Article by Abigail Cotterill
When a doctor makes an error in your treatment, what legal compensation will be available? This is the central question in current medical malpractice litigation, one that is not easily answerable and that depends largely on the country in which you live. In the United States the past several decades have seen a rise in the number of medical malpractice suits, and escalating insurance premiums for healthcare providers amidst continued reports of medical error.1 In recent years the increase in medical malpractice litigation has been coupled with larger non-economic damage awards,2 reflecting concerns with maintaining quality care and holding healthcare professionals to acceptable standards of conduct. At the same time, such high awards have led state legislatures nationwide to respond with statutory limits on punitive and non-economic medical malpractice damages, in part due to concern that the risk of prohibitive legal expenses will drive competent, needed doctors out of the profession.3
The climate of the legal and healthcare systems in Turkey differs significantly from that in America. In Turkey a civil law system functions without juries, healthcare providers do not normally purchase malpractice insurance, and the state pays for damages awarded in suits against healthcare providers in state institutions.4 As a country with fewer medical professionals and a population that is less willing to initiate litigation against doctors, Turkey's incidence of medical malpractice suits has traditionally been relatively low. Between the years 1993 and 1998, however, there were 997 medical malpractice cases in Turkey, the three most common claims being negligence, inappropriate intervention, and diagnostic failure.5 Since the 1990s, litigation in this area has been increasing, and L.L.M. programs including courses on medical malpractice are now offered at many Turkish universities.6
The issue of damages is at the forefront of scholarship on medical malpractice litigation. Settling on a measure of compensation for an injured patient is a controversial and challenging task. This is in part because of the difficulty of assessing non-economic damages such as pain or change in quality of life, and in part because of the tension between compensating injured patients and preventing large awards from driving practitioners out of the medical profession. An analysis of the shortcomings of compensation systems in the United States and Turkey in comparison to those in the European Union may shed light on the challenges of choosing a proper method for evaluating non-economic damages.
In the United States, the amount of compensation for a medical malpractice plaintiff is a question for the jury. Following instructions from the judge, this body of citizens is left to weigh the evidence of the case and determine how much compensation the plaintiff will receive, if any. The instructions are often based on pattern instructions that allow juries to assign percentage fault to doctors and patients, if applicable, and assess damages as they see fit for a specific injury.7 This method is in line with the general principle that the jury should award the amount that will "fairly and adequately" compensate for the injury.8 While some sets of instructions allow judges to recommend ranges for compensation or factors to assess in considering compensation,9 there is no consistent standard or formula used to calculate damages in all cases. Juries in recent medical malpractice lawsuits have consequently been able to return increasingly large damage awards under these somewhat nebulous procedures, in some cases even awarding millions of dollars.10 Because of the related increases in medical malpractice insurance premiums, physicians have petitioned for liability restrictions for malpractice with notable success.11 Since 1975, thirty-nine state legislatures have passed tort reform liability restrictions on medical malpractice punitive damages, non-economic damages, or both, and as a result have capped plaintiffs' compensation and doctors' liability in many jurisdictions across the country.12 The first of such reforms came through California Civil Code §3333.2, which set a limit of two hundred and fifty thousand dollars on recovery of non-economic damages for pain and suffering, physical disfigurement or impairment, or inconvenience.13 Later laws in other states limited health care providers' liability to similar effect.14
While these enactments represent a culmination of the American medical profession's petitions against unchecked liability,15 as a whole such non-economic and punitive damage caps are in fact only the starting point for the debate on medical malpractice compensation. There are numerous critiques of these statutory tort reforms, including claims that they violate the rights to jury trial, due process, and equal protection as secured in the national constitution and the constitutions of the states.16 While one response is to challenge the constitutionality of these caps, researcher Abigail Moncrieff posits that the true solution to the American malpractice dilemma is to federalize the American health care system.17 The federal government is currently partially involved in the healthcare system through the Medicare and Medicaid programs, an arrangement that allows states to externalize their extra healthcare costs onto the federal government, making it "the only institution that internalizes the full cost-benefit tradeoff of malpractice policy."18 If all healthcare spending were federalized, there would be a reduction in the related inefficiencies of patient injury and "defensive medicine," practiced with a focus on liability protection instead of the patients' best interest, thus addressing the problem driving medical malpractice tort reform.19 Other scholars suggest that the solution to the medical malpractice problem is liability caps conditioned on good hospital performance, thus bringing medical institutions into the sphere of accountability alongside doctors,20 while other groups yet support standard damage caps or other measures of state-led reform.21 The collective literature suggests a divided American intellectual community that remains unsure of how to remedy the problems of medical malpractice and its legal compensation while best accounting for the interests of both injured patients and medical professionals.
