Medical Malpractice Full Jurisdiction Case 1 and 5 Year Periods Beginning

Pursuant to Article 13 of the Administrative Procedure Law No. 2577, those whose rights have been violated by administrative actions must apply to the relevant administration within one year from the date they learnt about these actions upon written notification or otherwise, and in any case within five years from the date of the action, and request the fulfilment of their rights before filing an administrative lawsuit. In the event that these requests are partially or completely rejected, a lawsuit may be filed within the lawsuit period starting from the day following the notification of the transaction on this subject, or from the date of expiry of this period if the request is not responded within thirty days.

Therefore, the expiration of the periods of 1 year from the date of learning of the action and 5 years from the date of the action in any case leads to the rejection of the full judgement lawsuits on the grounds of time. However, there are various decisions of the Council of State on when exactly these periods, especially the short period of 1 year, will start, which must be known before the full judgement actions to be filed by those whose rights are violated due to the health services of the administration.

When we look at the precedent decisions, it is stated that the administrative nature of the action and the occurrence of the damage caused by it are mandatory in order to file a full judgement action. In the precedent decisions, it is stated that in some cases, the administrative nature of the action can be determined after the determination of whether the damage has occurred as a result of the personal fault of the personnel or as a result of the duty fault.

15th Chamber of the Council of State, E. 2016/4241 K. 2016/3896 T. 31.5.2016: “Article 13 of the Administrative Trial Procedure Law No. 2577 stipulates that those whose rights are violated by administrative actions must apply to the relevant administration within one year from the date they learn of the administrative actions and within five years from the date of the administrative action and request the fulfilment of their rights. Since the starting date of the five-year period for the application to the administration stipulated in the aforementioned provision of the Law causes hesitations from time to time, it is necessary to examine this issue. Full judgement lawsuits refer to the compensation of the damages suffered due to the administrative action. Therefore, in order to file a full remedy action, it is mandatory that the administrative action and the damage caused by it must be established. Administrative action refers to an action, a behaviour, an attitude or inaction during the function of the administration, and to purely material dispositions that are not related to administrative decisions and actions, in other words, that are not preceded or based on an administrative decision or action. The administrative nature of the acts in question and the damage caused by such acts may sometimes be revealed at the time of the act, sometimes much later, as a result of various investigations, examinations and even criminal proceedings. Particularly in civil actions to be filed for the compensation of damages arising out of the official misconduct of public officials who, while making an administrative act, act in violation of the rules, procedures and requirements of the legislation, the duty undertaken and the service carried out, to the extent and in a manner that can be attributed to him/her, but still by taking advantage of and using official powers, duties and opportunities, and therefore preventing and preventing him/her from leaving his/her administration completely, the administrative nature of the act can sometimes be determined after the determination of whether the damage has occurred as a result of the personal fault of the personnel or as a result of the fault of the duty through criminal proceedings. In this respect, the periods of 1 and 5 years stipulated in Article 13 of Law No. 2577 must be calculated from the date of the administrative nature of the action. It is clear that the contrary interpretation would eliminate the right to file a lawsuit, which can only be used after the administrative nature of the action causing the damage is revealed, and would be incompatible with the freedom to seek rights.”

15th Chamber of the Council of State, E. 2016/4982 K. 2017/1471 T. 30.3.2017: “…The full judgement actions envisaged by the law express the compensation of the damage suffered due to the administrative action. Therefore, in order to file a full remedy action, the administrative nature of the action and the occurrence of the damage caused by the action are mandatory. Pursuant to the above-mentioned article of the law, the beginning of the application period to the administration is the date on which the persons who are damaged by administrative actions learn about the action. In cases where the damage has not yet occurred or, even if it has occurred, the cause of the damage cannot be learnt, taking only the date of the action and the date of the harmful result as the beginning of the application period will lead to a very short period of time to file a lawsuit or will eliminate the right to file a lawsuit and will not be compatible with the freedom to seek rights. For this reason, it is necessary to start on the date on which the administrative nature of the action causing the damage is learnt. The administrative nature of the action and the damage caused by it may sometimes be revealed at the time of the action, and sometimes much later, as a result of various investigations, examinations and even criminal proceedings. When determining the time limit for filing a lawsuit, it is necessary to avoid, on the one hand, exaggerated formalism that would prejudice the fairness of the lawsuit and, on the other hand, excessive laxity that would lead to the disappearance of the procedural requirements stipulated by law, and in the interpretation of the legislative rules regarding the time limit in the Administrative Procedure Law No. 2577, it is necessary to avoid interpretations that have serious consequences in terms of violation of the rights of individuals.”

