Can Aesthetic Operation Fee Refund and Revision Surgery Fee be Requested at the Same Time?

The Court of Cassation ruled that material and moral compensation should be paid due to faulty plastic surgery surgery, but decided that both the refund of the price paid and the revision operation fees (defect remedy fee) cannot be requested at the same time.

Court of Cassation Decision – 6th HD., E. 2021/4727 K. 2022/3546 T. 22.6.2022

COURT :Civil Court of First Instance

At the end of the trial of the compensation case between the parties in accordance with the reversal order, the judgement given for the acceptance of the financial compensation and partial acceptance of the non-pecuniary compensation for the reasons written in the judgement was examined and the file was examined upon the appeal of the plaintiff, the defendant and the attorneys of the intervener.

– K A R A R –

The lawsuit was filed with the request for the collection of pecuniary and non-pecuniary damages due to the aesthetic operation in the nature of a work contract, the first judgement of the court dismissing the lawsuit was appealed by the plaintiff’s attorney, and the decision of the 15th Civil Chamber of the Court of Cassation numbered 2018/3043 Main, 2018/2820 Decision and dated 03.07.2018, the decision of the local court was reversed, and the local court complying with the reversal decision decided to partially accept the claimant’s claim for pecuniary damages over 19.507,44 TL and the claim for non-pecuniary damages over 4.000,00 TL, and this decision was appealed by the plaintiff, the defendant and the attorneys of the accessory defendant.

The plaintiff’s attorney stated that as a result of the meeting between his client and the defendant doctor on 01.02.2013 about breast aesthetics (breast augmentation) surgery, aesthetic intervention was decided, at this stage, without making any measurements, taking photographs and asking for details, only 300 cc round silicone will be used and this will correspond to size 85, the problem will be solved with this, and the cost is 5.000,00 TL, in addition to these, by taking fat from his body and filling his eyelid and forehead, this will make him feel better at an advanced age, for these works 2.500,00 TL, for a total of 7.500,00 TL, he asked for a deposit of 2.000,00 TL, after the surgery performed on 08.02.2013 with the agreement made, his left breast became unrecognisable due to excessive swelling and sagging of the nipples, downward tendency, at the same time, due to the filling and excessive swelling on his face, the defendant doctor told his client that he applied 260 cc when it should have been 300 cc, the breast shapes were not symmetrical, the tips hung down, the left breast was excessively swollen, it was necessary to operate again, the 2nd. The second surgery was performed 11 days later, the results were more severe than the first surgery, there was a 4-5 finger gap between the breasts, new incisions were made in the armpit, due to the fact that these incisions were made in the wrong place, the silicones coincided with the armpit and it was not possible to turn to the side and sleep, due to this defective action of the defendant, the client had to undergo at least 2 more surgeries and wait 6 months each for these surgeries, It is known that these surgeries to be performed cannot be a solution due to the defendant’s wrong incisions, he does not have the ability to pay, the new surgeries and expenses that will have to be made should be evaluated within the financial compensation demands, again, although there is no agreement with the defendant for the application of botox, it is understood that the defendant has applied botox in both surgeries from the invoices given by the defendant, for these reasons, without prejudice to his rights regarding the surplus, 5.000.00 TL pecuniary and 100.000.00 TL non-pecuniary damages from the defendant, and with his petition dated 08.01.2014, he explained that his request for pecuniary compensation was 4.500.00 TL surgery and hospital expenses and 500.00 TL loss of income due to the time he could not work.

The defendant’s attorney, on the other hand, stated that all of the medical interventions were carried out with the knowledge and consent of the plaintiff, that the positive and negative aspects of both interventions were explained in full, that the silicone prostheses of 260 cc were placed in the breast as requested by the plaintiff, that the operation was extremely successful, that she later requested the addition of silicone prostheses of 300 cc to her breasts, that although the first medical intervention yielded successful results, she received a detailed consent form upon this request and that this operation was also performed at her request, He argued that he could not relieve his psychology after this surgery, that he did not use poor quality silicone, that the world-renowned “Allergan” brand prosthesis was used, that he did not have any intervention regarding the nipples, that the width between the two breasts was the same as before the surgery, that the maximum change between 0.5-1 cm, that the fibres of the muscle to the breastbone (sternum) could not be forced too much while preparing the pocket under the muscle of the silicone prosthesis, that the plaintiff’s claims are incompatible with the medical literature, that his client is flawless, and asked for a decision to dismiss the lawsuit.

