Private hospitals and healthcare institutions are chosen by a great many patients who wish to receive care of a higher standard without contending with the congestion of public hospitals. Patients who pay considerable sums to these institutions expect their treatment to be conducted under the most favourable conditions. Even though healthcare is expected to be delivered at the highest attainable level, undesirable outcomes may nevertheless arise from time to time. While complications appearing during a procedure are as a rule counted among the natural risks of the intervention, medical malpractice is subject to an entirely different legal assessment and may impose liability in damages on the physician or on the healthcare institution.
In this briefing note we examine the rights a patient holds where medical malpractice occurs in a private hospital, how the compensation process unfolds, and the points that must not be overlooked along the way. Our aim is to assist in the informed use of the avenues available for asserting rights in the face of possible medical malpractice.
The Legal Nature of the Relationship Between the Private Healthcare Institution, the Physician and the Patient
In Türkiye, healthcare is delivered both by the public sector and by the private sector. Institutions outside the public system that assume the treatment of patients and provide diagnostic, therapeutic and nursing services are described as private healthcare institutions or private hospitals. The scope of their activities is drawn by the Private Hospitals Act No. 2219 and the Regulation on Private Hospitals No. 24708.
At the core of the service provided in private healthcare institutions lie the medical procedures carried out for the purpose of diagnosing, treating and preventing illness. The concept of a medical procedure covers a broad range of practices extending from surgical intervention to drug therapy. Because such interventions are directed at the human body itself, they are interwoven with the fundamental rights of the individual in the context of patients’ rights. For this reason, a medical procedure may be regarded as lawful only where the patient’s express consent, or their hypothetical consent, is present. Interventions carried out without consent, or contrary to the physician’s obligations, are treated as unlawful.
As regards physician error in public hospitals, our study entitled Liability in Damages for Medical Malpractice in State Hospitals may be consulted.
The Framework of the Physician–Patient Relationship in Private Institutions
The legal basis of the relationship between patient and physician is, as a rule, a medical services contract. Also referred to as a treatment contract, this relationship is governed by the provisions on the agency contract. The formation of a medical services contract is not subject to any formal requirement; it may arise even orally, and it determines the obligations the physician owes to the patient.
That said, physicians working in private healthcare institutions under an employment contract do not enter into a direct contractual relationship with the patient. In such a case the relationship between the hospital’s physician and the patient is assessed not under the provisions on agency but under the provisions on tort. Accordingly, the liability of a physician employed by the institution is addressed within the framework of the healthcare institution’s tort liability.
The Principal Forms of the Relationship Between the Institution and the Patient
The legal bond between private healthcare institutions and patients may be examined under three main headings:
- Tort relationship: This arises where the patient suffers harm as a result of unlawful acts of the institution or its staff. For the patient to claim damages, elements such as harm, unlawfulness and an adequate causal link must be present together.
- Contractual relationship (hospital admission contract): A written or oral contract is concluded between the patient and the institution which governs the treatment and care process and sets out the reciprocal rights and obligations of the parties.
- Agency without authority: This describes the institution intervening in order to protect the patient’s health in emergencies or where the patient is in fact unable to give consent. It arises where the patient cannot decide for themselves or where the intervention is unavoidable.
We examine these types of relationship in detail below.
Contractual Liability of Private Healthcare Institutions
Before contractual liability can be said to exist in medical procedures, the private healthcare institution must first have breached the contract concluded with the patient. Liability does not, however, arise on that basis alone; the conditions of fault, harm and a causal link must also be satisfied together. Where these conditions coincide, the institution may be required to make good the patient’s loss.
- Fault: The failure of the physician or the healthcare institution to exercise the requisite care during treatment constitutes fault; this is also the basis of liability.
- Breach of contract: Conduct of the institution contrary to its obligations of diagnosis, treatment, care, disclosure and obtaining consent gives rise to liability.
- Causal link: It must be possible to establish a direct connection between the harm sustained and the conduct in breach of contract.
- Harm: The patient must have suffered harm of a bodily or non-pecuniary nature.
Where all of the listed elements are made out, the private healthcare institution becomes liable to the patient and the patient may bring a claim for damages. In addition, the burden of proving the existence of the contract falls on the patient.
For details on the subject, our study entitled The Hospital Patient Admission Contract may be consulted.
Contractual Liability in Cosmetic Procedures
Since contracts for medical procedures of a general nature are in the nature of an agency contract, they contain no guarantee of a definite result. For this reason, even where the operation has been conducted with due care, the physician and the institution may escape liability if the desired outcome is not achieved. In cosmetic procedures, by contrast, the picture changes. Contracts concerning cosmetic procedures are regarded as contracts for work and carry the assurance that a particular result (for example, the intended aesthetic appearance) will be achieved. In interventions of this kind the institution or the physician is under an obligation to deliver the outcome that corresponds to the patient’s expectation.
