If the treatment process is ongoing, the statute of limitations starts from the date when the damage clearly emerges, since the damage tends to change

Court of Cassation Decision – 3rd HD, E. 2023/2080 K. 2023/1465 T. 16.5.2023

At the end of the judgement held due to the lawsuit for pecuniary and non-pecuniary damages between the parties, the Court decided to partially accept the lawsuit.

Upon the appeal of the decision by the plaintiff and the defendants Özel Hayat Sağlık Tesisi A.Ş. and …, the Chamber reversed the decision of the Court.

The plaintiff and the defendants Özel Hayat Sağlık Tesisi A.Ş. and … have requested the correction of the decision given by the Chamber; as a result of the preliminary examination in terms of finality, duration and other procedural deficiencies, after the decision was made to accept the petitions for correction of the decision and the report prepared by the Examining Judge was listened to, the documents in the file were examined and considered accordingly:

I. LAWSUIT

The plaintiff stated that he applied to the clinic of the defendant doctor, a neurosurgeon, in 2003 due to leg and back pain, that he was admitted to the Neurosurgery Service of the American Hospital on 01.08.2003, that he was operated by the defendant doctor in the lumbar region on the same date, that his treatment continued for 3 nights and 4 days, that he was able to walk with the help of a cane, that there was no improvement, that his pain became more severe, and that thereupon on 19.On 19.07.2004, the second operation was performed by the defendant doctor at the Private Hayat Hospital, he was treated at Hayat Hospital for four days after the operation, but there was no improvement in his condition, he could not stand up, he was transferred from the Private Hayat Hospital to Av. Cengiz Gökçek State Hospital in a state of incontinence, and he was discharged bedridden on 09.08.2004.2004, he was discharged bedridden on 09.08.2004, then he was treated at Gaziantep Faculty of Medicine Hospital for 13 days, he suffered a permanent loss of 80% labour force, he was taken under treatment at Ankara Dışkapı Training Hospital on 14.06.2006, the doctors who carried out his treatment with the help of physical therapy and prosthetic devices said that the previous surgery was performed incorrectly, his nerves were damaged, and even if his treatment continued with the help of physical therapy and prosthetic devices, he would never be the same as before the surgery.000.00 TL pecuniary and 100.000.00 TL non-pecuniary compensation, increased the pecuniary compensation claim to 986.141.84 TL with the amendment petition dated 29.09.2020, and requested interest to be charged on all pecuniary and non-pecuniary compensation claims at the highest rate applied to deposits starting from 01.08.2003, the date of the first surgery.

II. ANSWER

The defendant … A.Ş. has requested the dismissal of the lawsuit filed in violation of procedure and law.

The defendant …V. Gaziantep American Hospital attorney argued that the 3-year statute of limitations has expired in the case, therefore the lawsuit should be dismissed due to the statute of limitations, the plaintiff was examined by Dr. … at Hürriyet Medical Centre and upon the decision of surgery, he purchased hospital services from our client hospital, there is no permanent or contractual relationship between Dr. … and our client hospital and requested the dismissal of the lawsuit.

The defendant … defended that he did not have any fault in the operation he performed and requested the dismissal of the lawsuit.

III. COURT JUDGEMENT

The court decided to dismiss the case with the decision dated 04.04.2013 and numbered 2007/155 E. 2013/186 K.

IV. REVERSAL AND THE JUDICIAL PROCESS AFTER REVERSAL

A. Reversal Decision

1. The claimant’s counsel appealed against the court decision.

2. 13th Civil Chamber of the Court of Cassation (Closed) dated 25.04.2014 and 2013/29446 E., 2014/13272 K. with the decision no; The Forensic Medicine report taken as a basis for the judgement is not sufficient to determine whether the defendants are at fault or not, in that case, the court should determine whether the defendants are at fault or not by obtaining a report explaining the reasons from the expert committee to be selected from the medical faculty, which is an expert in the surgeries the plaintiff underwent, suitable for party, court and Supreme Court supervision, and it should be considered that the burden of proof regarding informed consent is on the defendant, In the event that it is determined that the post-operative symptoms are complications, it should be considered whether the defendant has been enlightened or not, the evidence of the defendant in this regard should be collected and a decision should be made in accordance with the result, but the Court’s decision was reversed on the grounds that it is contrary to the procedure and the law that the Court has established a written judgement with incomplete examination by ignoring these aspects.

