Administrative Judgement Lighting Defect Material and Moral Compensation

In the following Constitutional Court decision, as a result of the lawsuit filed with the claim of medical malpractice in the administrative judiciary, the administration was deemed to have committed a disclosure defect and 55.000 TL non-pecuniary damages were awarded. In the individual application of the applicant, who was paralysed as a result of a surgical operation due to a cyst in the lumbar region, the Constitutional Court ruled that the non-pecuniary compensation was low and that the rejection of the request for pecuniary compensation without discussion constituted a violation of rights.

REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PART TWO

DECISION

ĞANİME YAYMAN AND OTHERS’ APPLICATION

PART TWO

DECISION

Chairman :Basri BAĞCI

Members :Engin YILDIRIM

Rıdvan GÜLEÇ

Yıldız SEFERİNOĞLU

Metin KIRATLI

Rapporteur : Çağlar ÖNCEL

Applicants : 1. Ghanime YAYMAN

2. Selhattin YAYMAN

3. Evindar YAYMAN

4. Mehmet YAYMAN

5. Servet YAYMAN

Attorney fortheApplicants : Adv. Arzu PAMUKÇU YÖRDEM

I. SUMMARY OF THE APPLICATION

1. The application concerns the allegation of violation of the right to protection and development of material and moral existence due to damage caused by medical negligence.

2. The first applicant applied to Diyarbakır Gazi Yaşargil Training and Research Hospital (the Hospital) with complaints of back and lower back pain. Subsequently, as a result of the examination and examinations, it was determined that the applicant had a cyst in the lumbar region and a surgical intervention was performed on 11/5/2015.

3. After the aforementioned intervention, the first applicant became paralysed in the lumbar region and was unable to walk. The applicant received inpatient treatment in the hospital and in various health institutions, but no result was obtained from the treatments applied and according to the report of Diyarbakır SelahattinEyyubi State Hospital dated 16/2/2016, it was determined that the first applicant was 92% disabled.

4. On 10/8/2016, the applicants filed a full judgement action before Diyarbakır 3rd Administrative Court (the Court). In their petition, the applicants stated that the first applicant, who is a mother of four children, became disabled as a result of the faulty interventions of the health officials who performed the surgery, and that she was able to continue her life with the help of a carer, and demanded a total of 200,000 TL pecuniary compensation and 124,200 TL non-pecuniary compensation for all applicants.

5. The Court sent the file to the Forensic Medicine Institution (ATK) for expert examination. In the report of the 2nd Specialised Board of the ATK dated 23/3/2018, it was stated that the practices of the healthcare professionals were in accordance with the principles and rules generally accepted by medical science, and that there was no fault attributable to the relevant healthcare professionals since the result that occurred in the first applicant was characterised as a complication that can occur after such operations despite all care and attention – not caused by any medical defect or negligence. The applicants objected to the aforementioned report, claiming that the hospital records were not evaluated in the report and that the paralysis of the applicant was not examined and requested a report from the General Assembly of the ATK. The applicants also stated that the informed consent obtained before the surgical intervention was insufficient.

6. On 12/6/2018, the Court rejected the applicants’ claim for pecuniary compensation and partially accepted the claim for non-pecuniary compensation and decided to pay a total of 55.000 TL compensation in favour of the applicants. In the justification of the decision, it was stated that the objection of the applicants was rejected since the findings in the ATK report were scientifically sufficient, and the claim for pecuniary compensation was rejected considering the determination that there was no fault of the health officials in the said report. In the justification, it was also emphasised that the stamp and signature of the physician who gave the information in the informed consent document was blank and that the information about the surgery and its complications was given to the spouse of the patient, although the patient was conscious, and it was stated that the applicants should be paid non-pecuniary damages due to the violation of the obligation to inform, even if there was no causal link and no fault of the administration in the occurrence of the damage.

7. The applicants filed a petition of appeal. In the petition of appeal; although there were contradictions between the committee reports available in the file and the ATK report, no report was obtained from the General Assembly of the ATK,

It was argued that the rejection of the claim for pecuniary compensation was unlawful and that the amount of non-pecuniary compensation awarded was insufficient. On 14/10/2020, the Gaziantep Regional Administrative Court 3rd Administrative Case Chamber (Chamber) conclusively rejected the appeal on the grounds that the Court’s decision was in accordance with the procedure and the law.

