Generally speaking, medical malpractice, also referred to as medical negligence, involves any act of ignorance, inexperience, or negligence by a doctor, any medical institution such as a hospital, clinic, or health centre, or any health professional that may cause injury to the patient, leading to misdiagnosis, wrong treatment, or inadequate handling of the patient.
A claim for medical malpractice compensation results from any medical intervention that has been carried out against the standards of medical practice during the diagnosis, treatment, or care phase, and further causes damage to the patient.
The concept of medical malpractice or medical negligence is generally defined in Article 13 of the Turkish Medical Association [TMA] Code of Medical Ethics as follows:
Harm caused to a patient due to ignorance, inexperience, or negligence is considered "poor medical practice."
Prerequisites for Compensation Claim Due to Medical Malpractice in Turkey
Medical intervention involves certain risks and thus requires the patient's informed consent. For example, a doctor cannot operate on his patient, even when such an operation is in the best interest of the latter, without his consent. On the other hand, any treatment which a patient has consented to must be done with due care and by the accepted and recognized professional rules commonly known as "medical standards." Any medical act done not in conformity with such standards constitutes malpractice.
The medical malpractice or, in general, as it is known, 'doctor error' is elucidated in the established rulings of Turkish Court of Cassation and Council of State as follows:
Any medical intervention lacking the requisite care according to medical standards and experience, and therefore appearing unsuitable for the case at hand is a case of malpractice. In other words, it is defined as medical error-failure to act in a manner consistent with standard procedure in diagnosis and treatment, or failure to possess the necessary knowledge or skills, or improper treatment. According to this principle, liability for errors or omissions follows the course of "fault-based liability". In view of the legal duty of the doctor, the standard is of a skilled and experienced specialist. He must objectively foresee injury to the health of the patient from the ordinary course of events. He must subjectively be able to foresee injury to the health of the patient from the ordinary course of events in light of his personal experience, skill and professional knowledge as well as the quality and level of his training.
This leads us to the question of a duty of care. It normally occurs in three significant spheres of the doctor's breach of his duty of care: First, during diagnosis, choosing of treatment, its performance, or follow-up care. Second, during information given to the patient and case history taken, known as anamnesis. Third, during clinical organization, such as ensuring the medical staff are qualified and sufficient, and the interaction among doctors, i.e. consultation. These three types of errors can, respectively, be placed under treatment errors, informational errors, and organisational errors-both coming under the heading of "medical malpractice."
A doctor's intervention must be carried out with care and in accordance with the relevant medical standards and expertise, tailored to the specific case. Medical standard breaches, which may give rise to a compensation claim in the doctor-patient relationship, can occur in the following instances:
During the diagnostic stage;
During the treatment stage (e.g., inadequate treatment, incorrect choice of treatment method);
During the organisational stage (e.g., inadequate staffing or failure to ensure proper consultation).
The errors in the diagnostic phase may be related to incomplete examination of patients, not taking appropriate history or conducting necessary tests, or other such oversights. An example is the failure to inquire into any possible allergies a patient could have prior to administering certain drugs.
In the stage of treatment, the Turkish Court of Cassation has defined the following as examples of medical malpractice: not performing the required medical treatment, leaving a foreign object inside the patient during a surgical operation, using the wrong method of treatment, using the wrong type of medication, or failing to comply with hygiene rules.
In the organisational phase, as per the same rulings, negligence in the precautions required by the principle of good faith (Art. 2 of the Turkish Civil Code) based on the patient’s condition, disease type, and severity, is also deemed malpractice. This includes ensuring the presence of qualified personnel and facilitating consultations between doctors when necessary. Failure to fulfil organisational responsibilities can result in liability for the healthcare institution, in addition to the doctor’s liability for diagnosis or treatment errors.
