The physician is committed to the result while undertaking rhinoplasty. The presence or absence of complications alone does not affect the result.

Court of Cassation Decision – 6th HD, E. 2022/2949 K. 2023/3283 T. 12.10.2023

At the end of the trial held due to the compensation case between the parties, the Court of First Instance decided to dismiss the case.

Upon the appeal of the decision by the plaintiff’s attorney, the Regional Court of Appeals decided to reject the application on the merits.

The decision of the Regional Court of Appeal was appealed by the plaintiff’s attorney; as a result of the preliminary examination made in terms of finality, duration, appeal requirement and other procedural deficiencies, after the decision was made to accept the petition for appeal and the report prepared by the Examining Judge was listened, the documents in the file were examined and considered accordingly:

I. LAWSUIT

The plaintiff’s attorney summarised in the petition for lawsuit; that his client had problems in breathing, for this reason, he applied to the defendant hospital for the elimination of his problems, he was examined by the other defendant, who is the Plastic Surgery department physician at the defendant hospital, and it was decided to perform an operation to facilitate his breathing, the plaintiff was first operated in the defendant hospital on 04/07/2014, he followed all the recommendations after the operation, the plaintiff’s breathing problem did not go away after the operation and increased in severity, The defendant doctor called the plaintiff for re-examination and decided to perform a new operation, whereupon his client underwent surgery for the second time, the doctor did not provide the plaintiff with sufficient information before and after the operation, made the plaintiff sign a number of papers before the operation, the breathing problem did not improve after the second operation, moreover, there was a collapse on the left side of the nose, for these reasons, for now, without prejudice to their rights regarding the excess, 500.00 TL financial compensation and 30.000,00 TL non-pecuniary damages together with the legal interest to be accrued from 04/07/2014, the date of the first surgery, jointly and severally from the defendants.

II. ANSWER

Defendant … Medicine Inc. In his reply petition, the attorney summarised; that the lawsuit should be dismissed due to the lack of hostility in terms of the client company, in addition, the court is not competent and competent, there are statute of limitations objections, the plaintiff applied to the hospital with the request for aesthetic correction of the appearance of his nose rather than the problem of not breathing before the operation dated 04/07/20116, the plaintiff was given detailed information about the operation and its risks before the operation, the non-aesthetic nose appearance of the plaintiff after the operation was completely eliminated in the examination dated 26/11/2015, The operation performed on 02/12/2015 was performed when the plaintiff applied to the client hospital due to breathing problems, this operation was simple and there was not the slightest aesthetic intervention, there was no nasal collapse as a result of this operation, the plaintiff was not malpracticed, the physician showed the necessary interest, care and attention, the correct diagnosis was made and the correct directions were made in line with the appropriate treatment methods, and requested a decision to dismiss the lawsuit.

Defendant … In their reply petition, the attorney for Nermin Yüksek Barutçu stated that they objected to the statute of limitations, that the plaintiff was informed about the operation process, duration, duration of hospital stay, etc. The plaintiff was informed about the issues, the plaintiff applied to the hospital on 02/07/2014 and said that he decided to have surgery, the necessary examinations were performed and the surgery was performed, no unexpected problems were encountered during and after the surgery, the planned visual changes in the plaintiff’s nose were made as planned, in the following process, the plaintiff informed his client that there was a depression in his nose, and his client advised him to massage his nose, In the next interviews, the plaintiff reported that the collapse had passed, the plaintiff reported that he felt congestion in his nose 1 year and 2 months after the surgery, and that he was extremely satisfied with the shape of his nose, he applied to the polyclinic on 24/11/2015 and asked to be operated again due to his inability to breathe, whereupon the plaintiff underwent the second surgery, the nasal flesh was reduced bilaterally, and no unexpected problems were encountered during and after the surgery, and requested the dismissal of the lawsuit.

III. FIRST INSTANCE COURT JUDGEMENT

In the forensic medicine report received with the decision of the Court of First Instance dated and numbered above, the indication and surgical technique of the septorhinoplasty surgery performed on the plaintiff on 04/07/2014 with the diagnosis of septum deviation was appropriate, and the submucosal bilateral inferior turbinate resection performed upon the detection of turbinate hypertrophy in the second application of the person with the complaint of not breathing, It was decided to dismiss the lawsuit on the grounds that the defendant Dr. Ayşe Nermin Yüksel Barutçu’s practices were in accordance with the generally accepted principles and rules of medical science and that no organisational error of the administration was detected in the execution of the health service. Ayşe Nermin Yüksel Barutçu’s practices were in accordance with the generally accepted principles and rules of medical science, and that no organisational error of the administration was detected in the execution of the health service.

