University hospitals are public healthcare institutions which on the one hand provide healthcare to patients and on the other host medical education. The interventions carried out in these institutions serve the protection of public health and the recovery of the patient. That said, as with every medical intervention, the procedures performed here carry certain risks. Where errors arising in such interventions cause harm to the patient, the question of legal liability comes into play.
Under Article 129 of the Constitution, the obligation to pay damages arising from harm caused by public officials in the performance of their duties is placed directly on the administration. Under this provision, in cases of medical malpractice occurring in university hospitals the action is directed not at the physician or the healthcare personnel but at the administration. Comprehensive explanations concerning full remedy actions claiming damages are set out in our study entitled “Liability in Damages for Medical Malpractice in State Hospitals”, and in order to avoid repetition this text will address the essential points of the subject.
The Legal Position of State and Foundation University Hospitals
State university hospitals. These institutions are, as with state hospitals, subject to the supervision of the state in the delivery of healthcare. The physicians serving within them hold the status of civil servants, and the administration is held liable for harm arising from the procedures they carry out. For this reason the professional liability of physicians acquires importance in both its individual and its institutional dimension.
Foundation university hospitals. These hospitals fall within the scope of the Regulation on Private Hospitals No. 24708. The legislative provisions concerning the operation of private healthcare institutions therefore also find a field of application in respect of foundation university hospitals.
The medical liability of foundation university hospitals covers the obligation to pay damages arising towards patients on account of errors and omissions. Liability for such harm is, however, determined within the framework of administrative provisions. For although foundation university hospitals are subject to the legislation on private healthcare institutions, foundation universities are by law legal persons governed by public law. For this reason administrative provisions are applied to the liability of such hospitals arising from medical procedures.
Republic of Türkiye, Court of Cassation, Assembly of Civil Chambers, Case No. 2014/13-566, Decision No. 2015/1339, 13.5.2015
“It is legally impossible to treat the hospitals of foundation universities — which are indisputably established by law as legal persons governed by public law and which provide a public service — differently from the hospitals of State universities.”
The Legal Relationship Between the University Hospital and the Patient
The Nature of the Relationship
Physicians serving in state university hospitals stand in the position of public officials, and the healthcare provided in these institutions is addressed within the framework of public law. Foundation university hospitals, although outwardly giving the impression of private hospitals, hold the status of legal persons governed by public law and are subject to a similar legal regime.
The Bond Between the Patient and the Physician
No contractual relationship is established between the patient and the physician in university hospitals. The physician performs their activities in respect of the patient towards the state or towards the university administration; legal liability therefore belongs not to the physician personally but to the administration.
The Liability of the Administration
A service fault arising in a university hospital places the administration directly in the position of the party liable. The injured patient may bring a full remedy action directly against the administration. The administration may in turn seek recourse against the physician who caused the harm, in proportion to their fault, for the damages it has paid.
Liability Founded on Service Fault
Deficiencies in the Establishment and Operation of the Service
The healthcare service not being provided at all, being provided late, or being poorly operated are matters that directly affect the patient’s health. In situations of this kind a full remedy action may be brought against university hospitals.
Faulty Medical Practices
The liability of the administration also arises in respect of harm caused by practice errors such as an incorrect diagnosis, treatment conducted faultily, or information left incomplete.
Strict Liability
In certain situations in which the patient has suffered harm, liability may arise even where there is no intent or negligence on the part of the administration. Under the risk principle, redress may be claimed for extraordinary harm of a special nature occurring during a medical procedure.
Grounds Removing or Reducing Liability
The liability of the administration does not arise in full in every case. Situations such as the presence of force majeure, the fault of a third party, or the patient’s own fault may mitigate liability or remove it altogether.
Actions That May Be Brought Against University Hospitals
Full Remedy Action Claiming Pecuniary Damages
A patient who has suffered harm as a result of a faulty intervention carried out in a university hospital may claim pecuniary damages before the administrative judiciary. This action is aimed at making good the economic losses suffered by the patient or their relatives as a result of the medical error, and it covers different heads of loss according to whether the patient has died or has suffered bodily harm.
Where the patient has died: Funeral expenses incurred for the burial, all medical expenditure such as medication and hospital charges relating to the course of treatment before death, and the loss of income arising from the death may be claimed by way of pecuniary damages. In addition, those who received material support from the deceased have the right to claim compensation for loss of financial support.
Where the patient has suffered bodily harm: All the medical expenditure incurred during the course of treatment forms the subject of damages. Furthermore, the income that could not be obtained because of the medical error, together with the harm arising from the impairment of the economic future through the adverse effect on the patient’s professional career, may also be claimed.