B. Decision rendered by the Court in Compliance with the Reversal

With the decision of the Court dated and numbered above, according to the expert report dated 26.12.2019 received in line with the reversal order, the surgical treatment applied in the case of spinal stenosis causing cauda equina syndrome in terms of the surgery performed by the plaintiff at SEV American Hospital on 02.08.2013 was an emergency intervention, according to Article 8 of the European Convention on Biomedicine; “In the event that appropriate consent cannot be obtained due to an emergency, any intervention medically necessary for the health of the individual concerned may be performed immediately.”, the first surgical treatment was in accordance with the procedure, in terms of the surgical treatment dated 19.07.2004 at the Private Hayat Hospital, it was stated that there was only a document in the file that the surgery was permitted and that there was no document of informed consent, and that the operation dated 02.08.2003 at SEV American Hospital (…) was performed in accordance with the Convention on Biomedicine.2003 at SEV American Hospital (…) is one of the emergencies in Article 8 of the Convention on Biomedicine and informed consent is not required, in terms of the other defendants; according to all the reports in the file, the situation that occurred in the form of increased spinal cord damage in the plaintiff after the aforementioned operations due to the operation dated 19.07.2004 is a complication, the procedures performed by the defendants in the aforementioned operation are in accordance with the medical science committees, they are not at fault, but within the scope of the file, the defendants regarding the operation dated 19.07.2004 dated operation, there is no evidence that the plaintiff patient was sufficiently enlightened in terms of the complication in the form of increased spinal cord damage, and the witnesses heard in the file did not say that the plaintiff was enlightened in terms of this complication, therefore, the defendants did not fulfil their burden of proof with the scope of the file and they are responsible for the resulting damage in accordance with the aforementioned legal regulations, according to the report dated 24.12.According to the report dated 24.12.2018, the plaintiff is 100% disabled due to the incident, there is an appropriate causal link between the action of the defendants and the damage caused to the plaintiff, since the incident subject to the lawsuit is based on the proxy contract, Article 126 of the Code of Obligations No. 818 (Article 147 of the TCO) will be applied in the incident, according to this legal regulation, the receivables arising from the proxy contract are subject to a five-year statute of limitations, 19.Considering the date of the operation dated 07.07.2004 and the date of the lawsuit, the five-year statute of limitations has expired as of the date of amendment, therefore the objections of the defendants to the statute of limitations are appropriate, although the defendant … Although the attorney of the defendant … did not object to the statute of limitations, the responsibilities of the defendants are based on the provisions of succession, and the other debtor can also benefit from the statute of limitations defence raised by one of the joint debtors, although the plaintiff has requested interest from the date of the first surgery, on the grounds that the event arose from the attorneyship contract, that the debtor of the debtor due pursuant to Article 101 of the Code of Obligations numbered 818 (Article 117 of the TCO) will default with the notice of the creditor, and that the interest should be awarded as of the date of the lawsuit since there is no evidence in the file that the defendants defaulted before the date of the lawsuit; as regards the defendant …. and Education Foundation, and partially accepted for the other defendants, and the financial compensation of 10,000.00 TL should be awarded jointly and severally from the defendants Özel Hayat Sağlık Tesisi A.Ş. and …A.Ş. and … jointly and severally to be paid to the plaintiff, and the claim for the excess to be rejected due to statute of limitations, and the claim for the non-pecuniary damages of 80,000.00 TL to be paid to the plaintiff jointly and severally from the defendants Özel Hayat Sağlık Tesisi A.Ş. and … as of the legal interest to be accrued as of the date of the lawsuit, and the claim for the excess to be rejected.

V. APPEAL

A. Appellant

The plaintiff and the defendants Özel Hayat Sağlık Tesisi A.Ş. and … have appealed against the above-mentioned decision of the court within the time limit.

