Material and Moral Compensation for Extraction of Permanent Tooth Instead of Milk Tooth

Court of Cassation Decision – 6th HD, E. 2022/3284 K. 2024/224 T. 17.1.2024

COURT :Civil Court of First Instance

As a result of the appellate review of the decision rendered in the compensation case between the parties, the Chamber has decided to revoke the Court’s decision.

As a result of the retrial conducted by the court in compliance with the reversal; it was decided to partially accept the lawsuit.

The court decision was appealed by the attorneys of the defendants; after the preliminary examination in terms of finality, duration, appeal requirement and other procedural deficiencies, it was decided to accept the petition for appeal and after the report prepared by the Examining Judge was listened, the documents in the file were examined and considered accordingly:

I. LAWSUIT

In the petition of lawsuit, the plaintiffs’ attorney stated that during the extraction of the decayed milk tooth of the plaintiffs’ minor daughter … by the other defendant dentist working in the hospital belonging to the defendant company, the permanent tooth next to her was also extracted, for this reason, a criminal complaint was filed against the defendant and … with the decision of the 4th Criminal Court of Peace, a fine of 2.700.00 TL was ruled against the defendant for the offence of negligent injury, the defendant … … and the dentist’s reckless and erroneous actions that are not in accordance with his medical practice, and that the plaintiff minor is in great distress and victimisation, and that financial compensation should also be awarded since a long period of his life will pass with aesthetic losses, and requested the collection of a total of 22.000,00 TL compensation, 2.000,00 TL pecuniary and 20.000,00 TL non-pecuniary, from the defendants with legal interest.

II. ANSWER

In his reply petition, the Defendants’ counsel stated that the lawsuit was filed by … Sağlık Hizmetleri A.Ş, that the lawsuit should be directed against … Sağlık Hizmetleri A.Ş., that the lawsuit should be dismissed due to the statute of limitations since it was filed after the 1-year statute of limitations has expired, that it was determined that the plaintiff minor had advanced caries in other deciduous teeth other than the problematic tooth, For this reason, although the doctor acted meticulously while removing the decayed tooth, he argued that the oral condition of the minor and the complications caused by the complications resulted in the extraction of the intact tooth, and that the amount of non-pecuniary damages claimed for the tooth, which is likely to decay and be extracted within a few years after extraction due to its oral structure, is exorbitant and requested the dismissal of the lawsuit.

III. COURT JUDGEMENT

With the decision of the Court dated 22/10/2015 and numbered 2012/139 Esas, 2015/353 Karar, it was decided to partially accept the lawsuit, to accept the claim for pecuniary compensation by adhering to the request and to award the claimant 2.000.00 TL pecuniary compensation together with the legal interest to be accrued from the date of the lawsuit, and to partially accept the claim for non-pecuniary compensation, to award the claimant 2.000.00 TL non-pecuniary compensation together with the legal interest to be accrued from the date of the lawsuit, jointly and severally from the defendants.

IV. REVERSAL AND THE JUDICIAL PROCESS AFTER REVERSAL

A. Reversal Decision

1. The attorneys of the parties filed an appeal against the court judgement within due time.

2. With the decision of the 15th Civil Chamber of the Court of Cassation (closed) dated 10.07.2018 dated 10.07.2018 and numbered 2017/1532 Main, 2018/2978 Decision of the 15th Civil Chamber of the Court of Cassation (closed), it was decided that the court’s acceptance of the existence of damage and fault is appropriate in terms of the severity of the negligence and fault of the defendant doctor and the company, the permanent physical damage of the plaintiff due to the faulty treatment, but when the nature of this damage and the extent of the pain and suffering that the plaintiff will have to suffer in the additional treatments to be made for the elimination of this damage and the negative psychological effects that the plaintiff will experience due to the missing tooth in the processes to be passed for the implant process are evaluated together; Since the amount of compensation awarded is small, it is necessary to award an appropriate amount of non-pecuniary damages taking into account Article 4 of the TMK. It was decided to overturn the decision on the grounds that an appropriate amount of non-pecuniary compensation should be awarded by taking into account Article 4 of the TMK, and that the non-pecuniary compensation awarded by the court was not reasonable.

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

With the decision of the Court dated 03/12/2020, numbered 2019/255 Main, 2020/249 Decision, as a result of the evaluation made regarding the issues stated in the reversal order and subject to the reversal, it was decided to accept the lawsuit in part, to award the 2.000.00 TL pecuniary compensation to the plaintiff jointly and severally from the defendants together with the legal interest to be accrued from the date of the lawsuit, to award the 7.000.00 TL non-pecuniary compensation to the plaintiff jointly and severally from the defendants together with the legal interest to be accrued from the date of the lawsuit, and to reject the request for more.

V. APPEAL

A. Appellant

The attorneys of the defendants appealed against the above-mentioned decision of the Court within the time limit.

B. Grounds of Appeal

In their petitions on appeal, the attorneys of the defendants stated that the damage was not caused by the action of the client doctor, that there was no causal link between the action and the damage, which is one of the most important conditions of material and moral compensation, that during the extraction of decayed milk teeth in children, the permanent teeth adjacent to this tooth, which have not yet completed their formation, are a common complication of such operations, that the plaintiff …’s genetically missing some of his teeth, although he was 7 years old at the time the treatment was started, his oral care was extremely inadequate, the fact that there were advanced decays in other deciduous teeth other than the problematic tooth in question was not subject to evaluation, it was not correct to take into account the current price tariffs of 2015 while determining the amount of financial compensation, and the amount of non-pecuniary damages determined by the court was too much.

C. Justification

1. Dispute and Legal Characterisation

The dispute is related to the claim for material and moral compensation arising from faulty medical intervention

2. Relevant Law

Articles 427 and following articles of the Code of Civil Procedure numbered 1086, Articles 49, 56 of the Turkish Code of Obligations numbered 6098. Article 4 of the Turkish Civil Code numbered 4721.

3. Evaluation

1. The reversal of the final decisions of the courts is possible in the presence of one of the reasons set forth in Article 427 and paragraph 2 of Article 439 of the abrogated Law No. 1086, which continue to be applied by reference to paragraph 2 of the provisional Article 3 of the Law No. 6100.

2. Although the decision has been appealed by the attorneys of the defendants in terms of the amount of non-pecuniary damages awarded, considering the situation of the plaintiff in the concrete case, the fault ratios of the parties, the social, economic conditions, the economic conditions of the day, the amount of non-pecuniary damages awarded by the court is appropriate, and the appeal objections of the defendants in this respect have not been deemed appropriate and should be rejected.

3. As for the other grounds of appeal raised by the attorneys of the defendants, since the court has complied with the reversal order, the appeal objections of the defendants should be rejected since these issues constitute a procedural vested right for the plaintiff.

4. It is understood that the decision examined on appeal is in accordance with the reversal, that there is no inaccuracy in the application of the rules of law to the concrete case in the decision and the reasoning of the decision, and that it is not possible in law to re-examine the aspects that constitute a vested right in favour of the other party by complying with the reversal, and the reasons of appeal put forward by the attorneys of the defendants are not deemed to be of a nature that requires the decision to be reversed.

V. DECISION

For the reasons explained;

With the rejection of all the objections of the defendants’ attorneys, the decision, which is in accordance with the procedure and law, is APPROVED,

The following appeal costs shall be charged to the appellant defendants,

The way of correction of the decision shall be open within 15 days after the notification of the decision,

On 17.01.2024, it was unanimously decided.

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