8. After receiving the final decision on 6/12/2020, the applicants filed an individual application on 25/12/2020.

9. The Commission decided that the applicant’s admissibility and merits examination shall be conducted by the Section.

II. EVALUATION

10. The applicants stated that the first applicant became disabled due to the faulty medical interventions of the health officials and that it was not possible for him to continue his life without the support of others. The applicants also stated that no explanation was given about the possible consequences of this operation before the medical intervention and emphasised that the second applicant, who was informed, was illiterate and that the informed consent form was not legally valid as it was not prepared specifically for the concrete case. The applicants argued that the Court made a decision without eliminating the contradiction between the reports and that the family suffered great material and moral pain as the first applicant became bedridden and that the right to protection and development of material and moral existence, the right to a fair trial, the principle of equality, the right to respect for private life and the right to effective remedy were violated.

11. In the opinion of the Ministry, it was stated that the issues constituting the basis of the applicants’ violation allegations were examined by the ATK report and that there was no fault attributable to the administration. It was also stated that the Constitution, the provisions of the legislation and the findings should be taken into consideration in the examination to be made. The applicant did not make any statement against the opinion of the Ministry.

12. The application was examined within the scope of the right to the protection and development of material and moral existence regulated in the first paragraph of Article 17 of the Constitution.

13. The allegation of violation of the right to the protection and development of material and moral existence, which is not clearly lacking in grounds and there is no other reason to decide on its inadmissibility, should be decided to be admissible.

14. Article 17 of the Constitution, which guarantees the right to life, when considered together with Article 5 of the Constitution, which regulates the fundamental aims and duties of the state, imposes certain positive obligations on the state to protect the lives of persons under its sovereignty in addition to negative obligations. The aforementioned positive obligations also apply to the activities carried out in the field of health. As a matter of fact, Article 56 of the Constitution stipulates that everyone has the right to live in a healthy and balanced environment, that the State shall regulate “the planning and service provision of health institutions from a single source in order to ensure that everyone maintains his/her life in physical and mental health …” and that it shall fulfil this duty by making use of and supervising health and social institutions in the public and private sectors. For this reason, the State is obliged to regulate health services -whether they are provided by public or private health institutions- in such a way that the necessary measures can be taken to protect the lives of patients. Undoubtedly, the aforementioned regulations must also include the high professional standards that health personnel must have(Ayhan Keçeli and others,B. No: 2019/24231, 23/2/2022, §§ 80-81).

15. In order to establish legal responsibility within the scope of the right to the protection and development of physical and moral existence, compensation cases to be brought before the judicial and administrative courts must fulfil the requirement of reasonably careful and diligent examination. It is also necessary for the Constitutional Court to assess whether or to what extent the courts have carried out an examination with the level of depth and diligence required by Article 17 of the Constitution in the proceedings conducted in relation to such incidents. The sensitivity to be shown by the courts in this regard will prevent the important role of the current judicial system in preventing similar violations of rights that may arise in the future(Yasin Çıldır, B. No: 2013/8147, 14/4/2016, § 57; Tevfik Gayretli, B. No: 2014/18266, 25/1/2018, § 32).

16. The essence of the applicants’ complaints is that they suffered material and moral damages as a result of faulty medical intervention.

17. In the concrete case, it was observed that the Court received an expert report from the 2nd Expertise Board of the ATK. In the report dated 23/3/2018; it was stated that the surgery for the applicant was necessary, the result was a complication, and all procedures performed for the complication were in accordance with the rules of medicine. In addition, it was stated that all diagnosis, treatment and follow-up procedures performed in the hospital were in accordance with the generally accepted principles and rules of medical science and that the administration had no fault.

18. The Court rejected the claim for pecuniary compensation based on the expert report which stated that the relevant physicians and the Hospital were not at fault. Considering that the applicants claimed in their petition of appeal that there were contradictions between the reports received before the trial and the ATK report, but did not concretely present the facts on which their objections were based, it can be said that the justifications of the judicial authorities in terms of this claim are sufficient and there is no error of appreciation. It is also understood that the applicants, who were represented by a lawyer during the proceedings, were able to apply for legal remedies against the expert report and decisions, thus ensuring their effective participation in the case to the extent necessary for the protection of their legitimate interests, examining the case file, submitting additional information and documents, and being informed about the evidence collected.

