● What is Malpractice Lawsuit?
Medical malpractice is the harm of the patient as a result of wrong diagnosis, wrong treatment or incomplete care service due to the ignorance, inexperience or indifference of the doctor or health institution.
Malpractice arises from all kinds of practices that are contrary to medical standards during the diagnosis of the disease (taking the history, performing the examinations, etc.), treatment (giving the patient medication, surgery, injection, etc.) and care of the patient.
The concept of medical malpractice (malpractice of physicians) is generally defined in Article 13 of the Turkish Medical Association (TTB) Medical Professional Ethics Rules:
“Harm to a patient due to ignorance, inexperience or indifference means “bad practice of medicine”.
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● What are the Conditions for Litigation for Malpractice (Physician Error)?
Medical intervention involves a certain degree of risk. Therefore, medical interventions are subject to the patient’s consent.
For example, it is not possible for the doctor to decide on his own to have the operation, even if it is for the benefit of a patient who does not accept surgery. However, even with the patient’s consent, any application to be made by the doctor on the patient should be done in accordance with the professional rules generally accepted in medical science, called “medical standards” and with care. Any medical intervention against medical standards is considered as malpractice.
The concept of medical malpractice (physician error) is explained in the settled decisions of the Supreme Court and the Council of State as follows:
According to the standards of medical science and experience, all kinds of physician intervention that does not seem appropriate and therefore does not appear to be appropriate for the event is understood as malpractice. In other words, lack of knowledge and skills, not applying appropriate treatment and standard practice to the patient during the diagnosis and treatment of the patient is defined as a medical error. At this point, the responsibility to arise as a result of malpractice is “general liability based on fault”. The measure in terms of the legal responsibility of the physician; It is the standard of an experienced specialist physician.
The physician should be in a position to foresee a harm in the patient’s health, depending on the normal development of events objectively and subjectively according to his personal experience, personal ability, individual professional knowledge, quality and degree of education. In this case, we have a duty of care. Violation of the physician’s duty of care is concentrated in three areas; The first is in the treatment of the patient, namely diagnosis, indication, choice of medical measure, application of this measure, treatment or post-surgical care. The second is the clarification of the patient and taking the anamnesis.
Third, in the field of clinical organization (qualification of personnel, having sufficient number of personnel, cooperation of physicians with each other (Consultation). It is possible to evaluate the defect in these three areas as application defect (error in treatment), lighting defect and organizational defect, respectively. These three defects are called “Medical Practice Error” (Malpractice).
The doctor’s intervention to the patient should be done carefully and in accordance with the concrete case, according to the standards of medical science and experience. In the doctor-patient relationship, the violation of the medical standard, which is the subject of the compensation case, occurs in the following ways:
• In the diagnostic phase
✧ The doctor’s incomplete examination of the patient, the patient’s disease history or history information (anamnesis) is missing, the necessary examinations are not made, etc. Such errors are considered medical malpractice.
• At the treatment stage(lack of indication, wrong choice of treatment method),
✧ According to the Supreme Court decisions, if the necessary medical intervention for the disease is not done at all, if a foreign substance is forgotten in the patient’s body during the surgery, when a wrong treatment method is chosen or a wrong medicine is given, a wrong injection is made in the wrong place, if the patient or the limb to be intervened is confused, when the intervention is done in a disproportionate manner, hygiene Failure to pay attention to the rules or adopting an erroneous operating style are accepted as examples of medical malpractice.
• Organizational obligation (clinical organization, whether the staff is adequate and qualified to care for the patient, consultation).
✧ According to the Supreme Court decisions, Carelessness within the scope of the patient’s health status, type and severity of the disease in the measures required by the honesty principle (Article 2) is considered as a malpractice. In order to take these measures, the necessary qualified personnel should be available, and the consultation (cooperation) of physicians when necessary for the treatment of the disease should be organized by the health institution.
Failure to fulfil the obligation of the organization brings responsibility in addition to the doctor’s diagnosis or treatment errors in terms of the health institution.
There is no doubt that the patient, who has been harmed due to mistakes made in the diagnosis, treatment or organization stages, has the right to file a claim for compensation due to malpractice against those who are responsible. It is also necessary to set out two special issues that require compensation liability due to malpractice (doctor’s errors). These issues are;
– Consultation: Failure to make a consultation or not complying with the consultation, even though it is compulsory, also creates the liability for compensation due to medical malpractice. Consultation is when the doctor responsible for the diagnosis, treatment and follow-up of the patient exchanges views or cooperates with other areas of expertise when deemed necessary.