Within the scope of the file, reports were received from the 2nd Specialised Board of Forensic Medicine Institution and Istanbul University Faculty of Medicine lecturers, both reports stated that there was no defect attributable to the defendant, and the local court decided to dismiss the lawsuit by taking these reports as the basis of the judgement, and the decision was appealed by the plaintiff’s attorney. With the decision of the 15th Civil Chamber of the Court of Cassation dated 03.07.2018, although it was stated that the defendant physician did not have a defect in the reports within the scope of the file, it was reversed on the grounds that the reports were prepared as a result of inadequate examination and that the defendant physician was defective in the intervention, and that the work is not defective to the extent that it cannot be forced to accept, but a report should be obtained on what the interventions specified in the forensic medicine report are and what kind of surgeries and in what amount can be eliminated, and the plaintiff’s request items related to loss of income and non-pecuniary damages should be evaluated and a decision should be made according to the result.

The local court, which complied with the reversal, received a report from the Marmara University Faculty of Medicine, Department of Plastic, Reconstructive and Aesthetic Surgery lecturer expert within the scope of the file and a report from the legal and medical doctor expert added later, and according to the report dated 05.01.2021, it was stated that the material damage was 19.507,44 TL, including 8.500,00 TL for the surgery to be performed again, 1.961,44 TL as the wage that the plaintiff would lose in 15 days of rest, and 9.046,00 TL paid by the plaintiff to the hospital and the defendant doctor in total.

The local court took the relevant report as the basis of the judgement and decided to collect the claimant’s 19.507,44 TL pecuniary compensation and 4.000,00 TL non-pecuniary compensation receivable from the defendant with the legal interest to be accrued as of 08.02.2013, and this decision was appealed by the plaintiff, the defendant and the attorneys of the sub-defendant.

1-According to the writings in the case file and the fact that the court has made an examination and made a judgement in accordance with the reversal decision complied with, that there is no inaccuracy in the evaluation of the evidence and that it is no longer possible to examine the appellate objections regarding the finalised aspects outside the scope of the reversal, it is necessary to decide to reject the appeal request of the intervener Anadolu Anonim Türk Sigorta Şirketi, which is not ruled against the local court decision, and to reject the other appellate objections of the attorneys of the parties, which are not covered by the following subparagraphs.

2- Article 56 of the TCO, which was in force on the date of the operation and the lawsuit; “In the event that a person’s physical integrity is damaged, the judge may decide to pay an appropriate amount of money to the injured person as non-pecuniary damages, taking into account the characteristics of the incident.”

The right to moral compensation recognised to the injured person is a type of compensation foreseen in the event that the social, physical and emotional personality values of the person are attacked. It is a fact that the aim is to restore the moral balance of the person, which has deteriorated due to the unlawful act, to satisfy the person emotionally, and to prevent the damaging person from committing such an act again.

Moral compensation aims to relieve and alleviate the physical and moral suffering of the person. This compensation is the compensation for the pain and suffering experienced. Since this type of compensation aims to eliminate the pain and suffering of the person as a result of the wrongful act, the injured person may request by determining the amount he/she envisages.

Unlike in material damages, it is impossible to make a precise calculation in non-pecuniary damages. For this reason, the amount is determined by the judge in accordance with Article 4 of the TMK, taking into account the characteristics of the concrete case and the social and economic situation of the parties. The judge has a wide discretion in determining the amount of non-pecuniary damages. This amount to be determined has a unique character which has a function similar to compensation in order to create moral peace in the victim of the damage. It is not a punishment, nor does it aim to compensate a damage related to property law. Therefore, the limit of this compensation should be determined according to its purpose. The amount to be assessed should be as much as necessary to achieve the effect of the sense of fulfilment (satisfaction) desired to be obtained in the existing situation. In the justification of the Supreme Court of Appeal Unification of Jurisprudence Decision dated 22/06/1966 and numbered 7/7, the special circumstances and conditions that will affect the amount of non-pecuniary damages to be assessed are also clearly shown. Since these may vary according to each case, the judge, while using the right of discretion in this regard, should show the reasons affecting it in an appropriate (accurate) manner according to objective (objective) measures at the place of decision. While making the determination, the judge should take into consideration the characteristics of the concrete case, the economic and social status of the injured party, the purchasing power of the money, the pain and suffering experienced and to be experienced in the future.

