Optional Rights in Claiming Compensation After Aesthetic Operation

The contractual relationship between the physician/hospital and the patient in terms of aesthetic surgeries for beautification purposes is characterised as a contract of work in the decisions of the Court of Cassation. In contracts of work, the main obligations of the parties are to produce the promised result for the contractor and to pay the agreed price for the owner of the work. In one of its decisions, the Court of Cassation expressed the obligations of the parties in aesthetic operations as follows

“The obligation of the doctor, who is accepted to be a contractor in aesthetic surgery for beautification in the contract of work, is to perform the surgery in accordance with his commitments, the requirements of medicine and the rules of good faith, and the responsibility of the plaintiff business owner is to pay the price.”

6th Civil Chamber of the Court of Cassation, E. 2022/1576 K. 2023/1677 T. 4.5.2023

In the event that the physician, who is accepted as a contractor, fails to produce the result promised before the aesthetic surgery, the “obligation to guarantee against defects”, that is, the responsibilities after unsuccessful aesthetic surgery, come to the fore. Because the physician’s inability to produce the result promised by the physician is described as “defective performance” in legal terms, which provides the patient, who is the business owner, with a number of optional rights.

In the Turkish Code of Obligations, the optional rights of the work owner in the work contract are explained in Article 475 as follows:

Optional rights of the owner of the work
ARTICLE 475- In cases where the contractor is responsible for defects in the work, the owner of the work,
may use one of the following optional rights:

1.) The work cannot be used by the owner or cannot be forced to accept in equity
if it is defective to the same extent or if it is contrary to the terms of the contract to the same extent
2.) Retaining the work and requesting a discount in proportion to the defect
3.) Request the free repair of the work at the contractor’s sole expense, unless this would involve an excessive expense.

The right of the employer to claim compensation according to general provisions is reserved.

Turkish Code of Obligations No. 6098, Article 475.

The Istanbul Regional Court of Appeals has explained the optional rights of the business owner after unsuccessful aesthetic operation in its decision, some of which we quote below:

“The work is the result of a labour requiring the art and skill of the contractor, and the contractor is under the obligation to create the work for the benefit of the owner and without causing any damage to him.

On the other hand, the obligations of the contractor are regulated in Article 471 of the TCO, and the contractor is obliged to perform the acts undertaken by the contractor with loyalty and diligence, observing the rightful interests of the owner. Again, due to the nature of the contract of work, the contractor must be deemed to guarantee the result. (Decree of the 15th Civil Chamber of the Court of Cassation numbered 2018/5523 E, 2019/801 K.)

The rights of the owner of the work arising from the defect are regulated in Article 475 of the TCO and these rights are;
1-) Rescission of the contract, 2-) Discount from the price in proportion to the defect 3-) Right to request free repair. It is also the right to demand compensation according to general provisions.

The first three of these, i.e. the rights of return, reduction of the price and free repair, are optional rights. The right to demand compensation, on the other hand, may be demanded together with all three optional rights, provided that the owner is damaged.

… According to the scope of the file, the contractual relationship between the parties is in the nature of a contract of work, and it is understood that the defendant performed the revision of the nose surgery and liplifting procedure performed by the plaintiff for aesthetic purposes by the non-suiting physician before, and that the intended aesthetic appearance was not obtained with the revision procedure.

As such, considering that the conditions for compensation for the plaintiff have occurred, the court should first request an explanation from the plaintiff in terms of the items and amount of material damages, and then a report should be obtained in terms of documented and undocumented damage items and a decision should be made in accordance with the result to be obtained, but it has been found against the procedure and the law to make a decision in writing with an erroneous evaluation and incomplete examination.
For the reasons explained; it is necessary to decide to accept the plaintiff’s appeal application in accordance with Article 353/1-a-6 of the CCP, to annul the decision, and to send the case file to the court for the case to be heard again.”

T.R. Istanbul Regional Court of Appeals 3rd Civil Chamber 2023/3798 Main, 2024/1719 Decision dated 11/06/2024.

In the decision of the Court of Cassation on the subject, the optional rights of the patient, who is the owner of the work after the aesthetic operation in the nature of a contract of work, regarding the compensation claim are mentioned:

“The local court, which complied with the reversal, decided to collect this amount from the defendant by stating that the material damage was 19.507,44 TL, including 8.500,00 TL for the surgery to be performed again, 1.961,44 TL as the wage that the plaintiff would lose in 15 days of rest and 9.046,00 TL paid by the plaintiff to the hospital and the defendant doctor in total. It was not correct to make a written judgement without considering that the return of the work price paid is a result of the return from the contract (retroactive termination), in order to decide to collect the defect repair fee, the contract must be in force between the parties, and it cannot be decided to collect the return of the work price and the defect repair fee together. In addition, in the decision of the 15th Civil Chamber of the Court of Cassation dated 03.07.2018 and numbered 2018/3043 Main, 2018/2820 Decision, it was stated that although the work is not defective to the extent that it cannot be forced to accept, a report should be obtained on what the interventions specified in the forensic medicine report are and what kind of surgeries and in what amount they can be eliminated, and the request items related to the plaintiff’s loss of income and non-pecuniary damages should be evaluated and a decision should be made according to the result, and there is no reason for reversal that the work price paid by the plaintiff regarding the material compensation claim should be returned.”

6th Civil Chamber of the Court of Cassation, E. 2021/4727 K. 2022/3546 T. 22.6.2022

As a result, when an aesthetic compensation lawsuit is filed due to the failure of the aesthetic operation, the plaintiff has the right to choose between refunding the price, reduction in the price or covering the cost of revision surgery.

However, according to the statement in the law, the plaintiff has the right to claim compensation according to the general provisions. The plaintiff may claim compensation for material damages and moral damages such as treatment expenses, medication and medical product expenses, caregiver expenses, loss of earnings, incapacity for work, losses arising from the loss of economic future, except for the expenses to be incurred for the occurrence of the promised result due to the failure of the plastic surgery. Of course, whether or not such damages exist or which of them exist should be evaluated on a case-by-case basis, and the damages suffered in the compensation lawsuit filed will have to be proved by the plaintiff.

Caution: The failure of the surgery performed by a plastic surgeon and causing damage to his patient can be considered as a breach of contract within the scope of the contract of work, as well as a tort . The plaintiff may rely on any of these two reasons in the compensation claims in the lawsuit. However, the legal reason relied on will change the provisions to be applied to the lawsuit filed, and in our article, the legal situation that applies in case of reliance on the legal reason of breach of contract within the scope of the contract of work is mentioned. Regarding the legal reason preference, which I observe that the plaintiffs generally do not pay much attention to, the court determines the applicable law in cases where the plaintiff does not clearly state which legal reason is relied upon by the plaintiff in the lawsuit petition, and in such cases, it is observed that the courts resolve the disputes according to the provisions of the contract of work; the approach of the Court of Cassation is in this direction.

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