The promised result was not fully and properly fulfilled, the aesthetic interventions did not result in the benefit of the plaintiff business owner as a result, the work created was defective

Court of Cassation Decision – 6th HD, E. 2022/2697 K. 2023/3137 T. 4.10.2023

OF THE JUDGEMENT UNDER REVIEW

DATE : 23.12.2016

JUDGMENT/DECISION : Rejected

COURT OF FIRST INSTANCE : Istanbul 5th Consumer Court

NUMBER : 2018/75 E., 2021/210 K.

At the end of the trial held due to the lawsuit between the parties for pecuniary and non-pecuniary damages, the Court of First Instance decided to dismiss the lawsuit.

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 of lawsuit; the plaintiff met with the defendant … in the defendant hospital due to the large breasts of the plaintiff, the defendant doctor said that the problem could be eliminated with breast lift and that the arm lift surgery could be performed together since there was sagging in the arms, the plaintiff was operated by the defendant doctor in the defendant hospital on 10.04.2014 for 7.000-TL for 2 operations.On 10.04.2014, the plaintiff was operated by the defendant doctor in the defendant hospital, he was sent home with antibiotics given each time for the postoperative inflammation and pain, the plaintiff was told that he was a victim of the doctor in different hospitals he went to, 9 months after the operation, he went back to the same hospital upon the continuation of his pain and problems and requested a fee to be operated elsewhere again, the hospital management stated that the defendant doctor … was dismissed because he received too many complaints, that the fault was on them and that they would perform the second surgery free of charge, and the plaintiff met with the other defendant doctor …. on 13.01.2015, after the surgery, the plaintiff’s problems continued and nothing changed, after the surgeries performed by the defendant doctors, the plaintiff could not use his arm, a tear and related cysts formed on his shoulder, masses formed under his arm and in his chest, which he was constantly under control, one of his chest was large, The plaintiff stated that one of them remained small, there was a pot hole in his arm, although it was called aesthetic surgery, stitch marks remained, the plaintiff could not go to work after each surgery and had to get a report, the plaintiff’s employment was terminated, the plaintiff sold his car for the surgery, his psychology deteriorated, and for now, without prejudice to his rights regarding the surplus, 10.000-TL pecuniary compensation and 200.000-TL non-pecuniary compensation together with the legal interest to be accrued from the date of the incident.

II. ANSWER

1. The defendant … attorney summarised in his reply petition; the plaintiff had previously undergone a stomach reduction operation, breast lift and arm lift operations were recommended to the plaintiff without any guidance in line with his complaints, all information applicable to the planned operations were explained to the plaintiff verbally, in writing and visually during the interview, there was no definite statement that the plaintiff would be very satisfied and would not have pain during the interview, 7.000-TL was deposited to the hospital accounting, the plaintiff patient stood up and fell in the first hour after the operation without the knowledge of the nurses, although the plaintiff patient was repeatedly suggested to the plaintiff patient in the first hour after the operation, the mobilisation of the plaintiff patient while the corset and bras worn to protect the breast and arm surgery were not attached to the plaintiff patient before standing up put the results of the operation at risk, the plaintiff was caught smoking cigarettes by going down 6 floors on the same day, the plaintiff acted carelessly during the treatment process, the defendant doctor left the defendant hospital on his own request in September 2014, even if the plaintiff had complaints, provided that it does not mean acceptance, the time of the complaints coincided with the period when the defendant doctor was not working in the hospital, and there was no fault attributable to the defendant, and requested the dismissal of the lawsuit.

2. The defendant … In his reply petition, the attorney summarised; In the first months of 2016, he was asked for his opinion about a young female patient with insufficient financial means who had previously undergone breast surgery and had an infection, that he was not an employee of the hospital and that he went to the defendant hospital for support in some cases, that he told the patient that he could see him in the next period if they invited him, that when he came later, a detailed anamnesis was taken for diagnosis, physical examination was performed and necessary laboratory tests were applied, that no fee was charged for this procedure and surgery, that it was understood from the plaintiff’s lawsuit petition that the plaintiff did not heed the warnings and recommendations of the general surgery specialist, that although the defendant doctor showed all possible care, the patient’s constitutional structure could be intervened in a very limited way, that the plaintiff’s claims for material and moral damages were not clear and that there was no evidence, and requested the dismissal of the lawsuit.