IV. EXCUSSION

A. Appellants

The plaintiff’s counsel filed an appeal against the above-mentioned decision of the Court of First Instance within due time.

B. Grounds of Appeal

The plaintiff’s attorney stated that his client could not find healing despite the surgeries performed by the defendant hospital and the defendant doctor, that he had to undergo continuous operations, that aesthetic deterioration occurred in his nose due to collapse, that the necessary clarification and information were not provided in both surgeries, that the expert report taken as the basis of the judgement was inadequate and far from scientific evaluation, and applied for appeal with the request to eliminate the decision of the Court of First Instance and to decide to accept the lawsuit.

C. Justification and Conclusion

The decision of the Regional Court of Appeal with the date and number specified above and the expert report taken as the basis of the judgement are suitable for audit, the informed consent documents in the file are signed by the plaintiff personally, as it is understood from these documents, the plaintiff has been clearly informed that the surgery may not provide 100% recovery, that re-intervention may be required and that there may be aesthetic deterioration after surgery, It was decided to reject the appeal application of the plaintiff’s attorney on the grounds that there was no error in the decision of the court, since it was understood that there may not be a complete improvement in the findings causing clinical complaints despite all kinds of care after such surgeries and that the practices of the defendants were in accordance with the principles and rules of medical science.

V. APPEAL

A. Appellants

The plaintiff’s counsel appealed against the above-mentioned decision of the Regional Court of Appeal within the time limit.

B. Grounds of Appeal

The plaintiff’s attorney appealed for the reversal of the decision of the Regional Court of Appeal and the decision to accept the case for the reasons set forth in the petition of appeal and the reasons to be taken into consideration ex officio.

C. Justification

1. Dispute and Legal Characterisation

The dispute is related to the claim for material and moral compensation arising from aesthetic intervention.

2. Relevant Law

First paragraph of Article 369 and Articles 370 and 371 of the Code of Civil Procedure No. 6100, Articles 470-486 of the TCO No. 6098

3. Evaluation

1. It is not disputed that there is a contract of work relationship between the parties regulated in Articles 470 and following of the TCO No. 6098. With the contract, it has been agreed to perform aesthetic interventions on the plaintiff. It is understood that the contract between the plaintiff and the defendant is different in nature from the contract between the physician and the patient regarding the treatment and the provisions of the contract of work should be applied. Pursuant to Article 470 of the TCO regulating the contract of work, the contractor’s obligation is to create a work, and the owner’s obligation is to pay a price in return.

One of the important issues that distinguishes the work contracts from other contracts of performance of work is the responsibility for the result, i.e. the commitment of the contractor to produce a result in line with the will of the parties. Here, there is not only an undertaking to perform a work without undertaking the result as in an agency contract, but also an obligation to create and deliver a work-result. The party under this obligation, namely the contractor, is obliged to fulfil the work with loyalty and diligence in accordance with Article 471/1 of the TCO and the nature of the work. The obligation of loyalty means that the contractor must do things that will benefit the owner and refrain from any action that will harm him.

The work is the result that requires the art and skill of the contractor and is realised through the expenditure of labour. The obligation of the contractor to produce the work for the benefit of the owner and without causing any damage to him covers both the loyalty and the duty of care of the defendant contractor. Here, it is aimed to produce a certain result. In the event that the work does not meet the expectations of the owner, the balance of benefits in the contract is disturbed against the owner. In this respect, the work must be in accordance with the rules of science and art and meet the expectations of the owner. Otherwise, the work is deemed to be defective. The contractor who creates the defective work is liable for the defects and deficiencies due to the duty of loyalty and care. Regardless of the method used by the contractor, the work must be free of defects, in other words, due to the nature of the contract of work, the contractor guarantees the result.