If the physician has acted without consulting the relevant specialist doctor at a point where consultation should be made, or has performed medical practice without fulfilling the requirements of the information given as a result of the consultation, the physician is liable for compensation in case of malpractice.
– Stabilization: Stabilization refers to the patient attaining a stability or balance. Stabilization is the elimination of the medical condition that caused the patient to come to the emergency room to a certain extent, restoring the body balance, stopping the progression of the disease, stabilizing the body functions, providing medical support to the patient until the intervention is performed in cases that require further intervention. It means keeping it and trying to prevent the emergence of new complications.
If the patient is transferred or discharged without stabilization, the negative consequences will require compensation liability due to medical malpractice (doctor’s error).
Contact our Lawyer in Antalya to proceed on the right path and avoid loss of rights in your malpractice case that you intend to file. As ALFA Law and Consultancy we provide understandable legal services with our Lawyer in Antalya who is expert in the field of health law.
● What is a Complication? Is there any liability for compensation in case of complications?
The doctor is only responsible for malpractice. Although the doctor performs the application with due care and attention by acting within the framework of normal risks and deviations in accordance with the concept of “medical standard”, if the complications that develop cause harm to the patient, the doctor or the hospital cannot be held responsible for the damage if the patient is informed about the complications and their approval is obtained. Complications are undesirable and unavoidable consequences that are not caused by the doctor’s lack of knowledge or skill, despite compliance with medical standards.
The Supreme Court defines the concept of complication in its settled decisions as follows:
A complication is an unforeseen, unavoidable result during medical intervention, even if foreseen; however, this should not be the result of a lack of knowledge and skills. According to this definition, it is stated that the physician will not be legally responsible for the undesired results that occur despite the necessary care and attention by acting within the framework of the normal risks and deviations that are medically accepted.
If the patient knows about the undesirable consequences and complications that may occur during and after the medical application and gives consent to the application, the medical intervention is legal. If the harmful result in the patient cannot be predicted and prevented, or if it can be predicted (provided that the patient is sufficiently informed, consent is obtained and there is no defect in the application), this situation should be considered as a complication.
At this point, it is necessary not to deviate from medical standards and to comply with professional experience rules. Again, the diagnosis and treatment applied in the post-complication process should also be in accordance with the medical rules. At this point, the post-complication management process is also important in terms of detecting the presence of service defect.
You can count on our Lawyer in Antalya for comprehensive legal advice on health law, malpractice cases and complications.
● Which Court is in Charge in the Case of Material and Moral Compensation Due to Malpractice?
In the case of medical malpractice, the court in charge is regulated as a “consumer court”. Material and moral compensation cases to be filed against
self-employed doctors are heard in consumer court as well.
Consumer courts are again in charge of dealing with pecuniary and non-pecuniary damages lawsuits to be filed against private hospitals operated by the company, ordinary partnership or real persons.
The court in charge of dealing with pecuniary and non-pecuniary compensation cases brought against public hospitals or health institutions due to medical malpractice is regulated as an “administrative court”.
Public hospitals are state hospital, research hospital, mental and nervous diseases hospital etc. In cases of medical malpractice occurring in such hospitals, the administrative court is responsible for dealing with pecuniary and non-pecuniary damages. The lawsuit before these courts is described as full remedy action in such cases.
The administrative court is responsible for dealing with material and moral compensation cases due to doctor’s practice errors that occur in foundation university or state university hospitals as well.
The administrative court is also responsible for dealing with material and moral compensation cases to be filed against family health centres or similar public health institutions.
It should not be forgotten that compensation cases to be filed due to personal faults, which can be separated from service faults, are filed in judicial courts.
In addition, the court in charge of lawsuits to be filed against the doctor’s insurance company due to medical malpractice is regulated as the “commercial court of first instance”. (Turkish Commercial Code no. 6102 art.4/1-a)
Regardless of whether the parties are merchants or not, legal cases arising from the issues stipulated in the Commercial Code No. 6102 are accepted as absolute commercial cases. The lawsuit to be filed against the insurance company that insured the doctor’s medical malpractice, is subject to Article 143 et al. of the TCC No. 6102. Since the insurance contract with the doctor, within the scope of the commercial activity of the insurance company, is considered as an absolute commercial business, the court in charge of the material compensation lawsuit to be filed against the insurance company is the commercial court of first instance.
It is also necessary to determine the court in which place the pecuniary and non-pecuniary damage lawsuit filed due to malpractice will be carried out.
In cases of pecuniary and non-pecuniary damages to be filed due to malpractice, the general competent court is determined as follows:
●General Authorized Court: The court with general jurisdiction to hear all pecuniary and non-pecuniary damages lawsuits to be filed due to malpractice is the court of the place of residence of the defendant real or legal person on the date of the lawsuit.