There is no doubt that a patient who suffers harm due to errors in diagnosis, treatment, or organisation has the right to bring a compensation claim for medical malpractice. Two particular aspects of malpractice claims require emphasis:
Consultation: Negligence in conducting a consultation where such is indicated or failure to act upon the advice given by the consulting doctor upon consultation may give rise to liability in malpractice. A consultation denotes that the attending physician calls upon other specialists either for an opinion or assistance in diagnosing, treating, or observing a patient. In case a physician proceeds without consultation with the right type of specialist when such is indicated, or without acting in pursuance of what the consultation has yielded, he may be liable under claims of malpractice.
Stabilization means bringing a patient into a stable condition and maintaining the balance of his body intact, without allowing further deterioration. That would mean, in other words, the stabilization of the vital functions of the patient by offering him medical support until such time when more advanced interventions are carried out. The emergency medical personnel are obliged to do all such services to stabilize a patient irrespective of whether the latter has social security status or not (YCGK-Decision 2017/278). A premature discharge or transfer of a patient before stabilization may amount to malpractice liability.
Legal Grounds for Doctor's Liability in Malpractice Claims
Malpractice claims are based on various legal grounds, including tort, breach of contract, agency without authority, or service failure. When bringing a malpractice claim against a public institution, the legal basis is service failure. When filing against private individuals or legal entities, the grounds are either tort, breach of contract, or agency without authority. The legal basis for malpractice compensation claims varies depending on the nature of the medical intervention:
1. Tort-Based Malpractice Claim: A tort occurs when a person, through an unlawful and culpable act, causes harm to another outside of a contractual relationship (Turkish Code of Obligations, Articles 49 et seq.). Any intervention by a doctor that is contrary to medical standards is generally considered a tort. Tort liability arises from the harm caused by the doctor’s negligent actions. However, in some cases where there is no contractual relationship between the patient and doctor, liability can only be established based on tort. For example, if a doctor refuses to treat a patient in an emergency room of a private hospital, they may be held liable under tort law, as there is no pre-existing contractual relationship with the patient.
2. Breach of Contract in Malpractice Claims: Medical intervention, except in emergencies or when it is necessary to extend the scope of surgery, requires a contractual relationship between the doctor and patient. Despite this contractual relationship, the patient has the option to base their malpractice claim on either tort or breach of contract. Two types of contracts may arise between the patient and doctor depending on the nature of the medical intervention:
- Agency Contract: Typically, the doctor-patient relationship is regarded as an “agency contract” (Turkish Code of Obligations, Articles 502 et seq.). Under this contract, the doctor is not responsible for achieving a positive outcome but must exercise care and perform the medical services diligently. A breach of this duty of care can lead to liability for damages caused by negligent acts.
- Contract for Work and Services: Medical interventions aimed at creating a specific result in the patient’s body (such as inserting prosthetics or performing cosmetic surgery) fall under the category of a “contract for work and services” (Turkish Code of Obligations, Articles 470 et seq.). For example, placing a prosthesis, performing cosmetic surgery, or providing other aesthetic treatments would be subject to this contract, whereby the doctor is responsible for achieving a specific outcome.
This comprehensive framework allows patients who suffer harm due to medical malpractice to pursue compensation through legal action based on the relevant circumstances and legal grounds.
Malpractice (Doctor Error) Compensation Claims: Jurisdiction of Courts
In cases where medical malpractice arises from a contract for services or an agency agreement, the competent court is designated as the “consumer court” under Article 3/1-L of the Consumer Protection Law No. 6502:
- Claims for compensation (both pecuniary and non-pecuniary) against independent doctors are heard in consumer courts.
- Similarly, consumer courts have jurisdiction over compensation claims filed against private hospitals operated by companies, partnerships, or individual proprietors.
For compensation claims (both pecuniary and non-pecuniary) related to medical malpractice involving public hospitals or healthcare institutions, the competent court is the “administrative court”:
- In the case of medical malpractice committed in public hospitals, state hospitals, research hospitals, or psychiatric hospitals, the courts are empowered to hear and try full remedy actions-claims for both pecuniary and non-pecuniary damages.
