In the decision below, it was decided that the patient’s referral to the hospital with an intensive care unit was made late and the intervention was performed late in the referred hospital, but since the causal link could not be established between the result that occurred due to the patient’s age and chronic diseases and the late referral, it would constitute the crime of misconduct by negligence, not negligent homicide, but the decision of dismissal was appropriate since the 12-year criminal statute of limitations had expired as of the date of the decision.
12th Criminal Chamber of the Court of Cassation 2021/9436 E. , 2022/6064 K.
The judgement regarding the dismissal of the public case filed against the defendant for the offence of misconduct in office due to the statute of limitations was appealed by the representative of the participant, the file was examined and the necessity was considered:
On 03/02/2009, a laser prostadectomy operation was performed on the 74-year-old … at the Private Kadıoğlu Hospital on the date of the incident, and upon the development of rectal perforation during this procedure, the urology doctor who performed the operation … When the patient was checked about half an hour after the operation by the urology doctor who performed the operation, a blood stain was seen on the bed, when it was seen that blood was flowing from the anus during the examination, the patient was sent to the laboratory by MRI, at the end of the examination, it was learned that the complication known as perforation of the large intestine developed, taking into account the lung failure and age of the patient, the patient was referred to Okmeydanı Training and Research Hospital on the same day, the general surgeon defendant …. admitted the patient to the 2nd surgery clinic, homogram, biochemistry and electrocytes were requested at 19:09, full blood tests were performed at 02:15 – 05:15 on 04/02/2009, urology consultation was performed at 08:00 and the tests were performed in the following hours and at 10:30 the patient’s general condition deteriorated.30, the patient’s general condition deteriorated, he was taken to the intensive care unit and operated on between 14:00 – 15:45 and died at 05:00 on 05/02/2009 after the operation. When the data in the forensic and medical documents prepared about the person who was reported to have died at 05:00 on 05/02/2009 are evaluated together, the report of the Forensic Medicine 1st Specialised Board dated 13.10.2010 dated 13.10.2010 and numbered 3361 Decision; according to the conclusion part of the report; the death of the person with chronic cardiovascular and lung disease died as a result of the complication of bladder and rectum perforation that developed during the prostatectomy operation, bladder and rectum perforation is one of the expected complications in such operations, and the postoperative perforation was noticed on time, but the referral to a hospital with an intensive care unit was made late, (at 17.00) and he was referred to Okmeydanı Hospital where he was operated at 14.00 on 04.02.2009, it was unanimously stated that there was a delay in the intervention in Okmeydanı Hospital, but if he had been referred on time and intervened early, it was unanimously stated that his survival was not certain due to his chronic diseases;
In the face of all these determinations; during the trial of the public case filed against the defendant for the offence of causing the death of a person by negligence, although according to the content of the file, whether there is a causal link between the defendant’s defective action and the cause of death cannot be established without hesitation and doubt, therefore, the defendant’s action will not constitute the offence of “negligent homicide”, but as stated in the Forensic Medicine report, the defendant’s incomplete and defective action in the form of “delay in the patient’s surgery” is considered to be a violation of Article 257/2 of the Turkish Penal Code. Article 257/2 of the TPC constitutes the offence of misconduct by negligence;
The action attributed to the defendant, which is not likely to constitute a more serious offence, is sanctioned in Article 257/2 of the TPC No. 5237, and the said offence is subject to a statute of limitations of 8 years pursuant to Article 66/1-e of the TPC, and although the period of time re-runs in the presence of reasons interrupting the statute of limitations, this period will be extended by a maximum of half in accordance with Article 67/4. Although the statute of limitations was suspended during the period between 16/06/2011, when the permission for investigation was requested, and 18/11/2011, when the permission decision was finalised after the objection review, the 12-year statute of limitations stipulated in Articles 66/1-e and 67/4 of the TCC as of 05/02/2009, the date of the crime, has been suspended. Since the 12-year statute of limitations stipulated in Articles 66/1-e and 67/4 of the TCC as of 05/02/2009, which is the date of the crime, has been fulfilled as of the date of the decision when the suspension period is also calculated, since there is no inconsistency in the court’s decision to dismiss the case, the appeals of the participant’s attorney regarding the fact that the statute of limitations cannot be in question and that the defendant should be convicted are rejected, and the verdict regarding the dismissal of the case is APPROVED in accordance with the request, it was unanimously decided on 29.09.2022.
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