When the concrete case is evaluated in the light of the above explanations; the plaintiff had to undergo a second operation 11 days after the first operation and in the examination made by the court, the plaintiff had to undergo a new operation to eliminate the consequences of the defective intervention of the defendant, the social and economic situation of the parties, the development of the event, the degree of pain and sorrow caused by the event in the plaintiff, it was not deemed correct to award a very low amount of non-pecuniary damages for the plaintiff.

3-As for the appeal objections of the defendant’s attorney, it is not a matter of dispute that there is a contract of work regulated in Articles 470 and following of the TCO No. 6098 in force as of the date of the establishment of the contract between the parties.

In labour contracts, in order to decide on the return of the work price paid by the owner to the contractor, the contract between the parties must have been terminated with retroactive effect, in other words, the contract must have been revoked. In order for the owner to claim the defect repair fee within the scope of positive damages, the contract between the parties must not have been revoked, in other words, the contract must still be in force between the parties.

The local court, which complied with the reversal, decided to collect this amount from the defendant by stating that the material damage was 19.507,44 TL, including 8.500,00 TL for the surgery to be performed again, 1.961,44 TL as the wage that the plaintiff would lose in 15 days of rest and 9.046,00 TL paid by the plaintiff to the hospital and the defendant doctor in total. It was not correct to make a written judgement without considering that the return of the work price paid is a result of the return from the contract (retroactive termination), in order to decide to collect the defect repair fee, the contract must be in force between the parties, and it cannot be decided to collect the return of the work price and the defect repair fee together. In addition, in the decision of the 15th Civil Chamber of the Court of Cassation dated 03.07.2018 and numbered 2018/3043 Main, 2018/2820 Decision, it was stated that although the work is not defective to the extent that it cannot be forced to accept, a report should be obtained on what the interventions specified in the forensic medicine report are and what kind of surgeries and in what amount they can be eliminated, and the request items related to the plaintiff’s loss of income and non-pecuniary damages should be evaluated and a decision should be made according to the result, and there is no reason for reversal that the work price paid by the plaintiff regarding the material compensation claim should be returned.

The work to be done by the local court consists of deciding to accept the lawsuit for a total of 10.461,44 TL in terms of pecuniary compensation, including 8.500,00 TL for the re-operation and 1.961,44 TL as the wage that the plaintiff will lose in 15 days of rest.

Pursuant to Article 117 of the TCO No. 6098, in order for default interest to be charged on a receivable, it is not sufficient for the receivable to be due, the debtor must be in default with the creditor’s duly default notice or the receivable must not be paid in the agreed final maturity. In the concrete case, the conditions in the second paragraph of Article 117 of the TCO are not in question. There is no definite maturity, and the defendant debtor has not been put in default by the plaintiff by requesting a proper notice. For the reasons explained, it was not correct to start interest on the price awarded in the case from 08.02.2013 instead of the date of the lawsuit, and the decision had to be reversed.

CONCLUSION: For the reasons explained in sub-paragraph 1 above, the appeal request of the additional intervener … is rejected, the other appellate objections of the attorneys of the parties other than the scope of sub-paragraphs 2 and 3 are rejected, the appellate objections of the plaintiff’s attorney are accepted for the reasons explained in sub-paragraph 2, the appellate objections of the defendant’s attorney are accepted for the reasons explained in sub-paragraph 3. It was unanimously decided on 22.06.2022 that for the reasons explained in subparagraph 3, the judgment shall be DISMISSED in favour of the appellants, the prepaid fee shall be returned to the appellant and the defendant upon request, the fee written below shall be collected from the appellant, and the appellant may request for correction of the decision within 15 days as of the date of notification against the decision.

For more information, you can read our article titled Aesthetic Surgery Lawsuits and Duration of Litigation.

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