In the decision of the 15th Civil Chamber of the Court of Cassation numbered 2017/1532 E. and 2018/2978 K., the partial acceptance decision of the court regarding the request for material and moral compensation as a result of the erroneous extraction of the permanent tooth during the extraction of the decaying milk tooth was examined on appeal.
In the Forensic Medicine Institution report, it was determined that the physician erroneously extracted the permanent tooth instead of the decayed milk tooth. Although the court awarded pecuniary and non-pecuniary compensation, the plaintiff appealed the decision on the grounds that the non-pecuniary compensation was low.
When the decision of the Court of Cassation is analysed, firstly, after explaining the legal dimension of the moral compensation, it is stated that the moral compensation awarded is low in terms of amount. In the justification of the decision, the decision was reversed in favour of the plaintiffs in terms of the amount of non-pecuniary damages by stating that “Considering the nature of the damage and the extent of the pain and suffering that will have to be suffered in the treatments to be carried out in addition to the treatment to be done for the elimination of the damage and the negative psychological effects that will be experienced due to the missing tooth in the processes to be passed for the implant process; Since the amount of compensation awarded is low, an appropriate amount of non-pecuniary compensation should be awarded taking into account Article 4 of the TMK.”.
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