1.Obligation of Attention and Care of Health Personnel
The right to life, health and bodily integrity is an absolute right as it is included in the right to personality. The medical intervention made by the physician on the patient’s bodily integrity is an intervention on the right to personality, which is the person’s strictly bound right to bodily integrity within the scope of personality rights.
The obligation of care and attention, which is one of the reasons for the legality of medical intervention, is that the medical intervention is performed by the person authorized to practice the medical profession within the framework of medically accepted principles and principles. The Patient Rights Regulation states;
“The patient has the right to be diagnosed, treated and cared for in accordance with the requirements of modern medical knowledge and technology. Diagnosis and treatment contrary to the principles of medicine and the provisions of the legislation on medicine or deceptive diagnosis and treatment cannot be made.”
The regulation also points to the duty of care and diligence of physicians. Since the patient cannot be expected to recognize and resist medically incorrect treatment, high standards are taken as basis in determining the scope of the physician’s duty of care. The duty of care and diligence is interpreted broadly to cover not only the medical intervention and treatment methods applied, but also the careful protection of the patient and keeping the patient under control and supervision.
2. Responsibility under the Legislation
There is no specific provision in our legislation regulating the legal liability of physicians. However, this does not mean that physicians do not have legal responsibilities. In addition to some provisions in general laws such as the Turkish Penal Code and the Code of Obligations, there are also many provisions regarding the liability of physicians in special regulations regulating health services.
Physicians are personally liable for the damages caused to patients by their errors, omissions and negligence under the Criminal Law, and may also be held liable to compensate from their assets under the provisions of the Code of Obligations. In compensation lawsuits filed in relation to the medical profession, although the fact that the defendant physician operates in health institutions (public hospitals) belonging to the private sector or the state and other public legal entities makes a difference in terms of the procedure to be applied to the case, the general and special provisions of the general and special provisions of the contract of attorney regulated in Article 502 with the tort liability according to Article 49 of the Turkish Code of Obligations, the liability of the employee according to Article 66, the liability due to tools and equipment according to Article 69, and contractual liabilities according to Article 112 find an application area.
Legal Liability of Health Personnel with the Title of Public Official
If there is no contractual relationship between the physician and the patient, the physician will be liable according to Article 49 of the Turkish Code of Obligations. According to this provision, anyone who harms another person by a defective and unlawful act is obliged to compensate for this damage. It is accepted that the physician working as a civil servant in health institutions belonging to public institutions and organizations performs public service in the relevant public institution and that there is no relationship between the physician and the patient. Consequently, in health institutions belonging to the State or other public legal entities, the State is primarily responsible for the damages caused to patients by physicians or health personnel. This situation is regulated in the 1982 Constitution. Pursuant to Article 40/3 of the Constitution, damages incurred by a person as a result of wrongful acts committed by public officials shall be compensated by the State. A similar provision is found in Article 129/5 of the Constitution and Article 13 of the Civil Servants Law. The relevant regulations are as follows:
Article 40/3 of the Constitution:
“The damage suffered by a person as a result of wrongful acts committed by public officials shall be compensated by the State in accordance with the law. The State reserves the right of recourse to the responsible official.”
Article 129/5 of the Constitution:
“Suits for damages arising out of the faults committed by civil servants and other public officials in the exercise of their powers may only be brought against the administration, with recourse to them and in accordance with the forms and conditions prescribed by law.”
Article 13 of the Civil Servants Law:
“Persons shall file a lawsuit against the relevant institution, not against the personnel performing these duties, for the damages they incur in relation to the duties subject to public law.”
In its decision dated 01.02.2012 and numbered E. 2011/4-592 E. 2012/25 K. of the Court of Cassation General Assembly of Civil Chambers on the subject
“…Since the defendant’s personal fault outside the scope of his duty is not relied upon, and since the action, even if based on carelessness and imprudence, is during and related to the duty and is in the nature of a service defect, in the case at hand, the case in hand falls on the administration, not the public official. In that case, the lawsuit should be filed against the administration, and the hostility should be directed to the administration. It is in accordance with the law for the court to dismiss the lawsuit filed against the defendant doctor due to the lack of hostility.”
As it is clearly stated in the decision, the defects of the health personnel working in a public hospital, who have the title of public officer, during and related to their duty are characterized as service defects, and the lawsuits to be filed based on this defect must be filed against the administration. As a matter of fact, as stated in the decision of the Court of Cassation, it is stated that the lawsuit filed against the doctor should be dismissed.
In the decision of the Court of Cassation General Assembly of Civil Chambers dated 29.03.2006 and numbered 4-86/111 on the subject
“…Pursuant to Article 129/5 of the Constitution, lawsuits for damages incurred by civil servants and other public officials while exercising their powers must be filed against the administration. However, filing a lawsuit against the administration depends on the condition that the action is caused by a defect in service. According to the statements in the lawsuit petition, the plaintiffs relied on the personal fault of the defendant real persons. In this case, the court should first examine this claim, in this context, all the evidence of the parties should be collected and evaluated, apart from the service defect of the administration, it should be investigated whether there are behaviors of the defendant real persons that may constitute a personal defect that can be separated from the service, and a decision should be made according to the result to be reached…”
The distinction between service fault and personal fault is emphasized. If the negligent act of the public official is characterized as a “service fault”, the administration will be a party to the lawsuit.
Criminal Liability of Health Personnel with the title of Public Official
Our law does not regulate a special offense of negligent injury/murder against healthcare workers. General norms are also applied to healthcare workers.
Negligence is defined in Article 22 of the Turkish Penal Code as follows:
“Negligence is the realization of a behavior without foreseeing the consequence specified in the legal definition of the crime due to the violation of the obligation of attention and care.”
The penalty for the offense of negligent injury starts with imprisonment from three months to 1 year and a judicial fine, and the penalty is aggravated in qualified cases. (TCK 89) If the act of negligent injury has caused the victim to suffer from a disease from which recovery is not possible or to enter a vegetative state, the penalty determined according to the first paragraph is increased by one times.
In the event that the patient has been harmed due to the faulty medical interventions of public official health workers in public institutions and hospitals, the following procedure will be activated since the action is carried out due to duty. However, if the healthcare worker intentionally harmed the patient, an investigation can be opened directly, as this action is not considered to be related to the duty. Due to the fact that health personnel are public officials, the prosecutor’s office is obliged to determine only the evidence that needs to be collected and that is likely to be lost, and to request an investigation permit by notifying the administrative authority without taking any other action and especially without applying for the statement of the public officials against whom the denunciation and complaint is made. A preliminary investigation will be initiated by the authority authorized to grant the authorization, and a decision will be made whether or not to grant an investigation authorization by evaluating the report submitted as a result of the preliminary investigation.
3. Competent and Authorized Court
The court in charge of hearing material and moral damages lawsuits filed against public hospitals or health institutions due to medical malpractice is regulated as the administrative court. Therefore, in cases of medical malpractice occurring in all public hospitals, i.e. state hospitals, research hospitals, mental and nervous diseases hospitals, etc., the administrative court has the duty to hear the pecuniary and non-pecuniary compensation lawsuits, which are characterized as full judicial proceedings.
The court with general jurisdiction to hear all actions for pecuniary and non-pecuniary damages 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 filing the lawsuit (Art. 6 of the CCP). For example, the court where the private or public hospital is located is the competent court. In terms of the criminal liability of healthcare personnel, it is necessary to apply to the Chief Public Prosecutor’s Office in the location of the hospital where the intervention was performed with a complaint petition.
4. Statute of Limitations for Full Judgment
In full remedy lawsuits to be filed against the administration due to damages arising from the unlawful acts of public official physicians, the injured party must apply to the relevant administration for compensation within one year from the date of learning of the act and in any case within five years from the date of the act before filing a lawsuit in administrative jurisdiction; if this request is partially or completely rejected, it must file a lawsuit within 60 days from the day following the notification of the transaction in this regard or within 60 days from the date of expiry of this period if no response is given within 60 days about the request.
