Medical doctors are under certain obligations while practicing their profession, such as the obligation to diagnose, the obligation to select and apply the appropriate treatment method, the obligation to inform the patient and their relatives, and the obligation to care. These obligations arise from the nature of the activities performed by medical doctors. Therefore, it is important to determine the nature of the legal relationship that doctors establish with the patient while practicing their profession in order to ensure compensation for damages incurred in the event of a breach of any of the aforementioned obligations.

A contractual relationship is established between the patient and the patient when they apply to a doctor or a private health institution and the treatment begins. This contract is a sui generis contract and is called a treatment contract in practice. The legal nature of the treatment contract is debatable. However, the dominant view in Turkish Law advocates the application of the provisions regarding agency contracts to treatment contracts. While the Court of Cassation was of the opinion in its previous decisions that the provisions of tort would apply to the liability of the doctor, it later changed its case law and ruled that the provisions of agency contracts would apply to the patient-doctor relationship. According to a decision of the Supreme Court in 2002; “… The relationship between a private hospital, a doctor employed by it, and a patient is a contract of agency. According to the provision of Article 386/2 of the Turkish Code of Obligations, the provisions of agency are valid in works that are not subject to the legal regulations on other contracts of employment. As in the present case, there is a parallelism between the doctrine and the consistent practice of the Supreme Court in that disputes between a private hospital (and doctors employed by it) and a patient should be resolved in accordance with the legal regulations on agency contracts.[1]

In case of a breach of the contract established between the private hospital/doctor and the patient and subject to the provisions of the agency contract, compensation liability will come into play. The breach of the contract may arise from reasons such as error in diagnosis and treatment or breach of the duty of care. In this case, there must be a causal link between the behavior of the private hospital or doctor who caused the damage by acting against the law and the damage that occurred. The liability of the private hospital/doctor who caused the damage by acting against the law is aggravated fault liability.

According to the established case law of the Supreme Court, objective criteria will be taken into account in determining the fault of the physician. In addition, the physician will be held completely liable for even the slightest fault, regardless of the degree of fault. The physician may use an assistant (such as a nurse, laboratory technician) while fulfilling the treatment obligation. However, he/she will be liable for the faulty actions of these persons in accordance with Article 116 of the Turkish Code of Obligations. The physician’s liability here is strict liability. The Supreme Court; He is of the opinion that if the doctor is “liable for the assistants”, issues such as the degree of fault and the distribution of fault rates will not be examined in the case and compensation should be awarded according to the exact fault.[2]

The Merits No. 2017/680, Decision No. 2021/449 of the General Assembly of the Court of Cassation on the legal liability of doctors is as follows;

Based on this regulation and in its simplest form, agency can be defined as a contract that imposes an obligation on the agent to act in accordance with the interest and will of another (Tandoğan, H.: Borçlar Hukuk Özel Borç İlişkileri, 2010).

An agency contract is based on the mutual trust of the parties, as in other contracts of acting, and even more so than them. Most of the obligations of the agent arise from this element of trust and the obligation to act in accordance with the interest and will of the client.

The concept of the duty of loyalty refers to the obligation of the agent to protect the interests of the client within the framework of the purpose pursued by the contract, in accordance with the trust placed in him, both during and after the execution of the agency, and to subordinate his own interests to those of the client. The subject of the duty of care is that the agent takes the necessary initiatives and behaviors according to life experiences and the normal flow of work in order to achieve the targeted result and avoids behaviors that may prevent the successful result.

If the agent fulfills these obligations duly, in other words, by acting diligently to achieve the most suitable result for the client, unlike in work contracts, he/she will not be responsible for the failure to achieve the result.

The Code of Obligations has generally subjected the agent’s responsibility in this regard to the provisions regarding the liability of the employee in service contracts (Art. 321/I-II). For this reason, the agent is responsible for even the slightest fault in agency contracts. Indeed, the General Assembly of Law, Dated 20.03.2013, Merits No. 2012/13-1049, Decision No. 2013/383; The same principle has been adopted in the decisions dated 13.06.2019, Merits No: 2017/13-561 and Decision No: 2019/655.

Within the framework of these provisions, the physician who is obliged to perform his/her duty in accordance with scientific principles may be liable for damages in case of breach of contract. The legal liability of the physician depends on the existence of faulty action, damage and a causal link between damage and faulty action.