Compared to the current American system of medical malpractice compensation, the Turkish system differs significantly. The decision to compensate an injured patient in a medical malpractice suit lies not with juries, which do not exist in the Turkish legal system, but with the judge. Whereas in the United States, damages are divided into economic, non-economic, and punitive categories, the Turkish system divides the award of damages into two categories, namely economic and moral damages. The moral damages are called manevi, a phrase of Arabic origin that translates approximately to "in spirit" damages. 22In this sense it is best understood as the Turkish vehicle for non-economic compensation. Turkish courts do not award punitive damages; although the phrase "in spirit" or moral damages may appear to connote retribution in addition to restitution, the ideology underlying awards in Turkey is that one individual should not receive additional economic benefits from punishment of the defendant.23 The Turkish principle that one should not gain more financial resources than one would have had without the injury is well known, and its regular application may account for the relatively low rate of medical malpractice suits in the country. While in theory this principle mirrors the American opposition to unjust enrichment,24 from a sociological standpoint the calculation of manevi is problematic because it arguably serves to maintain the socioeconomic status quo and unequally award plaintiffs based on their position in society.
In many cases, Turkish judges calculate manevi by halving economic damages. However, the calculation of economic damages is based on a sophisticated rubric that takes a combination of factors into account, including those that relate to a person's actual wealth. Other factors considered include age at the time of the accident, the comparative fault of the parties, life expectancy, number of working years left in the plaintiff's life before retirement, and social status as measured with considerations including number of dependents and education level. 25Judges then rely on a table that allows them to calculate the injured plaintiff's compensation. For each year of the patient's future working life that has been impaired, the court awards the patient's salary multiplied by figures to adjust for inflation, seniority and the abovementioned other factors. The compensation for each year is added together to produce the total economic compensation that is called maddi in Turkish (another Arabic phrase meaning "material").26
Manevi, "in spirit" damages are awarded at the discretion of the judge, and because judges often halve the maddi damages to make this calculation, the result is that in comparison with poorer plaintiffs, wealthier plaintiffs receive elevated moral damages as well as elevated economic damages. Moral damages are by definition not a function of wealth or economics, but the result of this practice is that one's socioeconomic status dictates the amount of money one will recover regardless of the amount of non-economic damage one suffers. While it is most likely aimed at preventing over-compensation for non-economic injury, the fact that poorer individuals invariably receive proportionally less economic and non-economic compensation is one element of the Turkish damage award system that is potentially ripe for reconsideration and reform.
There is little research on damage awards in Turkey, perhaps in part because the system of assigning economic damages is fixed in such a way as to render consistent and perhaps unremarkable results. However, in the sense that American juries and Turkish judges both award non-economic damages in ways that may cause concern, Turkey may benefit from considering its own system in light of the debate surrounding American tort reform. Juries in the United States receive only minimal guidance in assessing damages; as mentioned above, jury instructions often suggest different schemes for calculating proper awards or recommended minimum or maximum amounts, but each individual jury is ultimately responsible for applying the law as it sees fit. In comparison, because Turkish judges make assessments of moral damages based on economic factors and not suffering or loss of enjoyment of life the results can be as unrepresentative as many results in the United States are. Turkey has only one national legal system and therefore does not face the federalization issues that Moncrieff describes. However, as medical malpractice litigation becomes more common in Turkey, it is possible that the discretion awarded to and methods used by judges in assigning moral compensation will come under scrutiny just as minimally guided jury awards of non-economic damages have in the United States.
In a recent article in Temple University's International and Comparative Law Journal, Professor Giovanni Comandé makes insightful suggestions for reforming the American non-economic damage awards system by comparing it with the systems of several European nations.27 According to Comandé, a key feature of a successful system for calculating non-economic damages is the practice of distinguishing between those damages that can be measured objectively and those that cannot.28 In tracking the evolution of non-economic awards throughout Anglo–American law, Comandé notes the trend towards an increasing distinction between subjectively perceived pain and suffering and objectively measurable "'loss of enjoyment of life,'" defined today as a substantive reduction in a person's ability to enjoy existence.29 Loss of enjoyment of life is more easily proven and interpreted by a judge or jury because a party can present proof of objective changes in a person's ability to participate in leisure, personal or social activities in society.30 While the American system has recognized but not fully adapted this distinction in its award policies,31 European legal systems deal in it regularly. The scheduling of compensation in many European countries gains its consistency by avoiding valuations of subjective non-economic damages and solely compensating their objective counterparts.32 By scheduling non-economic damages based on objectively measurable loss in quality of experience, these systems bypass some of the confusion that results from attempting to put a value on general pain, arguably the source of erratic American awards, or at least make the valuation of such pain more consistent across cases.
There are several ways that Europeans turn loss of enjoyment of life into a monetary award for a plaintiff. In the United Kingdom, a bracket system based on previous trial court awards for various losses provides a value of non-economic damages for any injury, which is then adjusted to account for trends in awards and inflation.33 Germany possesses a similar system based on private collections of precedent, which is consulted to award "Schmerzensgeld" non-economic damages.34 In the French system, "prejudice physiologique" non-economic damage awards are assigned with the use of information regarding "a plaintiff's disability according to the evaluation provided by her/him and by each litigant's medical expert."35 This percentage is multiplied by the monetary value dictated by an average of awards in precedent and adjusted to account for age and disability rate, creating a combined value known as "le calcul au point."36 A similar system to determine non-economic "danno alla salute" exists in Italy.37
Comandé argues that if the United States were to apply a similarly precedent-based, scheduled system of non-economic damage calculation, with a focus on objective loss of enjoyment of life, the problems of inconsistency and unpredictability could be reduced or eliminated from medical malpractice litigation.38 In the sense that the Turkish system's method of calculating moral damages does not reflect an actual calculation of loss of enjoyment of life but rather is awarded through an unrelated halving of economic compensation, Turkey might also benefit by adapting a scheduling system for non-economic damages similar to the European methods. Although the Turkish economic damage calculation already reflects European scheduling methods for calculation using tables, Turkey could more accurately calculate non-economic damages by adopting the French system that considers expert testimony and completes a calculation of loss separate from the economic damage calculation. Given that Turkey already employs expert medical testimony to determine the severity of the injury and to calculate the wages that will be lost because of this injury, it would not be a great stretch to apply similar expert testimony in an independent, objective non-economic evaluation. Turkey's current system factors wealth into moral damages even though people of all socioeconomic statuses may suffer equally; creating a separate objective system for measuring moral damages would closer align the purpose with the result of moral compensation.
As Turkey prepares for potential accession to the European Union, such a change in policy may also have favorable sociopolitical results as well. As mentioned above, the legal culture in Turkey at the present is not one where lawsuits against doctors are common. Yet the American experience demonstrates that when the number of suits increases and the method for calculating non-economic damages is not uniform, the results can be inconsistent, difficult to predict, and deleterious to the quality of healthcare. In order to avoid such consequences and to further align itself with the European Union, Turkey would be wise to join America in consideration of Comandé's discussion of the European methods for calculating non-economic damages. While assessing non-economic damages is an invariably difficult task, the European models suggest that consistency and equity of outcome is perhaps a more attainable goal than previously imagined.
1."Medical Malpractice: Why Remedy?" OECD Observer www.oecdobserver.org 2007.
2. "Towards a Global Model for Adjudicating Personal Injury Damages: Bridging Europe and the United States." Giovanni Comandé, 19 TMPICLJ 241, 247 (2005).
3. "Tort Reform as Carrot-an-Stick" Lee Harris 46 HVJL 163, 172-74 (2009).
4. Umitdogan 404-05 "A Descriptive Study of Medical Malpractice in Turkey." Umit N. Gondumus et al. Ann Saudi Med 25(5), 404, 404-05 (Sept/Oct 2005).
5. Id. at 404.
6. Conversation, Caglar Yurtturk, 10 June 2009.
7. See Pickel v. Gaskin, 202 S.W.3d 630, 632-34 (2006)(holding that where the case issues and jury's intent are clear a defective verdict form does not constitute reversible error).
8. See Hebron Volunteer Fire Dept., Inc. v. Whitelock, 890 A.2d 899, 901-03 (holding in part that where the court found a damages award excessive, the amount of the remittitur is a question for the trial court).
10. See Fertile v. St. Michael's Medical Center, 169 N.J. 481, 489 (N.J. 2001)(holding that where jury awarded a total of eighteen million dollars in damages for medical malpractice, a remitted award of five million dollars was not excessive).
11. 46 HVJL at 172-73.
12. Id. at 174.
13. CA Civil Code §3333.2.
14. See 46 HVJL at 174-76.
15. See id. at 172-73.
16. These challenges have produced differing results across jurisdictions, and even within the same jurisdiction over time. See Morris v. Savoy, 576 N.E.2d 765, 768 (Ohio 1991); Arbino v. Johnson & Johnson, 880 N.E.2d 420, 436 (Ohio 2007). See also Hoffman v. United States, 767 F.2d 1431, 1446 (9th Cir. 1985).
17. "Federalization Snowballs: The Need for National Action in Medical Malpractice Reform." Abigail R. Moncrieff, 109 CLMLR 844, 847-48 (2009).
19. Id. at 850-51.
20. 46 HVJL at 166.
21. 109 CLMLR at 851.
22. Conversation, Orhan Yavuz Mavioglu, L.L.M., 16 June 2009.
24. Note that this principle of unjust enrichment is also present in the Turkish Law of Obligations, Section 3.
25. Yavuz Mavioglu.
27. 19 TMPICLJ at 248.
28. Id. at 281.
29. Id. at 257-71.
30. Id. at 271.
31. Id. at 278-79.
32. Id. at 281.
33. 19 TMPICLJ at 282-83.
34. Id. at 285.
35. Id. at 286.
36. Id. at 286-87.
37. Id. at 288.
38. Id. at 334-47.
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