B. Rationale and Conclusion

The Chamber’s decision dated 20.01.2022 and numbered 2021/2771 E., 2022/221 K. In the concrete case, if the damage arising in the concrete case shows a tendency to change later within its own special structure, in short, if there is a change in the results (quality or scope of the damage) caused by the action or transaction that caused the damage, the developing situation and therefore, the changes caused by this developing situation on the quality and scope of the damage (change in the damage) will be in question, In such cases, since the issue that will determine the scope of the damage is this developing situation and the damage cannot be fully realised until this development is over, the statute of limitations will start to run with the learning that this developing situation has stopped or disappeared, in this case, not from the date of the surgery subject to the lawsuit, It is contrary to the procedure and the law to decide to partially dismiss the lawsuit due to the statute of limitations in terms of the amended amount without considering that the statute of limitations is started from the date when the damage is clearly revealed, the attorney’s obligation to account continues and accordingly, the damage cannot be known before the treatment is over and the statute of limitations will not start to run until the damage is learned, Again, considering that the dispute arises from the attorneyship contract, the decision was reversed on the grounds that the defendant party should be deemed to have defaulted for the entire damage from the date of the damage, and that it is contrary to the procedure and the law to award an attorney fee in favour of the defendants in violation of the provisions of Article 13 of the Attorney Minimum Fee Tariff in force on the date of the decision.

V. CORRECTION OF JUDGEMENT

A. Applicant for Correction of Decision

Against the above-mentioned decision of the Chamber, the plaintiff and the defendants Özel Hayat Sağlık Tesisi A.Ş. and … have requested a correction of the decision.

B. Reasons for Correction of Decision

1. The plaintiff’s attorney stated that although the court dismissed the case against the defendant … on the grounds that the operation dated 02/08/2003 was one of the emergencies in Article 8 of the Biotype Agreement and that there was no need for approval, the plaintiff went to Tevfik’s private practice 3-4 days before this first operation, and after the examination there, the doctor decided to operate and the defendant doctor used the operating theatre … Hospital, where the defendant doctor used the operating theatre, and this situation shows that it does not fall within the scope of very urgent surgery within the scope of Article 8 of the Biotype Convention, and the lawsuit should be accepted in terms of … Hospital, and that it was erroneous to reject the claim for non-pecuniary damages while the claim for moral damages should be fully accepted, and requested the decision to be reversed.

2. The defendant, Özel Hayat Sağlık Tesisi A.Ş. The defendant, Private Hayat Sağlık Tesis A.Ş., claimed that the defendant doctor had a private practice at the time of the intervention and was also a physician at the state hospital, that there was no employment contract between the defendant doctor and the hospital, that there was no fault attributed to the client hospital in the reports received, that the doctor performed the necessary operation on the plaintiff, whose treatment was previously undertaken by the doctor, by making use of the facilities of the hospital, that the physician who performed the intervention was a self-employed physician, and that the obligation to provide information and to issue the informed consent form in accordance with the contract between the plaintiff and the defendant doctor belonged to the doctor and requested the decision to be reversed.

3. The defendant … attorney claimed that the plaintiff did not request interest in the lawsuit petition, that interest cannot be requested for the amendment since interest is not requested in the lawsuit petition, otherwise the interest should start on the date of the lawsuit, that it is understood from the reports received that he was not at fault in the treatment, and that it is erroneous to calculate compensation and fault without investigating fault in terms of consent, and requested the decision to be reversed.

C. Justification

1. Dispute and Legal Characterisation

The dispute relates to the claim for material and moral damages incurred due to the surgeries performed by the defendant doctor in the defendant hospitals.

2. Relevant Law

1. The power of attorney agreement is regulated under Articles 386 et seq. of the abrogated Code of Obligations numbered 818 (Article 502 et seq. of the Turkish Code of Obligations numbered 6098).