Full Remedy Action Claiming Non-Pecuniary Damages
The aim of an action for non-pecuniary damages is to redress the emotional pain and distress experienced by the patient or their relatives on account of medical malpractice. This claim arises where an undesirable outcome has emerged in the patient’s health. Where the error has led to the patient’s death, their family may likewise claim non-pecuniary damages. In determining the amount to be awarded, the court awards damages “in an appropriate sum”, having regard to the gravity of the incident and the non-pecuniary loss sustained.
The Procedure in Full Remedy Actions
Claims for damages arising from medical malpractice in university hospitals are in the nature of a full remedy action and are heard before the administrative judiciary.
The Mandatory Administrative Application
Where harm has been suffered on account of a faulty intervention carried out in a university hospital, an application must be made within the prescribed period to the rectorate of the university to which the healthcare institution concerned is attached. This application must be made within 1 year of the date on which the harm became known, and in any event within 5 years of the date of the incident. The application must request that the applicant’s rights be satisfied. Where the claim is rejected in whole or in part, the period for bringing the action begins to run from the date on which the decision of rejection was served. Where the administration gives no reply within 30 days, recourse to the courts may be had from the expiry of that period.
Where a full remedy action is brought before the civil judiciary rather than the administrative judiciary, the action is dismissed for want of jurisdiction. In respect of actions dismissed for want of jurisdiction, no separate requirement of an application to the administration is imposed.
Parties to the Action
- Capacity of claimant: Where the patient harmed as a result of the intervention is alive, the right to bring the action belongs to them personally. Where the patient has died, this right passes to their relatives and those persons acquire the capacity of party.
- Capacity of respondent: A full remedy action founded on medical malpractice may be directed only at the administration concerned. Where the faulty procedure took place in a university hospital, the action is brought against the rectorate of the university concerned; since universities have legal personality, the university administration is held directly liable.
Proving the Error
The obligation to prove that there was a fault in the healthcare provided by the administration, that the service was not duly performed, or that it was not performed at all, falls on the patient. The administration is in turn obliged to establish that it conducted the public service as required. At this stage the assessments made by court-appointed experts and the medical records play a decisive role in determining whether the intervention was faulty.
Time Limits
Time limits must be followed scrupulously in actions to be brought on account of medical malpractice; otherwise rights may be lost. Where the application to the administration is rejected in whole or in part, the period for bringing the action is 60 days from the act of rejection, and where no reply is given within 30 days, 60 days from the date on which that period expired.
Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: In full remedy actions to be brought on account of medical malpractice in university hospitals, jurisdiction belongs to the administrative courts.
Court with territorial jurisdiction: In full remedy actions, territorial jurisdiction is conferred on the administrative court of the place where the service was performed or the act was carried out.
General Assessment
The legal framework of liability for medical procedures carried out in state and university hospitals serves as a safeguard protecting individuals’ right to benefit from healthcare. The administration’s obligation to reduce to a minimum the risks that may arise during the delivery of the service is the natural consequence of a conception of public service that has regard to the general interest of society. This approach both increases the effectiveness of the healthcare system and contributes to the protection of patients’ rights. The administration is not merely a structure that delivers a service but also an actor bearing responsibility towards society, and it must take care to discharge its legal obligations in the field of healthcare.
Independent Legal Assessment
In files concerning university hospitals, the loss of rights most frequently encountered stems not from the merits but from procedure. Omitting the mandatory administrative application leads to the file being concluded without being examined at all. Bringing an action before the civil judiciary in the mistaken belief that foundation university hospitals are private hospitals is likewise a common error; foundation universities are in fact legal persons governed by public law.
The second critical point is establishing the service fault. Since the debate is most often conducted through the expert report, supporting objections to that report with technical grounds directly affects the outcome.
The headings to be attended to in a specific file are as follows:
- bearing in mind that the dispute will be addressed before the administrative judiciary regardless of whether the hospital is attached to a state or a foundation university
- diarising the one-year application period running from the harm becoming known and the five-year period running from the incident
- where no reply is given to the application made to the rectorate, following the sixty-day period for bringing the action after the thirty-day period
- directing the action not at the physician but at the university, which has legal personality
- having the heads of pecuniary loss calculated separately, including loss of financial support and impairment of the economic future
- compiling the medical records and expert reports from the outset in a manner that will support the allegation of service fault
Independent Legal provides advisory services and conducts litigation in administrative application and full remedy action proceedings concerning medical malpractice occurring in public healthcare institutions.
This text has been prepared for general information purposes. In order to avoid the loss of rights, it is advisable to obtain legal support in the field of health law before taking any step.