19. On the other hand, the applicants argued that their consent was not duly obtained in the concrete case and that it was unlawful to take the fingerprints of the illiterate second applicant on a document with printed statements without providing information specific to the surgical intervention. As a matter of fact, the judicial authorities determined that the administration was at fault due to the fact that the informed consent was not issued in accordance with the procedure and the law, and decided to pay a total of 55,000 TL of non-pecuniary damages due to the moral and psychological anguish the applicants suffered. There is no dispute on this issue, as it has been established by the decisions of the judicial authorities that there is a service defect due to the failure to obtain informed consent. In this case, the examination to be made by the Constitutional Court will be limited to whether the applicant has been provided with a sufficient remedy, taking into account the amount of non-pecuniary damages awarded in order to eliminate the service defect and the rejection of the claim for pecuniary compensation (for a similar decision, see İlker Arslan, B. No: 2019/36858, 23/11/2022, §§ 41-44).

20. It is considered that there is a disproportion between the amount of non-pecuniary damages determined by the judicial authorities as 55.000 TL and the circumstances of the case and the damages suffered by the applicants. After the surgical intervention performed on 11/5/2015, the first applicant received inpatient treatment in many health institutions for a long time, but due to the lack of results from the aforementioned treatments, it is seen that the amount of non-pecuniary damages awarded is low considering the rate of disability. The amount in question is also low compared to the amount of compensation determined by the Constitutional Court in similar cases (for evaluations in the same direction, see Mehmet Selim Doğan, B. No: 2020/22429, 13/12/2023, § 24).

21. On the other hand, it is observed that no assessment was made by the Chamber in terms of the claim for pecuniary compensation despite the clearly identified service defect. The rejection of the claim for pecuniary compensation without providing a relevant and sufficient justification has resulted in the applicants not being adequately compensated for their damages. Considering both the low amount of non-pecuniary damages and the rejection of the claim for pecuniary damages without any discussion, it is concluded that the applicants’ victimisation has not been adequately compensated. In this case, it cannot be said that the positive obligation of the state in terms of the right to the protection of the material and moral existence of the applicants has been fulfilled, since the decision given in the case subject to the application is considered to be insufficient in terms of eliminating the violation.

22. For the reasons explained above, it should be decided that the applicants’ right to protection and development of material and moral existence guaranteed under the first paragraph of Article 17 of the Constitution has been violated.

III. EXPENSES

23. The applicants requested a finding of violation, retrial and pecuniary/non-pecuniary compensation without specifying the amount.

24. In order to eliminate the consequences of the violation of rights identified in the application, there is a legal benefit in conducting a retrial. In this context, the work to be done by the judicial authorities to which the decision is sent is to initiate retrial proceedings and to issue a new decision that eliminates the reasons that led the Constitutional Court to the conclusion of violation and that complies with the principles set out in the violation decision (For comprehensive explanations on the characteristics of the retrial institution specific to the individual application regulated in Article 50, paragraph (2) of the Law no. 6216 dated 30/3/2011 on the Establishment and Trial Procedures of the Constitutional Court, see Mehmet Doğan. For comprehensive explanations on the characteristics of the retrial institution specific to the individual application regulated in paragraph (2) of Article 50 of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 dated 30/3/2020, see Mehmet Doğan [GK], B. No: 2014/8875, 7/6/2018, §§ 54-60; Aligül Alkaya and others (2), B. No: 2016/12506, 7/11/2019, §§ 53-60, 66; Kadri Enis Berberoğlu(3) [GK], B. No: 2020/32949, 21/1/2021, §§ 93-100).

25. Since it is understood that the retrial will provide a sufficient remedy for the elimination of the violation and its consequences, it is concluded that the compensation claims should be rejected.

IV. JUDGEMENT

For the reasons explained;

A. the allegation of violation of the right to protection and improvement of physical and moral existence is ACCEPTABLE

B. that the right to the protection and development of material and moral existence guaranteed under Article 17 of the Constitution has been violated,

C. Sending a copy of the decision to Diyarbakır 3rd Administrative Court (E.2016/909, K.2018/1041) for retrial in order to eliminate the consequences of the violation of the right to protection and development of material and moral existence,

D. Rejection of the applicants’ claims for compensation,

E. TO PAY TO THE APPLICANTS JUDGMENT EXPENSES totalling TRY 19,246.90, consisting of TRY 446.90 in fees and TRY 18,800 in attorney’s fees,

F. Payments shall be made within four months from the date of the applicants’ application to the Ministry of Treasury and Finance following the notification of the decision, and in case of delay in payment, legal interest shall be charged for the period from the expiry of this period until the date of payment,

G. It was unanimously decided on 18/9/2024 to send a copy of the decision to the Gaziantep Regional Administrative Court 3rd Administrative Case Chamber (E.2018/7293, K.2020/1187) and the Ministry of Justice for information.

This content has been automatically translated into English from the Turkish original.