3.Defendant Bileşim Turizm İnşaat San ve Tic A.Ş. In his reply petition, the attorney summarised; the defendant hospital does not have any fault, there is no professional error in the medical procedure applied to the plaintiff, provided that it does not mean accepting the claim of fault, damage and loss, even if it is concluded that there is a professional error in the medical procedure applied for a moment, it is not possible to attribute fault to the defendant hospital and / or to be held responsible within the scope of the responsibility of the employee, that the physicians who are employed and who perform medical intervention on the plaintiff are treated with care in their assignment and recruitment, and that specialist physicians are employed in their field, The defendant hospital and the defendant doctors cannot be held responsible for the expectations of the plaintiff since they have shown the necessary care and attention, and the plaintiff’s claims for material and moral damages are groundless, and requested a decision to dismiss the lawsuit with the notification of the lawsuit to Anadolu Anonim Türk Insurance Company, stating that the plaintiff was informed in writing and verbally within the scope of both operations, both before and during the processes, and that his request and consent were obtained.

4. In the petition of the attorney for the notified party …, in summary; it was requested that the lawsuit be dismissed and that no judgement be rendered against them since they bear the title of the notified party pursuant to Articles 64, 68, 69 of the CCP.

III. FIRST INSTANCE COURT JUDGEMENT

With the decision of the Court of First Instance dated and numbered above, the plaintiff had a stomach reduction surgery in the past, breast lift and arm lift surgery was performed by Dr. … on 10.04.2014 and augmentation mammoplasty was performed by Dr. … on 13.01.2015 at the defendant hospital, the scars of the previous surgery were revised, the Forensic Medicine 7. In the report prepared after the examination of the plaintiff by the Specialised Board, it was stated that the operations and methods and techniques performed by the defendant doctors were correct, it was not possible to completely eliminate the scars, the findings and scars detected were within acceptable limits, the sagging could not be completely eliminated, it was in accordance with the generally accepted principles and rules of medical science, the physician fulfilled his duty of care, and in the report dated 08.04. 2021 dated report, it was reported that the complaints of the plaintiff after the surgeries performed by the named defendant doctors were due to factors such as smoking, rather than the lack of care of the doctors, the stomach reduction surgery performed by the plaintiff, the prosthesis sagging in the breast tissue can be seen after conditions such as pregnancy, excess weight gain, the plaintiff’s pregnancy makes it difficult to evaluate, and the plaintiff has been informed about the procedures to be performed and the results, as it is fixed with the consent forms available in the file, The findings and explanations in the forensic medicine report, the fact that the expert committee report was prepared after the examination of the plaintiff and the reports were sufficient to make a judgement in terms of the evaluations made, it was decided to dismiss the lawsuit on the grounds that the defendant doctors and the defendant hospital could not be considered defective due to the procedures performed and that they had no responsibility with the reports issued by evaluating the file content without obtaining an additional report.

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 summarised in the petition of appeal; that his client complied with all the doctor’s recommendations before and after the surgery, that they objected to the reports in this direction, that his client had problems from the first surgery and that the defendant hospital accepted the physician’s mistake and performed the second surgery, that in the report received from the university; the report received from the university stated that there was a problem in the evaluation due to the fact that her client had a pregnancy, and therefore the opinion that a complete determination could not be made, and although a new report was requested, the court did not require an additional report and decided in line with the statements of the defendants, and claimed that there was an incomplete examination in the case and asked for the decision to be removed.

C. Justification and Conclusion

With the decision of the Regional Court of Appeal dated and numbered above, it has been decided to reject the plaintiff’s appeal application on the merits, since the decision of the court is in accordance with the procedure and the law.

