Malpractice Litigation

Malpractice lawsuits are lawsuits filed by healthcare professionals, particularly physicians, for damages caused to patients during the diagnosis, examination, treatment and care processes within the scope of their profession. Malpractice lawsuits have both criminal law and compensation law dimensions. In other words, in a malpractice case, the healthcare professional who committed malpractice may be criminally liable, as well as the compensation of the material and moral damages of the person or persons who have suffered damage. Malpractice may also have consequences in terms of disciplinary law.

Malpractice Litigation in Turkey

Malpractice lawsuits are lawsuits filed as a result of medical malpractice by physicians and other healthcare professionals. Basically, there are two types of medical malpractice lawsuits. The first of these is under criminal law, if there is a crime committed by the healthcare professional as a result of negligent action due to medical malpractice, it may be possible to file a criminal case. The criminal case is opened with the indictment prepared by the Public Prosecutor upon the complaint of the victim. The other type of medical malpractice lawsuit is the compensation lawsuit to be filed by the victim against the physician or the responsible healthcare professional in order to compensate for the damages suffered by the victim. We will also mention the consequences of malpractice in terms of disciplinary law in our article. Although physicians are generally referred to as physicians in our article, other healthcare professionals may also face malpractice lawsuits due to their faulty practices within their job descriptions.

Malpractice Litigation in terms of Criminal Liability

In criminal cases, it is examined whether the physician has a defect such as breach of the duty of care, violation of medical standards and legislation. If it can be determined by an expert committee that the physician did not follow medically standard practices, acted contrary to the requirements and rules of medicine, was negligent, and that there is a causal link between the resulting damage and the physician’s action, a conviction can be established without causing negligent injury or negligent death. As a result of these cases, it may also be possible to decide that the physician is prevented from practicing his/her profession for a certain period of time.

In terms of criminal liability, the prosecution of physicians and healthcare professionals, whether in the public or private sector, is subject to an investigation permit to be issued by the professional liability board established within the Ministry of Health. The Public Prosecutor must obtain permission from the board before starting the investigation procedures. If the Professional Responsibility Board authorizes the investigation, evidence is collected and the process proceeds with the criminal case to be filed by the Public Prosecutor. The decision to be rendered by the Criminal Court is subject to objection, appeal and appellate review.

Malpractice Lawsuits in terms of Compensation Liability

After determining whether the physician is at fault in the compensation case, it is decided to compensate the damage by determining how much the victim’s damage is and to what extent the physician is responsible for this damage. Within the scope of financial compensation in malpractice cases, damage items such as treatment expenses, permanent or temporary incapacity compensation, compensation for deprivation of support, accommodation and transportation costs related to the treatment process can be claimed. In addition, non-pecuniary damages may also be claimed for the pain and suffering caused by malpractice.

Consumer Courts are in charge of lawsuits filed by physicians and healthcare professionals alleging malpractice if the healthcare service is provided in a healthcare facility belonging to the private sector, i.e. private hospital, medical center, private practice. Application to a mediator is mandatory before the malpractice lawsuit. Before the lawsuit, the mediator, who is an expert in health law, brings the parties together and tries to create a ground where the parties can reach an agreement. If an agreement is reached, the agreement document prepared has the force of a court decision. In case of failure to reach an agreement, the lawsuit is initiated with the minutes of non-agreement to be kept.

If the physician or health personnel is employed at a state hospital or university hospital and the medical malpractice occurred there, the lawsuit will be filed as a full remedy case at the administrative court. There is no mediation process for full remedy lawsuits. However, there is an obligation to apply to the administration before the full judgment lawsuit. As a result of the application to the administration, if the administration does not compensate a damage, a lawsuit is filed. In addition, a lawsuit cannot be filed directly against the health professional in the full judgment cases in administrative jurisdiction, the lawsuit is directed to the administration to which he/she is affiliated.

In general, whether it is a criminal case or a compensation case, these cases are based on the same basic logic. However, since these lawsuits are brought before different courts and are subject to different procedural provisions, there are some jurisdictional differences. The injured patient or his/her relatives may file a criminal complaint to the Public Prosecutor’s Office for the filing of a criminal case, and a compensation case may also be filed at the same time.

Malpractice in terms of Disciplinary Law

Malpractice also has consequences in terms of disciplinary law. If the malpractice case occurred in a public health facility, an administrative disciplinary investigation is initiated against the relevant healthcare professional. As a result of the investigation, if it is concluded that the health personnel is at fault, penalties such as warning, reprimand, salary deduction, suspension of progression, dismissal from the civil service may be in question.

If there is an allegation of malpractice against a physician providing medical services in the private sector, there may be a complaint to the medical chambers in terms of disciplinary liability. In this case, as a result of the examination to be carried out by the disciplinary boards of the medical chambers, penalties such as warning, fine, suspension from the profession can be applied.

Malpractice Case Examples

Some examples of malpractice lawsuits are shared with you below:

• Obtaining the informed consent of the patient before the treatment is one of the primary conditions for the procedure to be in accordance with the law. For example, prior to a surgical intervention to be performed for the treatment of a patient, it is mandatory to obtain information and consent regarding the reasons for the necessity of the surgery, its risks, possible complications and the postoperative process. Failure to obtain informed consent will lead to the physician’s liability.
• The physician will be liable if it is determined that the medication used by the physician is not appropriate for the diagnosis of the disease, if the wrong medication aggravates the patient’s condition or causes other side effects, diseases, tissue and limb losses.
• The legal liability of the physician will arise in cases such as the physician’s misdiagnosis, making a mistake in the diagnosis of the disease, depriving the patient of the treatment that should be applied as a result of misinterpretation of the medical condition of the patient, and aggravating the patient’s condition as a result of delay in treatment.
• Failure to perform medical and aesthetic procedures such as aesthetic interventions, prosthetic dental applications as promised, failure to achieve the expected benefit from the aesthetic intervention as a result of the physician’s malpractice, or on the contrary, the occurrence of unexpected side effects are also examples of the physician’s liability for compensation.

With the regulation made in 2022, the Professional Responsibility Board was established (except for physicians working at state universities) and the requirement to obtain permission from the Board for criminal investigations to be initiated against physicians, dentists and other health personnel working in public, private health institutions and private-foundation universities with the allegation of medical malpractice has been introduced.

Is there a Malpractice Law?

Although malpractice law is a widely searched concept on the internet, there is no such law in our legislation today. From time to time, a number of proposals and drafts have come to the agenda under the name of draft law in this field, but these have not been accepted and have not been enacted.

In malpractice cases, the provisions of the Turkish Code of Obligations and the Law on the Protection of Consumers are applied in terms of compensation liability, and the provisions of the Turkish Penal Code are applied in terms of criminal liability.