The most conspicuous risk in this field emerges where the patient’s expectation and the result obtained do not coincide. Disputes of this nature may give rise to allegations that the physician breached the duty of care and that the contract was not duly performed. Patients may also be unable to gauge the risks fully before cosmetic procedures. It is at this point that informed consent becomes decisive; the physician is bound to inform the patient completely and accurately about all the risks the procedure entails.
For more detailed information on the subject, our study entitled Action for Damages for Cosmetic Surgery Error may be consulted.
Contractual Liability in Therapeutic Procedures
Contracts concerning therapeutic medical procedures create a relationship between the private healthcare institution and the physician on the one hand and the patient on the other, determining the rights and obligations of the parties. Under this type of contract the principal duties of the institution and the physician are to provide treatment in conformity with medical standards, to exercise the requisite care and to inform the patient. While the patient has the right to receive treatment and to decide within the framework of informed consent, both the institution and the physician bear the obligation to inform the patient accurately and to act with care throughout the process. Where medical standards are not observed, legal liability may arise for both the physician and the institution.
Treatment contracts are not subject to any formal requirement; they are concluded when the patient applies to the institution or the physician requesting treatment. The legal relationship arises of itself once the physician begins treatment. These contracts rest not on a guarantee of result but on the principle that the physician exercises the requisite care during the course of treatment. Furthermore, the patient’s consent to treatment must be obtained within the framework of informed consent.
Tort Liability in Medical Procedures
Tort liability does not rest on any contractual basis. Nevertheless, even where a treatment contract exists between the patient and the private healthcare institution, an unlawful act of the institution may be characterised as a tort. If, for instance, the institution has breached its duty of care and thereby caused the patient harm, both contractual and tort liability may arise together. In such a case the patient may frame the claim for damages according to whichever set of liability provisions they wish to rely on. For tort liability to arise, the four basic elements set out in Article 41 of the Turkish Code of Obligations No. 6098 must be present together:
- Fault: The element of fault is made out where there is conduct contrary to medical standards, negligence, or a failure to exercise sufficient attention and care. For the physician or the institution to be regarded as at fault in tort liability, the intervention carried out must fall short of accepted medical standards.
- Unlawful act: Where the act of the institution or the physician impairs the patient’s bodily integrity or other personality rights, unlawfulness is present. Interventions carried out without obtaining the patient’s consent, or otherwise than in conformity with standard medical practice, are of this nature.
- Causal link: The harm sustained by the patient must arise directly from the tort; that is, there must be a direct causal connection between the harm and the unlawful conduct.
- Harm: The patient must have suffered a bodily, psychological or economic loss during the course of treatment. A patient being left disabled by a faulty surgical procedure, or suffering harm requiring long-term treatment, may be assessed within this scope.
Liability Arising from Agency Without Authority
The concept of hypothetical consent underlies the relationship of agency without authority. This concept rests on the assumption that the patient would approve the intervention were they in a position to give consent, and it aims to protect the patient’s health from danger. A relationship of agency without authority arises between the private healthcare institution and the patient principally in three situations:
- Invalidity of the contract: Even where the contract between the patient and the institution is not valid, the existence of a relationship of agency without authority is accepted.
- The patient’s inability to declare their will: Where the patient is not in a position to express their will, the institution acts within the framework of agency without authority.
- An unforeseen complication arising during treatment: Where an unexpected complication develops in the course of treatment and the patient’s consent cannot be obtained, this relationship comes into play.
In medical procedures, agency without authority describes the situation in which the physician or the institution engages in conduct causing harm following interventions carried out without any bond founded on the patient’s will. This situation may give rise to legal consequences, and the institution or the physician may be held liable for the conduct in question.
Liability arising from agency without authority is addressed under three separate heads pursuant to Article 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 acting has done so in order to avert harm or the danger of harm faced by the principal, their liability is assessed by more lenient criteria. This provision narrows the field of liability under agency without authority.
- Full liability: Within the framework of agency without authority, the private healthcare institution is bound to exercise the care required for the patient’s health and safety. A breach of this duty gives rise to the institution’s full liability.
- Extended liability: Where the patient has not consented expressly or impliedly and the institution nonetheless acts to the contrary, the scope of liability widens. In such a case the institution is held liable even for harm arising from unforeseen events.
