As in any legal relationship, there is a debtor and creditor relationship between the doctor and the patient. In this legal relationship, the doctor is obliged to undertake the promised medical intervention, and the patient is obliged to pay the agreed fee to the doctor. Within the scope of this relationship, the doctor's legal and criminal liability may arise in the event of any harm suffered by the patient due to misconduct or negligence. Within the scope of this legal liability, the doctor would be obliged to indemnify the patient's pecuniary and non-pecuniary damages in proportion to his/her fault and negligence. In order to resolve a dispute in this regard, firstly, the relationship between the parties shall be determined, and the facts of the dispute are to be revealed.
There is no legal regulation in Turkish law that determines the legal basis of medical interventions. However, in order to determine the legal basis of the relationship, certain criteria have been determined through the jurisprudence of the Court of Cassation. Bearing the facts of the factual incidents, the relationship between the doctor and the patient could be subject to the provisions of contract for work, proxy contract, or contract for service. The aforesaid relationship could vary upon the method or the place of the treatment. Pursuant to the established jurisprudence of the Court of Cassation, it is accepted that interventions, where a result is guaranteed, are subject to the provisions of contracts for work, whereas treatments made for healing purposes are subject to the provisions of proxy contracts. For instance, pursuant to the Court of Cassation, the difference between contracts for work and treatment contracts is related to the guarantee of the outcome and, in aesthetic interventions, the doctor, as the contractor, guarantees that the patient will achieve the desired result.1 In this respect, interventions made for aesthetic purposes are generally subject to the provisions of contracts for work. However, it is accepted that a proxy relationship is established for treatment purposes, and for treatments where the result cannot be guaranteed.
Doctor's Duty of Care
Under Turkish Law, there are certain conditions to be met in order to hold the doctor liable for damages suffered as a result of a medical intervention. These conditions are: The existence of (i) defective work, (ii) damage as a result of this work, and (iii) causation. In order to impose liability, all of these criteria shall be cumulatively fulfilled. In determining the condition defect, fulfilling the duty of care plays an important role.
Pursuant to Art. 471/2 of the Turkish Code of Obligations numbered 6098 ("TCO"), which regulates the contract for work provisions, "The determination of the responsibility of the contractor arising from diligence is based on the conduct of a prudent contractor, who undertakes works in a similar field, in accordance with professional and technical rules." In order to be a prudent conductor, the doctor shall accomplish his/her duty of care in line with all of the medical, ethical and professional rules. Contrary to contracts for work, in the proxy relationship, the attorney would be held responsible, not because of the failure to reach the desired result, but from the damages that arose due to failure to comply with the duty of care in the behaviors performed while attempting to reach the desired result.
Within this scope, during the diagnosis and treatment process, the doctor is required to carry out applications for the benefit of the patient, to fulfill the professional requirements of the medical profession, and to take preventive measures in terms of damages that may occur during or after the treatment. Pursuant to Art. 4 of the Convention on Human Rights and Biomedicine2, "Any intervention in the field of health, including research, must be carried out in accordance with the relevant professional obligations and standards." Established Court of Cassation jurisprudence states that "The medical standard refers to the level of the doctor's experience that has been tried and proven, and the natural sciences attained by the doctor in order to achieve the aim of the treatment3." Therefore, a doctor's duty of care shall be examined within the scope of the established medical standards. Since determining the defect within this scope requires superior medical knowledge, this may only be determined through a technical report prepared by competent experts or by the Forensic Medicine Institution.
Doctor's Duty of Disclosure
As per Art(s). 15, 24 and 26 of the Regulation on Rights of Patients4 and Art. 26 of the Rules of Professional Ethics of the Turkish Medical Association, doctors are obliged to explain, in detail, all of the interventions that they will perform, possible complications which may arise, the results of the interventions, and to obtain the patient's clear consent (informed consent) regarding the interventions (i.e. operations).
The Court of Cassation has ruled that since no informed consent was provided that shows that the patient was informed regarding the possible complications arising from the operation, nor that the patient gave consent for the interventions, the interventions performed were unlawful, and the doctor is liable to compensate for pecuniary and non-pecuniary damages5.
Limitation of Action
The limitations in actions for damages arising from the breach of doctors' obligations vary according to the nature of the legal relationship. Since the provisions of contracts for work shall be applied for aesthetic-proposed interventions, of which the result is guaranteed, Art. 478 of the TCO would be valid in determining the limitations. As per Art. 478 of the TCO, "If the contractor delivers defective work, the litigation to file a case regarding such defect shall be 2 years for the movables and 5 years for the immovables. However, if such defect has resulted from the gross negligence of the contractor, then the lapse of time shall be 20 years, regardless of the of the nature of the related work."
In the case of treatment-proposed medical interventions, the provisions of a proxy agreement would be valid and, since there is no special statute of limitation regulated for proxy agreements, it shall be subject to the general statute of limitation in the TCO, which is 10 years.
Since there is no provision in Turkish law that regulates the legal relationship between a doctor and his/her patient, various criteria have been established through the jurisprudence of the Court of Cassation. Identifying the legal relationship is important in terms of the determination of the defect and the statute of limitations in cases filed for damages. The provisions of the contracts for work regulated in the TCO shall be valid in respect of aesthetic-purposed interventions, where a result is guaranteed, and the provisions of the proxy agreement regulated in the TCO shall be valid in terms of therapeutic purposed interventions.
In order for the doctor to be held liable as a result of an intervention, there must have been defective work, damage as a result of this work, and causation between the occurrence of the damage and the defective work of the doctor.
In conclusion, duty of care and duty of disclosure are two of the most important obligations of the doctor toward his/her patient. Pursuant to the established jurisprudences of the Court of Cassation, in the event where these obligations are not fulfilled, the doctor's work shall be found defective, and shall be held liable for any pecuniary and non-pecuniary damages. While determining the defect, medical standards shall be identified and evaluated by reports prepared by experts.
1. 15th Civil Chambers ("CC") of the Court of Cassation, No. 2018/4953 E. 2018/4526 K., 19.11.2018.
2. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Official Gazette ("OG"), No. 25311, 09.12.2003.
3. 15th CC of the Court of Cassation, No. 2018/5523 E. 2019/801 K., 26.2.2019.
4. OG, No. 23420. 01.08.1998.
5. 13th CC of the Court of Cassation, No.2016/25663 E. 2018/7615 K., 04.07.2018.
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