Turkey: Medical Malpractice: A Critique Of The Turkish And American Approaches To Awarding Non-Economic Damages

Last Updated: 24 June 2009

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.

Footnotes

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).

9. Id.

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).

18. Id.

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.

23. Id.

24. Note that this principle of unjust enrichment is also present in the Turkish Law of Obligations, Section 3.

25. Yavuz Mavioglu.

26. Id.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions