Foundation University Hospital Officer Jurisdiction

In the decision of the General Assembly of Civil Chambers of the Court of Cassation, the competent jurisdiction for compensation lawsuits filed with the claim of medical malpractice in a foundation university hospital is determined as administrative jurisdiction . According to this decision, lawsuits for pecuniary and non-pecuniary damages involving the allegation of medical malpractice in foundation university hospitals should be filed as a full court case in the administrative court as the competent court.

Presidency of the Court of Cassation – General Assembly of Civil Chambers
No. of Esas No.: 2014/566
Decision No.: 2015/1339
Date of decision: 13.05.2015

At the end of the trial held due to the “pecuniary and non-pecuniary damages” lawsuit between the parties; Upon the request of the plaintiff’s attorney for examination of the decision dated 06.05.2011 and numbered 2011/199 E-2011/126 K. given by the Istanbul Anatolian 21st Civil Court of First Instance (Closed Kadıköy 5th Civil Court of First Instance) Court on the non-jurisdiction of the case in terms of jurisdiction, with the decision of the 13th Civil Chamber of the Court of Cassation dated 15.02.2013 and numbered 2012/17210 E-2013/3590 K;

(…The plaintiff; the defendant Y.. H., but as a result of this surgery, he lost part of his kidney and had to stay at home with severe pain, he could not work for 6 months, stating that this situation was caused by the wrong treatment, he requested a decision to collect 1.000,00 TL pecuniary compensation and 300.000,00 TL as non-pecuniary compensation from the defendant hospital with the highest commercial interest to be processed from the date of the incident, without prejudice to his rights regarding the excess.

The defendant requested the dismissal of the case on the point of judicial remedy.

The court decided that the defendant University is a public legal entity and provides public service in accordance with the provisions of the Law No. 2809 on the Organisation of Higher Education Institutions, and therefore, the administrative jurisdiction has jurisdiction for the damage caused by the defendant University’s action in the nature of service defect; the judgement was appealed by the plaintiff.

The relationship between the parties is a contract of attorneyship, and the case at hand is based on the fact that the defendant doctor, whose file has been separated, breached the duty of care arising from the contract of attorney. In the case, there is no administrative transaction or service between the parties arising from public law and which should be seen in administrative jurisdiction. Therefore, in the concrete case, it is necessary to apply the provisions of private law and the case should be heard in the courts of judicial jurisdiction. In that case, while the court should examine the merits of the case and make a judgement according to the result, it is contrary to the procedure and the law to establish a written judgement with the wrong evaluation…)

The decision was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.

APPELLANT : Plaintiff’s Counsel

DECISION OF THE GENERAL ASSEMBLY OF LAW

The General Assembly of Civil Chambers examined the appeal decision and discussed the necessity after it was understood that the appeal was filed in due time and the papers in the file were read:

The lawsuit is related to the claim for pecuniary and non-pecuniary compensation for malpractice.

Upon the appeal of the plaintiff’s attorney, the Special Chamber reversed the court’s decision on the rejection of the lawsuit petition on the grounds that the administrative jurisdiction has jurisdiction, with the reason written above; and the local court resisted the previous decision.

The resisting decision was appealed by the plaintiff’s counsel.

The dispute that came before the General Assembly of Civil Chambers by way of resistance centres on whether the case at hand, which was filed with the claim that it was damaged by the treatment service provided in the defendant foundation university hospital, should be heard in the judicial jurisdiction or in the administrative jurisdiction.

Article 130, paragraph 2 of the Constitution states that higher education institutions subject to the supervision and control of the State may be established by foundations in accordance with the procedures and principles set forth in the law, provided that they are not for profit; and the last paragraph of the same article stipulates that higher education institutions established by foundations are subject to the provisions set forth in the Constitution for higher education institutions established by the State in terms of academic studies, provision of teaching staff and security, except financial and administrative issues.

