In the Court of Cassation Decision below, compensation for the material and moral damages alleged to have occurred due to the scoliosis surgery performed in the state hospital was requested; the Court of Cassation ruled that the defendant physician cannot be sued directly since the physician working in the state hospital is a public official, the administrative jurisdiction is in charge, the rejection decision for the defendant physician is appropriate, the rejection decision is appropriate in line with the Forensic Medicine Institution report that the situation that occurred for the defendant insurance company is a complication and there is no fault attributable to the physician, and the decision of appeal was upheld.
11th Civil Chamber of the Court of Cassation 2021/2338 E., 2022/6611 K.
In the case between the parties, upon the appeal of the decision dated 24.05.2018 and numbered 2016/588 E- 2018/452 K. given by the Ankara 1st Commercial Court of First Instance dated 24.05.2018 and numbered 2016/588 E- 2018/452 K. by the plaintiffs’ attorney, the decision dated 03.02.2021 and numbered 2018/2807 E- 2021/170 K. given by the 23rd Civil Chamber of the Ankara Regional Court of Appeals on the rejection of the appeal requests on the merits. The review of the decision numbered 2018/2807 E- 2021/170 K. by the Court of Cassation was requested by the plaintiffs’ attorney and it was understood that the petition for appeal was submitted within the time limit, and after the report prepared by the Examining Judge … for the case file was listened to and the petitions, hearing minutes and all documents within the file were read and examined, the necessity of the matter was discussed and considered:
The attorney for the plaintiffs stated that his client …. died on 30.09.2015 in Ankara Dışkapı Yıldırım Beyazıt Training and Research Hospital in order to remove the curvature in the spinal cord, that the spinal cord and nerves of his client were damaged during the surgery, that his client, who entered a vegetative state as a result of the gross negligence of the doctors who performed the surgery, will have to spend his whole life confined to bed unconscious, that his client is still 16 years old and quite young, that he has suffered material and moral damage due to gross negligence and negligence, that the doctor who performed the surgery …. intervened incorrectly in the spinal cord and nerves, the doctor … … has a compulsory financial liability insurance for medical malpractice, that it is impossible to overcome this trauma for a lifetime, on behalf of his clients, without prejudice to their rights regarding the excess, to collect 1.000,00 TL financial compensation of 500,00 TL for incapacity for work and 500,00 TL for care fee, together with the advance interest to be accrued from the date of the accident; to collect the situation experienced by his client …. and his parents, who are the other plaintiffs, considering that the situation experienced by … has affected his whole life and that he will experience great moral distress in their future lives, he requested a decision to collect a total of 450.000,00 TL moral compensation, including 150.000,00 TL for …, 150.000,00 TL for … and 150.000,00 TL for …, together with the advance interest to be accrued from the date of the accident.
The defendant … attorney stated that his client is a neurosurgeon and neurosurgery specialist physician and is currently working at Dışkapı Training and Research Hospital, and that the patient …’s complaints of difficulty in daily activities and deterioration in appearance due to gradually increasing curvature of the spine and lowering of the left shoulder in August 2015, and that he could not lie on his back due to the hump on his back, and that he applied to the hospital with complaints of widespread low back and back pain, the patient was diagnosed with adolescent idiopathic scoliosis in the examination of the patient and was hospitalised in Dışkapı Brain and Nerve Surgery Clinic, and the plaintiff was operated on 30.09.2015, 16 hours after the operation, the patient’s oxygen saturation suddenly decreased, heart rate slowed down and blood pressure decreased, the anaesthesia and reanimation team was immediately informed, the patient was put to sleep again and intubated, and as a result of detailed consultations, acute respiratory failure was diagnosed; that his client was a public official working in a public hospital, and that the lawsuits filed with claims regarding the damages incurred by civil servants and other public officials in the exercise of their powers should be filed against the administration; that the plaintiffs filed a lawsuit with the same claims and demands at Ankara 11th Administrative Court with the same claims and demands. Administrative Court of Ankara with the same claims and demands, the case is still pending and was filed before this case, the case should be dismissed due to pendency since the plaintiffs are the same, the request is the same and the claims are the same, the incident took place in a public hospital, this is an administrative action, the administrative judicial remedy is permissible in the case before us, and the court is not in charge, and they have filed a jurisdictional objection; also, for a moment, since the parties to the case before us are private law persons, it is not a commercial case in the sense of the TCC, it falls within the jurisdiction of the consumer courts according to the HMK; on the merits of the case, that his client acted diligently, collected the findings and presented them to the council, made the correct diagnosis and provided the most beneficial solution for the patient, that the damages claimed were exorbitant, that they objected to the interest and the interest rate, that the socio-economic status of the parties was not taken into account, that the amounts claimed were amounts that would enrich the plaintiffs; on the other hand, his client is not a merchant, neither his business nor the subject matter of the lawsuit is commercial, therefore the request for commercial interest is unfair; they did not accept the request to reserve the excess part of the pecuniary compensation, arguing that it is unlawful for the plaintiff to file this partial lawsuit without conditions while the entire pecuniary damage is certain, and requested a decision to dismiss the lawsuit.
