Doctor Forgets 2 Metres of Gauze in the Patient’s Body During Surgery

Court of Cassation 13th HD., E. 1982/7237 K. 1983/1783 T. 14.03.1983

At the end of the trial of the compensation lawsuit between the parties; the appeal of the judgement given for the dismissal of the lawsuit for the reasons written in the judgement by the plaintiff’s lawyer with a hearing; the file was examined, the file was examined, the necessity was discussed and thought:

The plaintiff claimed that he had been admitted to the defendant hospital for kidney surgery, that the defendant doctor had completed the operation on 20.4.1962, that the defendant doctor had completed the operation on 20.4.1962, that he had been operated for the second time on 22.7.1971 at …………… Numune Hospital due to medical necessity after his pain had not ceased for many years, that a (2) metre long gauze tampon had been left in his body during the first operation and that it had been detected by removing the tampon, and that he had regained his health only after that, and that he had requested material and moral compensation.

The defendant doctor defended the statute of limitations and argued that there was no intent and negligence.

The defendant hospital attorney argued that Dr. (Y.L.), who performed the surgery, was not the doctor in charge of the client hospital, and that they did not employ him as an employee, and requested the dismissal of the lawsuit in terms of hostility.

The court adopted the opinion of the Supreme Council of Health that the doctor was not at fault in the operation procedure, and dismissed the lawsuit against both defendants by accepting that the conditions of Art. 55 of the Code of Civil Procedure were not fulfilled against the hospital.

On 18.4.1962, the plaintiff Servet, who was admitted to ……… Hospital with the diagnosis of kidney stones and kidney cyst and was discharged on 30.4.1962 after a mefrectomy operation performed by Op. Dr. (Y.L.), developed a painful swelling in the hypochondrium approximately 10 years later.7.1972 at ………… Numune Hospital, a (2) metre long gas tampon, which had been forgotten in the first operation, was removed, and it was clearly determined by the evidence in the file that he regained his health only after that. The Supreme Council of Health, which examined the case file brought before it upon the instruction of the Court, with its decision dated 19 November 1975, stated that “Forgetting a gauze pad in the body during surgery is one of the rare but possible events and is one of the disputes that can be seen in major operations. In this respect, no attributable fault can be attributed to Op. Dr (Y.L.) who left a gauze pad in the first operation area”; the court adopted this opinion and dismissed the case.

The whole problem centres on determining whether the physician acted in accordance with the rules and requirements of medicine.

Fault is a subjective condition of liability. The Code divides fault into two categories: intent and negligence (Art. 41 of the Code). In negligence; a person did not intend an unlawful result to occur, nevertheless, such a result occurred due to his failure to exercise due care or to take precautions. Negligence has two degrees, light and heavy; negligence is heavy when the most rudimentary care and precautions and the duty of care are not fulfilled, which any understanding, normal and careful person would find obvious under the same circumstances and conditions. This distinction is particularly important when determining the scope and type of compensation. It is important to emphasise that all defects of the doctor within the scope of his/her profession (even if slight) should be accepted as an element of liability.

In order to prevent harm to their patients, doctors are obliged to exercise not only professional [technical] care but also the care and diligence that everyone is obliged to exercise according to their general life experience. Fault in the behaviour of a doctor arises in the event that he/she fails to fulfil his/her obligations of care and diligence and loyalty. The determination of the fault is based on an objective measure. In other words, the measure is to objectively know and apply the requirements of the profession.

The defendant operator doctor’s forgetting a gauze 2 metres long gauze in the plaintiff’s body during the operation is a gross negligence that requires him to be personally liable. In fact, forgetfulness in the field of medicine is a defective behaviour that cannot be tolerated and met with tolerance. Just because of this nature, there is no need to have the incident examined by an expert. Because; it is essential that an operator’s unprofessional, not even professional, attention during an operation should never lead to such an incident. Despite this clear situation, the Supreme Council of Health’s acceptance of the forgetting of the gauze in the operation field as one of the possible, albeit rare, incidents by setting aside the most normal obligation of attention and care is inadequate, and it is also far from grasping the nature of the problem. This opinion will not bind the court in accordance with Article 275 and the following articles of the Procedure. Moreover, there is no need to re-examine the undisputed situations that have emerged as material facts through an expert. Therefore, since it is undisputed that the gauze was left in the body, the existence of the doctor’s objective gross negligence should be accepted in the face of this clear fact, and it should not be necessary to have an expert examine whether the doctor is negligent or not. In addition to all these, Article 75 of the Law No. 1219 states that the opinion of the Supreme Council of Health on medical matters shall bind the (criminal) court. In this case, it cannot be considered that the opinion of this authority will bind the civil court. Since the provision of the law is in this direction, it cannot be accepted on the basis of Article 276/11 of the Procedural Code that the Supreme Council of Health is a compulsory expert board to be selected and consulted for medical problems that need to be resolved in civil cases.

According to the scope of the file and the evidence, it is understood that the plaintiff was admitted to the defendant hospital for surgery, the defendant doctor was called by the hospital to carry out a certain event (surgery), even if temporarily, and the operation was carried out together. In this case, the liability of the defendant hospital is a perfect liability and is related to Article 55 of the Code of Obligations.

When the plaintiff is admitted to the defendant hospital, his relationship with the other defendant doctor changes, and the doctor now deals with the patient as an employee (person used by the hospital) of the hospital. In a sense, the legal relationship with the doctor has turned into a legal relationship with the hospital. Therefore, the hospital is liable to the plaintiff pursuant to Article 55 of the Code of Civil Procedure for the doctor’s failure to exercise due care and negligence. Because the obligation imposed on the defendant hospital requires that all procedures required by science and medicine in its own hospital be carried out within the rules of science and accuracy.

The claimant’s claim for pecuniary compensation is divided into two parts. 15.000 TL is the medical expenses and other damages and 25.000 + 400.000 = 425.000 TL is the damages arising from not working (loss of labour force). There is no doubt that the plaintiff may request the compensation of these damages pursuant to Article 46 of the Code of Civil Procedure when the conditions are met. However, according to the Forensic Medicine report dated 19 April 1982, since it was determined that there was no loss of earning capacity, the reasoning of the court regarding this section was correct in terms of its conclusion by dismissing the case.

Although the case registered in the 1972/417 file of the Istanbul Twelfth Civil Court of First Instance has been consolidated with the case numbered 1972/53, it is contrary to the procedure that no positive or negative decision has been made regarding the claims in the consolidated case numbered 1972/417.

In the light of the above explanations, the court should accept the liability of the defendants as a rule, the amount of pecuniary compensation excluding loss of earning capacity and the amount of pecuniary compensation other than loss of earning capacity, the manner and characteristics of the incident, the severe fault (negligence) of the defendants, the facts such as the absence of the plaintiff’s mutual fault in the incident should be evaluated in accordance with Article 240 of the HUMK with the other evidence in the file, and the scope of non-pecuniary compensation should be assessed and determined and then awarded.

The court’s overlooking the mentioned aspects is contrary to the procedure and the law and requires reversal of the judgement.

The appeal of the defendant doctor (Y.L.) only for the attorney’s fee has not been examined for the time being according to the ground of reversal.

Conclusion : It was unanimously decided on 14.3.1983 that the judgement appealed against shall be (DISMISSED) in favour of the plaintiff, the advance fee shall be refunded if requested, and 1000 Turkish Liras of attorney fee for the hearing shall be taken from the defendant and paid to the plaintiff.

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