Strict Liability of Private Healthcare Institutions
Strict liability denotes a person being held liable for harm arising from an act even though they are not at fault. Following a tort occurring within a healthcare institution, the institution’s liability may arise even where it bears no fault in the incident. In that event the institution is subject, pursuant to Article 66 of the Turkish Code of Obligations No. 6098, to the provisions on the liability of a person who employs another.
Whether or not there is a direct contract between the institution and the patient, the hospital may be held liable for harm arising from the faulty conduct of the physicians and staff working within it. This liability requires the hospital to exercise the requisite care in selecting, assigning and supervising not only its physicians but all of its healthcare personnel.
Grounds Reducing or Removing Liability
Private hospitals and the physicians working in them may not be held liable in every circumstance for adverse outcomes arising during a medical procedure. In certain situations liability may be removed altogether or mitigated.
- Unforeseen event: This is the emergence of an unforeseeable, extraordinary situation despite the institution or the physician having exercised all requisite care. Such circumstances may lead to liability being removed in whole or in part. The appearance during a procedure of a rare complication that could not be predicted in advance may be assessed within this scope.
- Force majeure: Events developing outside the control of the institution and the physician which cannot be foreseen or prevented are regarded as force majeure. Natural disasters such as earthquakes, floods and fires, or epidemics, may limit liability or remove it entirely. Where the harm is unavoidable and could not be prevented, liability is mitigated.
- The patient’s own fault: Where the patient has suffered harm during the course of treatment because of their own faulty conduct, the liability of the institution and the physician may be reduced or removed altogether. Failing to comply with the physician’s instructions, acting in a manner that undermines the treatment, or disrupting the process are counted among the patient’s faulty acts and may lead to a reduction in liability.
- The fault of a third party: Where the harm has come about through the direct influence of a person outside the hospital, this may mitigate or remove the liability of the institution and the physician. In harm arising from the fault of a third party, such as an inappropriate intervention by a patient’s relative, this matter is taken into account.
Other Situations in Which Liability May Be Narrowed
The liability of the physician or the institution may be limited with the patient’s consent in circumstances such as complications disclosed in advance or emergencies. That said, the view that the liability of the institution or the physician should not be narrowed even in situations such as a state of necessity is regarded as the sounder one.
The Fate of Exemption Agreements
- As regards the fault of auxiliary persons: Pursuant to Article 116 of the Turkish Code of Obligations No. 6098, healthcare institutions may not exclude by prior agreement their liability for the fault of auxiliary persons.
- As regards the institution’s own fault: Under Article 115 of the Turkish Code of Obligations No. 6098, healthcare institutions may not conclude an exemption agreement even in respect of their slight fault. This prohibition stems from the close connection the subject bears to the right to life.
Actions That May Be Brought Against Private Healthcare Institutions
Action for Pecuniary Damages
An action for pecuniary damages is brought in order to make good the economic losses suffered by the patient or their relatives as a result of medical malpractice. The scope of the action covers different heads of loss according to whether the patient has died or has suffered bodily harm.
Heads of loss that may be claimed where the patient has died:
- Compensation for loss of financial support: Those who received regular material support from the deceased may claim damages because they will be deprived of that support. The compensation is calculated by taking into account the conditions under which the deceased would have continued to provide support had they remained alive.
- Funeral expenses: In the event of death, the expenditure incurred for funeral arrangements may be claimed.
- Treatment expenses: Where death did not occur immediately and the patient received treatment for a period, heads such as the cost of medication, bed charges, surgical expenses and the cost of treatment devices borne during that period may form the subject of the action.
- Losses arising from inability to work: Damages may also be claimed in respect of the periods during which the patient was unable to work and suffered a loss of income while alive.
Heads of loss that may be claimed where the patient has suffered bodily harm:
- Loss of working capacity: Where the patient has lost their working capacity because of the faulty practice, the resulting loss of income may be claimed as damages. Where working capacity has been removed wholly or in part, the loss of earnings is calculated and the compensation determined accordingly.
- Treatment expenses: All health expenditure borne during the recovery of a patient who has suffered bodily harm as a result of malpractice may be claimed by way of damages.
- Impairment of economic future: Medical malpractice may also adversely affect the patient’s future economic position. An inability to continue a professional career, or difficulties encountered in finding work, may form the subject of damages as harm arising from the impairment of the economic future.
Action for Non-Pecuniary Damages
Actions for non-pecuniary damages brought on account of medical malpractice seek redress for non-pecuniary losses such as the emotional pain, distress and grief experienced by the patient or their relatives. For non-pecuniary damages to be claimed it is sufficient that an undesirable condition has arisen in the patient’s health. Such damages arise not only in respect of the patient but also, where the conditions are met, in respect of the non-pecuniary harm suffered by their relatives.
Where the faulty intervention has led to the patient’s death, their family and relatives may likewise claim non-pecuniary damages. The psychological devastation, pain and grief experienced by the patient or their relatives are sought to be redressed to a degree through non-pecuniary damages. In determining the amount, the court awards damages “in an appropriate sum”, having regard to the gravity of the incident, the non-pecuniary loss sustained by the patient or their relatives and the distress felt.
For details on the actions for damages and criminal proceedings that may be brought on account of faulty medical procedures, our studies entitled Action for Damages for Physician Error (Malpractice) and Criminal Proceedings for Physician Error (Malpractice) may be consulted.
Procedure in Actions Arising from Medical Malpractice
Parties to the Action
Those who may bring the action: Where the patient has been harmed as a result of the intervention but has survived, the right to bring the action belongs to the patient personally. Where the patient has died, this right passes to their relatives and it is they who acquire the capacity of party.
Those against whom the action is directed: An action on account of medical malpractice may be brought against the physician, the hospital, or parties providing healthcare services such as a private practice. In practice the action is most often brought jointly against both the physician who carried out the intervention and the private hospital at which they work.
Proving the Error
Medical malpractice is a matter that must be proved. The patient is bound to establish that the harm sustained arises directly from the intervention carried out. In this process of proof, the assessments of court-appointed experts and the medical records play the leading role in determining whether the intervention was faulty.
Limitation Periods
The statute of limitations is of critical importance in actions brought on account of medical malpractice; overlooking these periods may result in the loss of rights.
- In tort liability: Where the relationship between the patient and the physician does not rest on a contract, the provisions on tort apply and the period for bringing the action is limited to 2 years. That said, given that in malpractice actions it may take time for the faulty act to be understood and noticed, a 10-year period running from the date on which the act was committed applies.
- In contractual liability: Where the relationship between the patient and the physician rests on a contract, the limitation period for claims arising from the contract is 5 years.
- In liability for agency without authority: No special limitation period is laid down for this type of liability. Claims arising from agency without authority are therefore likewise subject to a 10-year limitation period.
Court with Subject-Matter and Territorial Jurisdiction
Actions to be brought against private hospitals fall within the field of the civil judiciary and are heard before different courts according to the nature of the legal relationship between the parties.
Where liability is contractual:
In actions founded on contract, the Consumer Court of the place where the contract is to be performed will have territorial jurisdiction.
Where liability is in tort:
Where harm has arisen as a result of the faulty conduct of the physician or the institution, the provisions on tort come into play. In these actions the court with subject-matter jurisdiction is the Civil Court of First Instance. The courts with territorial jurisdiction are as follows:
- the court of the domicile of the physician or healthcare institution named as respondent;
- the court of the place where the tort occurred.
Where liability arises from agency without authority:
From time to time harm occurs as a result of an intervention carried out on account of an emergency or a situation of necessity, without any express contract between the patient and the physician or institution. In such a case the relationship between the parties is assessed within the scope of agency without authority. In these actions too the court with subject-matter jurisdiction is the Civil Court of First Instance. The following may arise as the court with territorial jurisdiction:
- the court of the place where the respondent is domiciled;
- the court of the place where the intervention was carried out.
Independent Legal Assessment
In claims for damages directed against private hospitals, the most decisive matter in practice is the legal bond under which the physician works with the institution. Whereas an institution may be held strictly liable, in the capacity of a person who employs another, for the act of a physician working within the hospital under an employment contract, the picture differs in the case of a physician who works in their own practice and receives only premises and equipment support from the hospital. Establishing this distinction correctly at the pleading stage forestalls dismissals arising from directing the action against the wrong respondent.
The second critical point is whether the claim is to be founded on contract or on tort. The legal ground chosen directly affects the court with subject-matter jurisdiction, the limitation period and the way in which the burden of proof is distributed.
In a specific file it is appropriate to address the following headings first:
- establishing by documentary evidence the working relationship between the physician and the hospital, and directing the action accordingly
- determining whether the intervention was therapeutic or cosmetic in nature, and thereby establishing whether an undertaking as to result exists
- examining the content of the informed consent form, the moment of its signature and its scope
- obtaining the patient file, the operation note, the discharge summary and the imaging records without delay
- assessing which of the different limitation periods attaching to contractual and tort liability is favourable to the file
- documenting the heads of pecuniary loss in a form suitable for actuarial calculation
Independent Legal provides advisory services and conducts litigation across the entire process in claims for damages directed against private healthcare institutions, acting for both patients and institutions, from preparation of the file through to objections to expert reports and the appeal stage.