In damages caused by medical intervention, if a defect of the physician can be detected at the point of diagnosis or treatment of the disease, criminal and civil liability may arise due to the doctor’s error. Regarding medical malpractice and its legal consequences, whether the physician is responsible for the damage incurred is determined by the expert report to be obtained by the court.
At this point, the determination of questions such as what is malpractice, which issues can be considered as malpractice or when it is interpreted as a complication in terms of the event in dispute will be made by physicians specialised in the relevant medical intervention (through the expert report they will prepare upon the request of the court). If the damage caused as a result of the medical intervention can be qualified as a complication , in this case, since there is no doctor’s fault, a decision of non-prosecution in a possible criminal investigation or acquittal if a criminal case has been filed will be made. In the meantime, it should be noted that the patient must have been informed about possible complications before the intervention and his/her consent must have been obtained.
Liability in case of misdiagnosis
The doctor’s error may have occurred in the form of misdiagnosis of the disease. In this case, since the wrong treatment will be applied to the patient as a result of misdiagnosis, it will cause the patient to waste time and perhaps cause the disease to progress and cause the patient to waste money with an unnecessary treatment process.
In this case, it is possible to file a criminal complaint against the doctor on the grounds of doctor’s error due to misdiagnosis and to file a lawsuit for compensation. Both the criminal court and the civil court conducting the compensation proceedings will send the file to the forensic medicine institutionor to the expert committee consisting of physicians specialised in the field of the disease subject to the lawsuit in order to determine whether there is a physician error.
Liability in case of malpractice
The same applies to malpractice. In the event that the patient’s condition is aggravated or the patient is lost as a result of the physician’s error in the treatment or the defective action of the physician in the intervention for treatment, the expert report will determine whether there is a doctor’s error in the negative result.
The negative result that occurs as a result of the intervention may also be a complication. Since a complication is a natural result that cannot be prevented by the physician and can occur with the intervention in question, it is not considered a doctor’s error. The most important factor here is that the patient has been informed about possible complications before the procedure and his/her consent has been obtained. A second important point is that it has been determined that the physician has no fault in complication management.
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