The same shall also be valid and applicable in respect of claims that arise as a result of medical malpractice cases that occur in hospitals of foundation or state universities and family health centres, or any other public healthcare organizations.
It is important to note that in cases where a doctor’s personal fault, distinct from a service-related fault, is involved, the claims for damages are heard in general judicial courts (HGK Decision 2001/643).
For claims filed against the insurance company because of a doctor's malpractice, the relevant court is "commercial court of first instance" according to Article 4/1-a of the Turkish Commercial Code No. 6102:
- Regardless of whether the parties involved are merchants, legal cases arising from matters regulated by the Turkish Commercial Code are considered absolute commercial cases (Article 4/1-a of the Turkish Commercial Code No. 6102). A compensation claim against an insurance company, which insured the doctor’s malpractice, will be governed by Articles 143 and following of the Turkish Commercial Code. As the insurance contract between the doctor and the insurance company is deemed an absolute commercial transaction due to the company’s commercial activities, the commercial court of first instance is the competent court for hearing pecuniary compensation claims against the insurance company.
Statute of Limitations for Filing Pecuniary and Non-Pecuniary Compensation Claims in Medical Malpractice Cases
For example, claims against public hospitals, such as state hospitals, university hospitals, research hospitals, and family health centres, on grounds of service-related defects must be made in writing to the relevant administrative authority within one year from the date when damage and doctor's fault have been determined and in any case, within five years from the date of the incident, regulated under Article 13 of Administrative Procedure Law No. 2577. In case the administrative authority only partially or fully rejects the claimant's application, a full remedy action-for compensation due to malpractice-shall be filed before the administrative court within 60 days from the date of notification of such rejection. He would then file an action of a full remedy within the limitation period running from that date on, in case the authority fails to respond to his request within 30 days. Article 11 of the Administrative Jurisdiction Procedures Law provides that in case the response should take place within 30 days from the date of filing the application, the latter is considered refused upon the date of expiration of this period, whereby the limitation period to file an action of a full remedy starts running from this date. It must, however be emphasized that the particular limitation periods permitted in criminal law do not apply when cases are filed against administrative bodies.
As far as malpractice claims against a private hospital or doctors for tort are concerned, the limitation period is two years from the time when the injured party knew about the damage and the liable party, whichever is earlier, and in any event ten years from the date when the incident occurred. However, if the claim arises from an act requiring a longer statute of limitations under criminal law, then the statute of limitations applicable to criminal proceedings shall apply, in accordance with Article 72 of the Turkish Code of Obligations No. 6098.
Where a compensation claim based on the agency agreement is filed against private hospitals or doctors in consumer courts, Article 147/5 of the Turkish Code of Obligations No. 6098 stipulates that the statute of limitations shall be five years. To illustrate, in the case of a doctor or hospital leaving some foreign object inside the patient during surgery at a private hospital, the limitation period to file a claim for malpractice is five years.
With respect to statutes of limitation for the malpractice claims filed in consumer courts based on a contract for work, this also is five years under Article 147/6 of the Turkish Code of Obligations No. 6098. However, if the doctor is grossly negligent in carrying out the medical procedure, whatever be the nature of the service, statute of limitation extends to 20 years according to Article 478 of the Turkish Code of Obligations. These are services that include cosmetic surgeries, dental prostheses, and laser hair removal services.
For malpractice claims based on unauthorized agency, the statute of limitations was 10 years according to Article 146 of the Turkish Code of Obligations.
It follows that the statute of limitations applicable in criminal cases does not apply to claims for damages for loss of pecuniary advantage and non-pecuniary damage arising based on breach of contract.
If you require legal assistance regarding medical malpractice claims or have any questions about your rights, please do not hesitate to contact CCS Law for expert guidance.
Disclaimer: This article is intended for informational purposes only and does not constitute legal advice.