The field of aesthetic surgery, which has become increasingly important with the transformation in the perception of beauty, can also be the source of some legal disputes. There is no special regulation in our law regarding the legal liability of the aesthetic surgeon, and the provisions of the Code of Obligations are applied on the subject.

In this context, if a valid contractual relationship is established between the physician and the patient, the physician’s liability arising from the contract will come to the fore. However, if there is no contractual relationship, the liability will come to the fore according to the provisions of the Code of Obligations regarding tort.

If a contractual relationship is established between the physician and the patient, there are different opinions in the doctrine regarding the legal nature of this contract. The dominant view in the Supreme Court and the doctrine is that the contract between the patient and the physician in the field of aesthetic surgery is a contract of work. In the Merits No. 2021/2706 and Decision No. 2022/2509 of the 6th Civil Chamber of the Supreme Court;

It was decided that aesthetic interventions would be performed on the plaintiff with the contract signed between the parties. It is understood that this contract is different from the contract between the doctor and the patient regarding treatment, and therefore the provisions of the contract of work should be applied. According to Article 355 of the Code of Obligations regulating the contract of work, the contractor’s obligation is to produce a work, and the employer’s obligation is to pay a price in return. The contractor guarantees the result due to the nature of the contract of work. The reason for making the contract here is the emergence of a certain result. The work is the result of a labor that requires the contractor’s art and skill, and the contractor is obliged to produce the work in a way that will benefit the employer and does not harm him in any way.

On the other hand, the contractor, the physician, has the obligation to perform his/her duty with loyalty and care. It has also been explained that the professional and technical rules that a prudent contractor who undertakes work in similar fields should demonstrate will be taken as basis in the contractor’s responsibility arising from the duty of care. Again, due to the nature of the contract of work, the contractor should be deemed to have guaranteed the result. In complications, the obligation to inform and the correct management of complications are again the responsibility of the contractor.

By establishing the provision as follows, it has accepted the contracts made between the patient and the physician in the field of aesthetic surgery as contracts of work. In order for a liability to arise against the surgeon from the relationship between the plastic surgeon and the patient, the surgeon must have committed a faulty act contrary to the contract, the patient must suffer damage as a result, and there must be a suitable causal link between the act and the damage.[1]

Regarding the liability of the contractor in the work contract, the 3rd Civil Chamber of the Supreme Court of Appeals has ruled in its Merits No. 2012/177 and Decision No. 2012/6939 as follows;

A work is a result that requires the contractor’s art and skill, achieved through an effort. The contractor’s creation of the work in a way that will benefit the client and without causing any harm to him/her covers both the fidelity and diligence obligations of the defendant contractor. The aim here is for a certain result to emerge. If the work created does not meet the client’s expectations, the balance of benefits in the contract will be disrupted against the client. In this respect, it is sought that the work complies with the rules of science and art and has the characteristics that meet the client’s expectations. Otherwise, the work is considered defective. The contractor who created the defective work is responsible for the defects and deficiencies that occur due to the warranty obligation against defects. No matter which method the contractor uses, the work must emerge without defects.

The Court of Cassation 3rd Civil Chamber has ruled as follows regarding liability in its Merits No. 2015/11672 and Decision No. 2016/4827;

One of the important issues that distinguishes work contracts from other work contracts is the result responsibility, that is, the commitment of the contractor to produce a result in accordance with the will of the parties. Here, there is no commitment to perform a job without a result commitment as in the contract of agency, but the obligation to create and deliver a work-result is undertaken. The party undertaking this obligation, that is, the contractor, is obliged to perform the job with loyalty and care in accordance with Article 356/1 of the Code of Obligations (471/1 of the TCC) and the nature of the job. The duty of loyalty means that the contractor does things that will benefit the employer and avoids any action that will harm him.

According to the provisions of the work contract, the defendant doctor’s obligation is to perform the aesthetic surgery in accordance with his commitments, the requirements of medicine and the rules of good faith, and the plaintiff’s obligation is to pay the price.

Finally, it should be noted that for damages arising from aesthetic surgeries for beautification purposes, the liability of the aesthetic surgeon can also be sought based on the provisions regarding tort. Since the aesthetic surgeon intervenes in the patient’s physical integrity, any harmful behavior contrary to the contract also constitutes a tort. Therefore, in such cases, contractual liability and non-contractual liability compete. Apart from this, in cases where the aesthetic surgeon works in a private hospital with a service contract or as a civil servant in a state hospital and the patient enters into a contract with the private hospital regarding treatment or applies to the state hospital within a public law relationship, since there is no contract between the patient and the aesthetic surgeon, the liability of the aesthetic surgeon is based on the provisions regarding tort. In order to apply for tort liability, there must be unlawfulness, damage, fault and causal link. In the presence of these conditions, it is possible to apply to the provisions regarding tort liability for damages arising from aesthetic surgery procedures.

REFERENCE

Petek, H. (2006). Güzelleştirme amaçlı estetik ameliyatlardan kaynaklanan hukuki sorumluluk. Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 8(1), 177-240.

Court of Cassation 6th Civil Chamber, Decision No. 2021/2706 and Decision No. 2022/2509

Court of Cassation 3rd Civil Chamber, Decision No. 2012/177 and Decision No. 2012/6939

Court of Cassation 3rd Civil Chamber, Decision No. 2015/11672 and Decision No. 2016/4827

Law of Obligations and Related Legislation

[1] Petek, H. (2006). Güzelleştirme amaçlı estetik ameliyatlardan kaynaklanan hukuki sorumluluk. Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 8(1), 177-240.