The Council of State states that some decisions dismiss the case on procedural grounds on the grounds that the 1-year period has elapsed and that the strict application of this rule constitutes a violation of the right to seek justice and a violation of the Constitution by disproportionately limiting the right to sue.

15th Chamber of the Council of State, E. 2016/4241 K. 2016/3896 T. 31.5.2016: The freedom to seek rights includes the right of individuals who claim that their rights have been violated to apply to the competent authorities in order to stop the violation and eliminate its negative effects. For this reason, the right to seek remedy should not be limited to the right to apply to the courts. Considering the nature of the violation, an application may also be made to the administrative authority that may make a decision to eliminate the negative effects of the violation. As a matter of fact, Article 40 of the Constitution stipulates that “Everyone whose rights and freedoms recognised by the Constitution are violated has the right to request that the competent authority be provided with the opportunity to apply without delay. ” is one of the basic norms that support this situation. Emphasising that procedural rules should not render the right unusable, the European Court of Human Rights in its Mesutoğlu v. Turkey judgment with application number 36533/04 summarised that “… the right of access to a court is not absolute and may be subject to certain limitations; however, the restrictions imposed must not prevent the person from accessing the court to such an extent as to destroy the essence of the right; such limitations to the right of access to a court may only be compatible with Article 6/1 of the Convention if a legitimate aim is pursued and if there is a reasonable proportion between the aim pursued and the means used. Based on these principles, it is stated that, although the right to bring a lawsuit naturally has conditions determined by law, the courts, in applying the judicial procedures, should avoid, on the one hand, exaggerated formalism that would prejudice the fairness of the case and, on the other hand, excessive laxity that would lead to the disappearance of the procedural requirements stipulated by law…”

When we look at the precedent jurisprudence, the existence of a medical certificate in the form of a medical board report or a disability report is taken as a basis for learning the damage and the responsible party and for the commencement of the periods in the Law.

Council of State 10th D., E. 2012/2787 K. 2015/3709 T. 11.9.2015: “It is an established case law of the Council of State that the bodily damages caused by administrative actions should be deemed to have been learnt on the date the treatment process is completed and the final medical report is received, and that the period stipulated in the law should start to run on the date the final report is given to the person concerned.”

15th Chamber of the Council of State, E. 2014/9621 K. 2015/2146 T. 15.4.2015: “In the dispute, considering that the Diyarbakır Training and Research Hospital issued a medical board report dated 08.08.2012 stating that the plaintiff was 42% disabled after the accident in question, and that the real and definite damage that can be claimed to have arisen from the action of the administration only emerged with the Medical Board Report dated 8.8.2012, which determined the loss of body function according to the plaintiff’s disability, it should be accepted that the 1-year period started from this date in accordance with Article 13 of Law No. 2577. Accordingly, there is no statute of limitations in the lawsuit filed by the plaintiff on 20.09.2013 upon the rejection of his application to the administration on 20.06.2013 within 1 year from 08.08.2012, when he learnt that the action was attributable to the administration; While the Administrative Court should make a decision on the merits of the case, there is no conformity with the procedural provisions in the decision to reject the case due to the statute of limitations.”

Council of State 15th D., E. 2013/12681 K. 2014/280 T. 30.1.2014: “From the examination of the case file, it is understood that K2’s right arm became completely incapacitated as a result of the shoulder of Sudenaz being stuck in the mother’s uterus during the birth of the little Sudenaz during the birth at Karadeniz Technical University Faculty of Medicine on 07/04/2006 and that the case was filed on 20/05/2013 upon the tacit rejection of the application made to the defendant administration in due time upon the finalisation of the medical board report dated 06/06/2012 that she was 49% disabled. Accordingly, it is understood that the plaintiffs filed this lawsuit in due time upon the rejection of their application to the administration within the 1-year period according to Article 13 of the Law No. 2577 after they fully learned that the action and the action was attributable to the administration with the medical board report dated 06/06/2012. In this case, while the Administrative Court should make a decision by examining the merits of the dispute, there is no conformity with the procedural provisions in the decision given for the rejection of the case due to out of time.”

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