The defendant’s attorney stated that the evidence and documents related to the allegations put forward by the plaintiffs were not notified to the parties, and that, in order not to mean acceptance of both the material facts and any matter alleged in the lawsuit petition; the defendant physician … was secured by a medical malpractice liability insurance policy issued by his client company in terms of risks similar to the incident subject to the lawsuit.2015/2016 term 376993712 policy numbered medical malpractice liability insurance policy issued by the client company in terms of risks similar to the incident in the case, but the fact that the defendant is covered by the policy does not mean that the coverage will be paid completely and automatically, it is not possible to accept the allegations that the insured physician is at fault in the incident subject to the lawsuit, because in order for the physician’s liability to arise, the medical standard must not be applied in the diagnoses and methods performed, where the medical standard is applied, if the intervention is in accordance with the requirements of medical science, the physician’s responsibility cannot be mentioned, the insured physician showed the maximum skill required by medicine, performed the best possible treatment, successfully applied the requirements of his profession, there was no fault of the insured physician in the incident, on the other hand, the plaintiff’s compensation claims are groundless and exorbitant; Although it does not mean acceptance, in accordance with the established case law of the Court of Cassation, moral compensation should not be used as a means of enrichment, and first of all, the plaintiff’s evidence should be notified to the parties, a report should be obtained from the Forensic Medicine Institution in terms of fault status, and if available, the criminal file should be made a matter of waiting, and in any case, the unfair and groundless lawsuit should be dismissed.
The court of first instance, according to the claim, defence, collected evidence and the entire file scope, the defendant doctor, who is employed in Ankara Dışkapı Yıldırım Beyazıt Training and Research Hospital, is claimed for compensation with the allegation that the surgery performed during and due to his duty was performed defectively, in accordance with Article 129/5 of the Constitution and Article 13/1 of the Civil Servants Law No. 657. In accordance with the article, since compensation lawsuits arising from damages caused by the defective actions of public officials while exercising their powers can be filed against the administration with recourse to them and in accordance with the conditions specified in the law, this defendant does not have the title of defendant in this lawsuit, therefore, the lawsuit filed against the defendant should be dismissed due to lack of title, in terms of the other defendant …, in order to evaluate the fault status of the doctor who performed the surgery, according to the report dated 26.12.According to the report dated 26.12.2017, “S” shaped scoliosis was detected in the person and a scoliosis operation was performed at the thoracic – lumbar 5 level, the said type of surgery is one of the methods applied among the surgical interventions performed for scoliosis, there may not be a complete improvement in the findings that cause the clinical complaints in question after such surgeries, in addition, the brain and pulmonary oedema that occurs after the surgery is described as a complication that does not arise from any medical defect or negligence that may occur after such surgeries, The report was prepared by taking into account the scope of the file and was suitable for inspection, and on the grounds that the practices of the healthcare professionals who participated in the treatment of the person in the case in question were in accordance with the principles and rules generally accepted by medical science, and therefore there was no attributable fault attributable to the relevant healthcare professionals, and that the report was prepared by taking into account the scope of the file and was suitable for inspection, the lawsuits filed by the plaintiffs …, Ahmet and Hamide against the defendants … and … were dismissed…., Ahmet and Hamide against the defendants … and …, and the dismissal of the lawsuit filed by the plaintiff … against the defendants … and …, and the dismissal of the lawsuit filed by the plaintiff … against the defendants … and … for financial compensation.
The decision was appealed by the plaintiffs’ counsel.
The Court of Appeal decided to reject the appeal of the plaintiffs’ counsel on the grounds that, according to the claim, defence and the entire file scope, there is nothing contrary to the procedure and law in the material facts and legal evaluation as a result of the discussion of the evidence and the evidence relied on in the reasoning of the decision of the Court of First Instance.
The decision was appealed by the counsel for the plaintiffs.
Considering the judgement made and the rules of law that should be applied in terms of the concrete dispute determined, it is necessary to decide to approve the decision of the Regional Court of Justice since it is concluded that the decision regarding the rejection of the appeal application made by the Regional Court of Justice in accordance with Article 353/b-1 of the CCP is in accordance with the procedure and law.
CONCLUSION: For the reasons explained above, the appeal request of the plaintiffs’ attorney is rejected and the decision of the Regional Court of Appeal is APPROVED in accordance with Article 370/1 of the CCP, the case file is sent to the Court of First Instance and a copy of the decision is sent to the Regional Court of Appeal in order to be processed in accordance with Article 372 of the CCP, and the remaining 21,40 TL appeal judgement fee written below is to be collected from the appellants, it was decided unanimously on 04/10/2022.
This content has been automatically translated into English from the Turkish original.
Av. Arb. Bahadırhan Tabak
He completed their bachelor's degree at Istanbul University Faculty of Law and their master's degree in Public Law at Çankaya University. He is currently pursuing a PhD in Medical Law at Medeniyet Üniversitesi. Starting his career as a judge, TABAK served in Elazığ and Ankara for a period of time. Most recently, while serving as a judge at the 15th Civil Chamber of the Court of Cassation, which acts as a higher court reviewing legal disputes arising from aesthetic operations, he resigned from the judiciary and transitioned to private practice. Currently, he is registered with the Istanbul Bar Association as an attorney and mediator, focusing primarily on Health Law in his legal practice. Click Here For Detailed Information