Since the plaintiff applied to the defendant for aesthetic purposes, it is clear that the issues of providing a beautiful appearance in accordance with the desired and agreed purpose by performing aesthetic surgery and the healthy conclusion of the process are the subject of the work contract between the parties. Here, the contractor is under the obligation to create the work for the benefit of the owner and without causing any damage to him. In case of complications, the obligation to inform and the correct management of complications are also under the responsibility of the contractor.

In addition, the EUROPEAN BIOTIP CONTRACT, which was signed on 04.04.1997 and entered into force after being published in the Official Gazette No. 25311 on 09.12.2003 and became a part of our domestic law, was ratified on 16.03.2004, and in Article 4 of the convention titled “Compliance with Professional Rules”, “any intervention in the field of health, including research, must be carried out in accordance with the relevant professional obligations and standards.” In the face of the regulation, since the plaintiff underwent medical intervention, it is obligatory to resolve the dispute based on the provisions of this convention. It is undisputed that the standard referred to in Article 4 of the contract is the medical standard, and the violation of medical standards may occur in the form of deficiency or inaccuracy in the diagnosis or treatment phase or in the process after the intervention. “Medical Standard” refers to the level reached by the physician’s experience and natural sciences at that moment, which is necessary for the physician to achieve the purpose of the treatment and has been tried and proven, and are the tried and known basic professional rules. It is obligatory to accept that the contract will also be applied to “aesthetic interventions” in the nature of work.

When the concrete case is evaluated in the light of these explanations; although the Court has concluded that there is no physician error as a result of the report received from the Forensic Medicine Institution, there is a result commitment in the contract of work. If the result is not realised, it must be accepted that the contractor has not performed the performance. In the case subject to the case, rhinoplasty surgery has been performed and it is necessary to ensure that the nose regains the desired shape. This issue, i.e. whether the desired result has been achieved or not, should be evaluated by an expert examination. In this regard, the presence or absence of complications alone does not affect the result. When evaluating whether the contractor has fulfilled its performance, it is sought whether the promised result has been realised, rather than the doctor’s obligation, as in a medical intervention, and the fault of the contractor in not realising this result is taken into consideration. When the contractor accepts the work, as in the case subject to the lawsuit, he undertakes the performance of rhinoplasty and undertakes the result. If the realisation of this result is not possible according to science and science and legal rules, according to Article 476 of the TCO, the contractor has the obligation to warn the owner while accepting the work. Since it accepts this work, it undertakes the result, and the result must be realised for the performance of the performance to be accepted. Otherwise, since it cannot be accepted that the performance has been fulfilled, the wage cannot be entitled and the damage arising in accordance with the relevant provisions of the TCO must be compensated.

In this case, the work to be done by the court; the file will be submitted to the expert committee to be formed from the faculty members of plastic and reconstructive surgery and otorhinolaryngology rhinoplasty experts of the universities, and the contract between the parties is a work contract and the contractor has a result commitment, and again, in the work contracts, the contractor does not have to be defective in order for the contractor to be liable for defects according to Article 475 of the TCO. Considering that the contractor does not have to be defective in order to be liable for defect according to Article 475 of the TCO; whether the aesthetic surgery was performed in accordance with the requirements of medicine and the provisions of the contract between the parties, whether the procedure achieved its purpose, whether the work was performed defectively, whether a temporary or permanent discomfort occurred in the plaintiff’s nose due to the surgery, a reasoned and auditable report was obtained, and the plaintiff’s material and moral compensation claims were evaluated and a judgement was established.

It was not correct to dismiss the case by relying on the insufficient expert report as a result of incomplete examination without considering the stated issues, and it was deemed appropriate to revise the decision.

VI. DECISION

For the reasons explained;

1. The decision of the Regional Court of First Instance regarding the rejection of the appeal against the decision of the Court of First Instance on the merits is hereby AFFIRMED,

2. The decision of the Court of First Instance shall be reversed,

The advance appeal decision fee shall be returned to the relevant party upon request,

The file shall be sent to the Court of First Instance that rendered the decision and a copy of the reversal decision shall be sent to the Regional Court of Appeal that rendered the decision,

It was unanimously decided on 12.10.2023.

(For another case law in a similar direction, see: 6th LAW CHAMBER OF THE YARGITAY, Judgement No: 2022/3416, Decision Number: 2023/4080, Decision Date: 05.12.2023 Source: Legalbank)

For more information, you can read our article titled Aesthetic Surgery Cases.

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