2. Although the agent is not liable for the failure to achieve the result he/she has directed while performing the work subject to the duty of attorney, he/she is liable for the damages arising from the lack of diligence in his/her efforts, works and transactions and behaviours in order to achieve this result. The professional agent is obliged to act diligently and is liable even for the slightest defect (Art. 321/1 of the Code). Therefore, all defects of the doctor and the hospital within the scope of their profession should be accepted as an element of liability, even if they are slight. The attorney is obliged to fulfil all professional conditions in order to prevent harm to the patient, to determine the patient’s condition medically in a timely and timely manner, to take the measures required by the concrete situation in a complete manner, and to determine and apply the appropriate treatment without delay. In cases where there is even a minimal doubt, the doctor is obliged to carry out investigations to eliminate this doubt and to take preventive measures in the meantime. When making a choice between various treatment methods, the characteristics of the patient and the disease should be taken into consideration, attitudes and behaviours that may put the patient at risk should be avoided and the safest way should be chosen. Indeed, the client (patient) has the right to expect meticulous care and attention at all stages of the treatment from the proxy who performs a professional work. An agent who fails to exercise due diligence shall be deemed not to have duly performed his/her mandate pursuant to Article 510 of the TCO (Article 394/1 of the CO). The same applies to health institutions where the doctor works in the capacity of an employee (Chamber’s decision dated 07.12.2022 and numbered 2022/5767 E., 2022/9263 K., dated 26.01.2022 and numbered 2021/5385 E., 2022/462 K., dated 23.06.2020 and numbered 2020/1255 E., 2020/5068 K.)

3. Evaluation

According to the report received by the court in accordance with the reversal decision complied with by the court, the condition that occurred in the plaintiff is a complication, the first surgery performed on the plaintiff was within the scope of emergency surgery, but since the plaintiff was not informed in the second surgery, the defendant doctor and the defendant … Tesisi A.Ş. are responsible for the plaintiff’s damages, the defendants could not prove that they enlightened the plaintiff, the defendant doctor performed the surgery at the defendant … Tesisi A.Ş. by the defendant doctor, the plaintiff did not explicitly waive the interest claim in the lawsuit petition and the plaintiff can claim interest by amendment in a period when the original claim has not been terminated by payment; it was necessary to decide to reject the requests for correction of the decision of the plaintiff and the defendants Özel Hayat Sağlık Tesisi A.Ş. and …..

VI. DECISION

For the reasons explained;

Rejecting the requests for correction of the decision of the Plaintiff and the Defendants Özel Hayat Sağlık Tesisi A.Ş. and …,

The following fines and the remaining decision correction fees shall be imposed on those requesting correction,

On 16.05.2023, it was decided by majority vote.

VOTE AGAINST

The contractual relationship between the hospital and the patient may be established in the form of a full hospital admission contract or a partial hospital admission contract. The patient applies directly to the hospital and does not make a contract with the physician. The hospital may offer the patient the right to choose among the available physicians. This type of contract is a mixed contract. The hospital has obligations such as treatment, care, cleaning, security, room allocation, catering. Typical contract provisions that are appropriate for each obligation are applied. Such as power of attorney contract for treatment, service contract for cleaning, sales contract for cafeteria service. In this case, a full hospital admission contract is established. Or the hospitalised patient may request a physician from outside the hospital. In this case, the patient enters into a separate contractual relationship with the physician and a separate contractual relationship with the hospital. The physician may have treatment obligations and the hospital may have room allocation, cleaning, maintenance, supply of tools and equipment, provision of auxiliary personnel and organisation obligations. In a split hospitalisation contract, the hospital shall not be liable for damages arising from the physician’s diagnosis and treatment defects.

In the case in question, the contract with the defendant doctor is an agency contract, the contract with the defendant … Tesisi A.Ş. is a split hospital admission contract, and the hospital does not have a diagnosis and treatment obligation in the contract with the hospital. The hospital’s responsibility covers obligations such as maintenance, cleaning, security, room allocation, catering, etc., therefore, the hospital cannot be held responsible for treatment. As a result of the trial, it was determined that the condition of the plaintiff was a complication, but the defendant doctor was responsible for not informing the plaintiff about the complication.

Since the defendant … Tesisi A.Ş. has no responsibility for treatment, so the obligation to inform the patient cannot be mentioned. As such, since there is no defect in this regard due to the use of only the operating theatre, since the responsibility of this defendant cannot be mentioned, it should be decided to dismiss the lawsuit filed against it, the defendant … Tesisi A.Ş.’s request for correction of the decision should be accepted and the decision should be reversed in its favour, I cannot agree with the majority decision.

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