In order to talk about fault, which is a condition of liability, there must first be an action. The physician’s actions may be in question in medical assistance, diagnosis and treatment, or they may occur with a general behavior.

Another condition, damage, can be defined generally as a decrease in the legally protected values ​​of the creditor due to the breach of contract (Eren, F.: General Provisions of the Law of Obligations, … 1999) and can manifest as material or moral damage. In medical liability, material damage is the difference between the health status that the patient would have achieved if an intervention in accordance with the obligation was performed and the actual results of the faulty treatment, which can be measured in money; whereas moral damage refers to the physical and moral pain that the patient feels as a result of a faulty treatment and the decrease in their enjoyment of life.

In the most concise terms, the causal link, which can be defined as the cause-effect relationship between two events, is also one of the founding elements of liability. In order for the liability arising from the contract to occur, it is not enough for only a natural causal link to exist between the act of breach and the damage; there must be a suitable causal link. The theory of suitable causal link is based on the selection of the reasons that can be valued, not on every reason. Accordingly, the connection between the necessary condition, which is generally suitable to bring about a result of the kind that occurred in the event due to its nature and main tendency or which objectively increases the possibility of such a result occurring, and the result in question can be defined as the appropriate causal link.

In determining whether the physician’s fault is a suitable causal link between the action and the harm, the necessity of the harm/danger being foreseeable and preventable should not be overlooked. The physician cannot refrain from providing assistance even in cases where the probability of obtaining a good result is very low. If medical assistance and interventions are in accordance with the rules of medical art, if the patient’s benefit and harm have been assessed with his/her consent, and if the unforeseen outcome could not be prevented, the physician’s fault cannot be mentioned.

The defective performance of a medical activity is referred to as professional error (malpractice). According to Article 13 of the Turkish Medical Association’s Medical Professional Ethics Rules, malpractice is the harm caused to a patient due to ignorance, inexperience or indifference. Malpractice is different from the concept of complication. A complication is when an undesirable outcome occurs despite the physician doing everything right while performing a medical intervention. Provided that the complication is managed well and correctly, the physician will not be held responsible since there is no culpable violation of the general rules of medical science in the occurrence of the undesirable outcome.

The determination of physicians’ faults is mostly carried out through expert examination, since the subject is a technical field that requires expertise. The expert assesses whether there is a behavior that is contrary to the requirements and principles of the medical profession, and the court reaches a conclusion by examining the other conditions of liability by benefiting from this determination.

Finally, it should be noted that if the behavior of the physician or assistants falls within the scope of one of the crimes included in the Turkish Penal Code, their criminal liability will also be on the agenda in terms of the crimes they committed intentionally or negligently, in accordance with the principle of individuality of punishments.

REFERENCE

Cengiz, İ., & Küçükay, A. (2019). TIBBİ MALPRAKTİS, TIBBİ MALPRAKTİSİN PSİKOLOJİK BOYUTLARI VE ÖZEL HASTANEDE ÇALIŞAN HEKİMİN TIBBİ MALPRAKTİSTEN DOĞAN HUKUKİ SORUMLULUĞU. Türkiye Adalet Akademisi Dergisi, (37), 107-132

The Merits No. 2017/680, Decision No. 2021/449 of the General Assembly of the Court of Cassation

Turkish Code of Obligations and Related Legislation

[1] Cengiz, İ., & Küçükay, A. (2019). TIBBİ MALPRAKTİS, TIBBİ MALPRAKTİSİN PSİKOLOJİK BOYUTLARI VE ÖZEL HASTANEDE ÇALIŞAN HEKİMİN TIBBİ MALPRAKTİSTEN DOĞAN HUKUKİ SORUMLULUĞU. Türkiye Adalet Akademisi Dergisi, (37), 107-132, For The Decision: Court of Cassation, Date: 11.12.2002, Merits No: 2002/13-1011, Decision No: 2002/1047

[2] Cengiz, İ., & Küçükay, A. (2019). TIBBİ MALPRAKTİS, TIBBİ MALPRAKTİSİN PSİKOLOJİK BOYUTLARI VE ÖZEL HASTANEDE ÇALIŞAN HEKİMİN TIBBİ MALPRAKTİSTEN DOĞAN HUKUKİ SORUMLULUĞU. Türkiye Adalet Akademisi Dergisi, (37), 107-132