In the following Regional Court of Appeal decision, it was concluded that the fact that the physician did not provide a receipt in the claim for compensation for medical malpractice should not result in favour of the patient. Even if the physician did not provide a receipt for the treatment fee, the court will be able to determine the actual damage through an expert.
Regional Court of Appeal Decision – Istanbul BAM, 19th HD, E. 2017/796 K. 2017/671 T. 18.5.2017
In the examination of the appeal requests of the plaintiffs, it is understood that the plaintiffs’ joint children stayed in intensive care in the hospital for 4 days due to the wrong medicine, the child was hospitalised in the hospital on 09/02/2012 and discharged on 12/02/2012, the plaintiffs could not document their expenses because they could not get a receipt with the severity of the incident at the hearing, and they requested the expert to make a calculation according to the content of the incident.
As a rule, the damage and its extent must be proved by the claimants. However, in cases where the actual amount of the damage cannot be proved, the scope of the damage is determined by the judge, taking into account the ordinary course of business and the measures taken by the injured party. It should not be ignored that there is a duty beyond the authorisation given to the judge here. In other words, in order to determine the treatment expenses that cannot be documented, a report may be obtained from an expert in this regard, or the judge may also assess the customary expenses in accordance with Article 50 of the T.B.K. As such, although the compensation of the material damage caused by the damage caused to the plaintiffs’ child due to the fault of the defendants has not been documented by the plaintiffs; Although the compensation for the pecuniary damage caused to the plaintiffs’ child due to the defendant’s negligence is not documented by the plaintiffs, the scope of the file and the fact that the plaintiffs stayed in intensive care for 4 days in the hospital, the expenses they incurred during these 4 days may correspond to 500,00 TL in accordance with the ordinary course of life, this amount is appropriate to the case, and in accordance with the principle of procedural economy, since it is understood that there is no need for a re-expert examination in terms of pecuniary compensation due to the prolongation of the proceedings, the decision of the court of first instance to reject the pecuniary compensation is contrary to the procedure and the law by accepting the plaintiffs’ appeal requests. The case law of the 4th Civil Chamber of the Court of Cassation numbered 2003/15748 E. 2004/5325 K. is also in this direction.
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