior administrative approval.
In respect of physicians working in private health institutions, a complaint may be lodged and, in addition, an action for damages may be brought. For detailed information on this subject, our notes entitled Action for Damages on Account of Medical Error (Malpractice) and Liability in Damages for Faulty Medical Interventions Carried Out in Private Hospitals may be consulted.
As regards physicians working in public hospitals:
The conduct of a criminal investigation in respect of physicians holding the status of public officials is made subject to a requirement of administrative authorisation. This procedure is governed by Act No. 4483 on the Prosecution of Civil Servants and Other Public Officials. Before an investigation may be opened in respect of a physician working in a public hospital, the civil administrative authority must first grant authorisation to investigate. That authority assesses the preliminary examination reports and the other documents in the file; if it identifies the elements constituting a suspicion of an offence, it grants the authorisation.
As will be seen, whereas in the case of physicians working in the private sector the public prosecutor may act directly, of its own motion or upon a complaint, in the case of public-sector physicians an administrative stage is first set in motion and the obtaining of authorisation is made compulsory.
For claims for damages arising from physicians’ errors occurring in state hospitals, our note entitled Liability in Damages for Faulty Medical Interventions Carried Out in State Hospitals may be consulted.
What Happens If Authorisation Is Not Granted?
If the civil administrative authority does not grant authorisation to investigate, no criminal investigation may be conducted in respect of the public-sector physician. The victim or the victim’s relatives may, however, lodge an objection against that refusal of authorisation. The objection is examined by the Council of State or the administrative judicial authorities concerned, and whether the investigation is to be continued is decided at the conclusion of that examination.
The Prosecution (Trial) Stage
Where sufficient evidence has been obtained at the end of the investigation, the public prosecutor draws up an indictment and brings proceedings, and the file passes to the prosecution stage, that is to say the trial process. At this stage the court examines whether the allegations are well founded, the gravity of the physician’s fault and the legal aspects of the incident. The court before which the case is heard varies according to the nature of the offence:
- Causing death by negligence: as this is a graver type of offence, these cases are heard before the Assize Court.
- Causing injury by negligence: as this falls among the relatively less serious offences, these cases are dealt with before the Criminal Court of First Instance.
The court, assessing together the evidence gathered, the statements of witnesses and the reports of court-appointed experts, examines every aspect of the incident and determines whether the physician’s act constitutes an offence and, if so, the quantum of the penalty to be applied.
Independent Legal Assessment
In malpractice files, the criminal proceedings and the compensation proceedings most often run in parallel and the two processes feed one another. Since the reports of court-appointed experts obtained in the criminal file also directly affect the argument before the civil court as to the existence and degree of fault, planning at the very outset which avenue is to be pursued and in what order becomes decisive for the outcome. In allegations of causing injury by negligence in particular, missing the period for lodging a complaint may result in the file being closed without the merits ever being reached.
In establishing a roadmap in a concrete dispute, the following headings should be clarified as a matter of priority:
- Distinguishing, on the basis of the medical records, whether the outcome that emerged was a complication or a defective application
- Establishing whether the physician is a public official or a private-sector employee and determining accordingly whether the authorisation procedure is to be set in motion
- Assessing whether the act was committed with simple negligence or with conscious negligence, since the complaint requirement depends on that distinction
- Obtaining and safeguarding without delay the informed consent document, the discharge summary and the entire patient file
- Keeping the effect of developments in the criminal file on the claim for damages constantly in view
- Monitoring the period for objection where authorisation to investigate is not granted
Independent Legal provides advisory services and conducts litigation throughout the entire process, from the investigation stage to the appellate remedies, in disputes arising from health law, acting both for physicians and health institutions and for patients who have suffered harm.