✧ For example, the court of the place where the private or public hospital is located or the domicile of the doctor who has a private practice is the competent court. If there is more than one defendant, the case can be filed in the court of the settlement of one of them. The general competent court, that is, the court in the defendant’s place of residence, is authorized in malpractice cases to be filed in all competent courts (administrative court, consumer court, commercial court of first instance).
The plaintiff, who has filed a lawsuit for pecuniary and non-pecuniary damages due to malpractice, may also file a lawsuit in the special competent court in the following cases:
● Place of Performance of the Contract – Consumer Court: A lawsuit for pecuniary and non-pecuniary damages arising from the work or power of attorney contract filed in consumer courts can also be filed in the consumer court in the place where the contract will be executed. The consumer court where the diagnosis, treatment (surgery, medication) or care is carried out is also authorized to hear the case.
● Place of Residence of the Plaintiff – Consumer Court: Consumer cases can also be filed in the consumer court in the place of residence of the consumer. In malpractice lawsuits to be filed with the consumer court, the consumer court in the residence of the patient, who is accepted as a consumer, is also authorized to hear the case.
Malpractice, pecuniary and non-pecuniary damages based on the cause of wrongful act can be filed in the general competent court mentioned above or in the following courts:
•Compensation lawsuits can be filed in the court of the place where the wrongful act was committed.
• If the damage occurred in a place other than the place where the wrongful act was committed, an action for compensation can also be filed in the place where the damage occurred.
• An action for compensation can also be filed at the residence of the injured party in case of wrongful act.
Antalya Law Firm ALFA Law and Consultancy and its Lawyers in Antalya provide support in filing your compensation case due to doctor’s error in the right court and in the litigation process.
● What is the statute of limitations in Malpractice Cases?
Before filing an action for pecuniary and non-pecuniary damage due to malpractice based on service failure in the administrative court against public hospitals (state hospital, university hospital, research hospital or family health centre health institutions, etc.), one year from the date of learning of the damage and doctor’s error, and in any case, within 5 years from the date of application, a written application for material and moral compensation must be made to the relevant administration.
In case of partial or complete rejection of the claim for compensation by the administration, a full remedy action should be filed for malpractice within 60 days from the day following the notification of the transaction in this regard.
If the Administration does not respond to the request within 30 days, the request is deemed to have been rejected on the expiry of this period. A full remedy action can be filed due to doctor’s error within 60 days, following the rejection of the request.
In malpractice lawsuits to be filed against private hospitals or doctors based on wrongful act, the statute of limitations expires after two years, starting from the date on which the injured person learns about the damage and the person liable for compensation, and in any case ten years starting from the date of committing the act. However, if the compensation arises from an act necessitating a penalty for which the penal laws prescribe a longer statute of limitations, the statute of limitations on criminal proceedings shall apply.
The statute of limitations for compensation cases to be filed in consumer courts against private hospitals or doctors based on a power of attorney agreement is 5 years.
The statute of limitations for malpractice lawsuits to be filed in consumer court against a private hospital or doctor based on a work contract is also 5 years.
If the doctor has a serious fault in medical practice, the statute of limitations is 20 years, regardless of the nature of the procedure.
The statute of limitations is 10 years in malpractice lawsuits filed on the grounds of working without a power of attorney without obtaining the necessary permission or approval from the patient before medical intervention.
Our Lawyer in Antalya who is expert in health law informs you whether your malpractice case is time-barred or not, and helps you open your case on time.
● Doctor’s Criminal Law Liability in the Case of Malpractice
If medical malpractice is a crime, the doctor will be criminally liable under criminal law. A crime is an unlawful act committed intentionally or negligently.
Medical malpractice constitutes a crime when it is committed with a reckless or deliberate act against the victim. If the injury occurred as a result of the criminal act of the doctor responsible for compensation, the crime of injury by negligence, and the crime of causing death by negligence if death occurred.
● Against Who Can Malpractice Compensation Case Be Filed?
Compensation cases can be brought directly against the relevant public institution due to malpractice in public hospitals. A lawsuit for compensation cannot be brought directly against a doctor who is a civil servant. The right of recourse to the doctor of the public institution is reserved.
A claim for compensation due to faulty medical practices in private hospitals can be filed against both the doctor who made the wrong diagnosis or treatment, the hospital operator and the insurance company that insures the doctor’s mistake.
Compensation cases due to doctor’s error are quite complex and difficult. In order to prevent loss of rights and to manage the process in the most careful way, it is necessary to get support from an expert lawyer. Our Lawyers in Antalya are here to help you by making the right choices and by getting the compensation you deserve.