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

In his appeal petition, the plaintiff’s attorney summarised that; his client complied with all the doctor’s recommendations before and after the surgery, they objected to the reports in this direction, his client had problems from the first surgery and the defendant hospital accepted the physician’s mistake and performed the second surgery, in the report received from the university; the report received from the university stated that there was a problem in the evaluation due to the fact that her client had a pregnancy, and therefore the opinion that a complete determination could not be made, and although a new report was requested, the court did not require an additional report and made a decision in line with the statements of the defendants, claiming that there was an incomplete examination in the case and asked for the decision to be reversed.

C. Justification

1. Dispute and Legal Characterisation

The dispute is related to the claim for material and moral compensation arising from aesthetic intervention in the nature of a work contract.

2. Relevant Law

First paragraph of Article 369 and Articles 370 and 371 of the Code of Civil Procedure No. 6100, Articles 49, 50/1, 56/1, 470-486 of the Turkish Code of Obligations No. 6098, Article 4 of the European Convention on Biomedicine.

3. Evaluation

Since the plaintiff applied to the defendant physicians for breast reduction, lift and arm lift, that is, for aesthetic purposes, it is clear that there is a contract of work regulated in Articles 470 and following of the TCO No. 6098 in force as of the date of the establishment of the contract between the parties, and 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 contract of work between the parties.

Since it is agreed to perform aesthetic interventions to the plaintiff with the contract, it is understood that the contract between the plaintiff and the defendant physicians is different in nature from the power of attorney contract regarding the treatment performed between the physician and the patient due to medical necessity, and the provisions of the work contract should be applied. In 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, that is, the commitment of the contractor to create a result in line with the will of the parties, and the guarantee of the result. Here, there is not only a commitment to perform a work without committing to the result, as in an agency contract, but also an obligation to create and deliver a work-result. Pursuant to Article 471 of the Turkish Code of Obligations, the contractor who undertakes the result must faithfully fulfil his duty of care by observing the benefit of the owner of the work. In determining the responsibility of the contractor arising from the duty of care, the behaviour of the contractor in accordance with the professional and technical rules that a prudent contractor undertaking similar works shall be taken as basis. The duty of loyalty also means that the contractor shall do what is in the best interest of the contractor and shall not do what is to the detriment of the contractor. Again, according to Article 472 of the Turkish Code of Obligations, it is obligatory for the physician to explain all kinds of complications that may occur after the surgery to the business owner with all the consequences, and to enlighten and inform the patient for all these possible consequences.

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. Since it is aimed to produce a certain result here, if 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, it is required that the work conforms to the rules of science and art and meets 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. In case of complications, the obligation of disclosure and the correct management of complications are also the responsibility of the contractor.

The European Convention on Biomedicine, which was signed on 04.04.1997 and published in the Official Gazette No. 25311 on 09.12.2003 and entered into force 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”, and since the plaintiff underwent medical intervention in a hospital environment, 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. In addition, the obligation to obtain informed consent is clearly regulated in Article 5.

Article 56 of the TCO, which was in force on the date of the operation and the lawsuit, stipulates that: “In the event that the physical integrity of a person is damaged, the judge may decide to pay an appropriate amount of money to the injured person as non-pecuniary damages, taking into account the characteristics of the incident”.

The right to moral compensation recognised to the injured person is a type of compensation foreseen in the event that the social, physical and emotional personality values of the person are attacked. It is a fact that the aim is to restore the moral balance of the person, which has deteriorated due to the unlawful act, to satisfy the person emotionally, and to prevent the damaging person from committing such an act again.

Moral compensation aims to relieve and alleviate the physical and moral suffering of the person. This compensation is the compensation for the pain and suffering experienced. Since this type of compensation aims to eliminate the pain and suffering of the person as a result of the wrongful act, the injured person may request by determining the amount he/she envisages.