Article 3/c of the Law No. 2547 on Higher Education recognises that foundations may establish higher education institutions, and subparagraph (d) of the same article states that universities have public legal personality without discrimination. Article 5/f of the aforementioned Law states that universities shall be established by law upon the opinion or proposal of the Higher Education Council in line with the principles and objectives of development plans and programmes and within the framework of higher education planning; Article 7/d of the same Law stipulates that the duties of the Council of Higher Education include submitting proposals and opinions to the Ministry of National Education regarding the establishment of new universities and their merger when necessary, in line with the principles and objectives of the State development plans and within the framework of higher education planning, taking decisions directly or based on the proposals of universities regarding the opening, merging or closing of faculties, institutes and colleges within a university and submitting them to the Ministry of National Education for due consideration. Additional Article 2 of the aforementioned Law stipulates that foundations may establish higher education institutions provided that they are not for profit and that they comply with the principles and procedures specified in this Law in terms of academic studies, provision of teaching staff and security, except for financial and administrative matters; Additional Article 6 stipulates that the higher education institution to be established shall have a separate legal personality other than the legal personality of the foundation; Additional Article 15.article, in the event that the legal personality of the foundation is terminated in any way, the legal personality of the foundation higher education institution will continue and all kinds of movable and immovable property, tools, equipment, materials, money and rights with economic value allocated by the foundation to the legal personality of the higher education institution will become the property of the higher education institution, in this case, the authority to elect the members of the board of trustees of the foundation higher education institution and the managers of the higher education institution, In the event that the activities of the foundation higher education institution are suspended, it will be transferred to another foundation by the General Directorate of Foundations upon the positive opinion of the Council of Higher Education, and in the event that the foundation higher education institution is closed, the administration of the institution will be given to the guardianship of an appropriate State higher education institution to continue or complete education and training by the Council of Higher Education.

On the other hand, in the Supplementary Articles of the Law No. 2809 on the Organisation of Higher Education Institutions, it is ruled that the universities established by foundations are established as public legal entities; and in the Supplementary Article 39, it is stated that a new foundation university has been established in Istanbul by the “Istanbul Education and Culture Foundation” under the name of “Yeditepe University”, which is a public legal entity, subject to the provisions of the Law No. 2547 on foundation higher education institutions; and that this university consists of: a) Faculty of Medicine, b) Faculty of Law,…under the rectorate. In addition, in the cancellation case filed on the grounds that Article 3 of the Law No. 3589 on the Amendment and Adoption of the Decree Law on the Amendment of Certain Articles of the Higher Education Law No. 2547, which regulates that higher education institutions to be established by foundations can be named as “University” with the decision of the Higher Education Council, is contrary to Articles 6, 123 and 130 of the Constitution, the Constitutional Court’s decision dated 30.5.1990 and numbered E:1990/2, K.1990/10 determined that foundation universities have public legal personality.

As it is seen, foundation universities are established by law upon the opinion and recommendation of the Council of Higher Education, subject to the provisions specified in the Constitution for higher education institutions established by the State in terms of academic studies, provision of teaching staff and security, except for financial and administrative issues, provided that they do not have a profit purpose; and it is undisputed that this legal entity is a public legal entity in accordance with the provisions of Law No. 2809 and the decision of the Constitutional Court.

In the administrative structure of Turkey, which is organised on the basis of administrative regime, public legal entity is one of the criteria used in determining the jurisdiction of administrative jurisdiction. The purpose of the establishment of public legal entities is public benefit and their field of activity is public service.

As such, it is legally impossible to distinguish the hospitals of foundation universities, which are undisputedly established by law as public legal entities and provide public services, from the hospitals of state universities. In this context, the administrative jurisdiction should decide whether the damages arising from the provision of health services should be examined by the administrative jurisdiction within the scope of the principle of service defect.

In this case, the decision of the court subject to appeal, which was given to reject the lawsuit petition in terms of jurisdiction on the grounds that it does not fall within the jurisdiction of the judicial jurisdiction, since the hearing and resolution of the lawsuit filed with the request for the payment of material and moral compensation for the damage suffered by the plaintiff, who was treated at Yeditepe University Hospital, on the grounds that the plaintiff was damaged as a result of malpractice, is within the jurisdiction of the administrative jurisdiction, is correct.

As such; the local court’s resistance to the previous decision against the Special Chamber’s reversal decision on the same grounds is in accordance with the procedure and the law.

Therefore, the decision to resist should be upheld.

CONCLUSION : It was unanimously decided on 13.05.2015 that the appeal objections of the plaintiff’s attorney were rejected and the decision of resistance was upheld for the reasons shown above, and since the necessary appeal decision fee had been paid in advance, there was no need to charge any further fees.

In order not to lose your rights, we recommend that you seek the assistance of a health lawyer to determine in which court your case should be filed.

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