Unlike in material damages, it is impossible to make a precise calculation in non-pecuniary damages. For this reason, the amount is determined by the judge in accordance with Article 4 of the TMK, taking into account the characteristics of the concrete case and the social and economic situation of the parties. The judge has a wide discretion in determining the amount of non-pecuniary damages. This amount to be determined has a unique character which has a function similar to compensation in order to create moral peace in the victim of the damage. It is not a punishment, nor does it aim to compensate a damage related to property law. Therefore, the limit of this compensation should be determined according to its purpose. The amount to be assessed should be as much as necessary to achieve the effect of the sense of fulfilment (satisfaction) desired to be obtained in the existing situation. In the justification of the Supreme Court of Appeal Unification of Jurisprudence Decision dated 22/06/1966 and numbered 7/7, the special circumstances and conditions that will affect the amount of non-pecuniary damages to be assessed are also clearly shown. Since these may vary according to each case, the judge, while using the right of discretion in this regard, should show the reasons affecting it in an appropriate (accurate) manner according to objective (objective) measures at the place of decision. While making the determination, the judge should take into consideration the characteristics of the concrete case, the economic and social status of the injured party, the purchasing power of the money, the pain and suffering experienced and to be experienced in the future.

When the concrete case is evaluated in the light of the above-mentioned principles and explanations; in the report of the 7th Specialised Board of the Forensic Medicine Board dated 25.09.2019, the court of first instance concluded that the practices of Plastic Surgery Specialist Dr. … who performed the first surgery and Plastic Surgery Specialist Dr. … who performed the second surgery were in accordance with the generally accepted principles and rules of medical science.’s practices were in accordance with the generally accepted principles and rules of medical science, the opinion that no organisational error of the administration was detected in the execution of the health service was reported, upon objection to this report, the report dated 12.04.2021, which was obtained from a 3-person expert committee consisting of Aesthetic, Plastic and Reconstructive Surgery specialists, was dated 12.04.2021.In the report dated 2021, it was stated that the issues subject to the plaintiff’s complaint were not due to the lack of surgical care of the physicians, but to factors that adversely affect wound healing such as stomach reduction surgery, smoking of the patient, and the opinion that this deformity occurred / aggravated with pregnancy and time in the patient with impaired skin quality, and the lawsuit was rejected on the grounds that there was no fault of the defendant physicians based on the reports received; The contract between the parties is in the nature of a contract of work, considering the explanations made above, the plaintiff’s request for breast reduction, lifting and arm lift is in the nature of a guarantee that the contractor will provide a more beautiful appearance and a healthy conclusion of the post-intervention process, but since the promised result was not achieved in the first surgery and subsequent revision surgery, especially according to the scope of the file, breast reduction on the same day within the scope of breast reduction, lifting and arm lift operation performed on 10/04/2014, Considering that the plaintiff’s informed consent was obtained for the lift surgery, but the plaintiff’s informed consent was not obtained for the arm lift surgery performed in the same operation, and that the plaintiff’s informed consent was not obtained for breast augmentation surgery in the revision operation performed on 13/01/2015, since it is understood that the aesthetic intervention performed on the plaintiff did not result in the benefit of the plaintiff business owner as a result, it was erroneous to rely on expert reports that did not consider that the medical intervention subject to the lawsuit was in the nature of a work contract and did not include an evaluation in this regard.

For the reasons explained, since it is understood that the defendant physicians could not fully and duly fulfil the promised result both in the first surgery and in the revision surgery, that the aesthetic interventions performed on the plaintiff did not result in the benefit of the plaintiff business owner as a result of the aesthetic interventions performed on the plaintiff, and that the work created was defective, the court should decide to jointly collect the appropriate amount of non-pecuniary damages to be appreciated according to the characteristics of the concrete event and the social and economic status of the parties, while it should be decided to be rejected in writing; In terms of the financial compensation request, it is necessary to explain to the plaintiff what the material damage items that the plaintiff claims to have suffered and requested as 10.000 TL, which the plaintiff claims to have suffered, should be explained to the plaintiff in accordance with Article 31 of the CCP, and a decision should be made in accordance with the result by evaluating the request items, but it is erroneous to decide to reject it in writing, and it is deemed appropriate to revoke the decision for the reasons explained.

VI. DECISION

For the reasons explained;

1. The decision of the Regional Court of Appeal 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 04/10/2023.

If you are experiencing victimisation after an aesthetic operation, you can read our article, which is a legal guide for aesthetic victims.

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