The Reversal Decision on the Physician’s Fault Will Constitute a Procedural Vested Right in Favour of the Patient

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.

The decision of the Court of First Instance 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 stated in the statement of claim; that his client decided to undergo breast surgery in August 2007 due to fibroadenoma in his chest since the age of 16, that the defendant doctor operated on him, that after the plaintiff underwent breast surgery and the prostheses were inserted into his chest, the process of coming out of anaesthesia was very painful, that he was discharged after staying in the hospital for one day after the surgery, that abnormal bruising and swelling appeared on his body for 3-4 days after he was discharged and went home, This pain and suffering continued for about 1 month after the operation, he went to the examination at least 2 times a week during this period, but his pain did not ease, when he went to the controls, the defendant stated that such swelling and bruising were normal, the bruises on his body extended from his chest to his belly and back, he had a lot of difficulty when he first started working, deformities occurred and in 2009 his chest took on a very ugly appearance, As a result of the ultrasound taken in another hospital, it was stated that something was leaking in the chest, that the body took action to protect itself and that it should be operated immediately, that it had to be operated three more times to correct this situation, that the prosthesis installed with the first operation was incorrect and that the material that should be used was installed in the wrong and larger size, which was not suitable for the body structure, and that deformities occurred in the chest, After the surgery performed by the suspect, he stated that it is normal for the blood to flow into his body and therefore it is normal to have swelling and bruises on his body due to the fact that blood tubes called ‘drains’ are not installed under the arm after the surgery, that as a result of the wrong and incorrect surgery and treatment methods that the defendant applied to his client despite being a professor in his field, his client had to undergo surgery three more times, that he has been in pain and sorrow due to deformities in his chest for about five years in addition to material damage, reserving his rights to sue and demand for more, 1.000,00 TL pecuniary, 50.000,00 TL non-pecuniary, a total of 51.000,00 TL, together with the legal interest to be accrued as of 21/03/2011, the date of the notice, to be taken from the defendant and paid to his client, and the judicial expenses and attorney’s fees to be charged to the other party.

II. ANSWER

In his reply petition, the defendant’s attorney stated The plaintiff came to his client’s office in August 2007 and as a result of the examination, it was decided to remove the fibroadenoma in his breast by operation and to place a prosthesis in his breast, the prosthesis placed in the breast was not large and misused, it was not placed under the skin, mentor brand prostheses are the best prosthesis in the world, there was no bruising, swelling or deformity in the breasts in the photographs taken after the operation, the plaintiff last came for control on 26/09/2007, 1.5 years after the last control, when he came with a cyst complaint on 03.03.03.2009 with the complaint of cysts, cysts were detected in the right and left breast, ultrasonography was requested from her, but the patient did not come again, the prostheses were placed under the muscle, the cysts were in the breast tissue and not related to the prostheses, the plaintiff had two visits to the doctor … in 2010 after 08/08/2007, when her client performed the surgery. … twice and for the third time to the same doctor in 2010 after 08/08/2007, these surgeries show that there is no inconvenience in terms of prosthesis placement and prosthesis placement process, and also the doctor … … it is not possible for an impartial expert to evaluate the surgeries performed by my client on the plaintiff after the 3 surgeries performed by Dr … … because the evaluations to be made after this situation are not the results of the surgeries performed by his client, but the results of the surgeries performed by Dr … … … … will show the results of a total of 3 surgeries performed by Dr … … in 2010 and 2011, and that it is not possible to prove the issues stated in the lawsuit petition since there is no doctor’s report received before, and requested a decision to dismiss the lawsuit of the plaintiff who unjustly filed a lawsuit in violation of the procedure and law, and to impose the trial expenses and attorney’s fee on the other party.

III. FIRST INSTANCE COURT JUDGEMENT

With the decision of the Court of First Instance dated 28.06.With the decision dated 2016 and numbered 2011/486 Main, 2016/244 Decision; According to all the evidence collected and the forensic medicine report and expert committee report confirming each other, the plaintiff agreed with the defendant about the aesthetic operation and in accordance with the agreement, the defendant physician placed prostheses on the plaintiff’s breasts, more than 1 year after this surgery on 08/08/2007, the plaintiff was operated 3 times on the same subject to another doctor, Although the plaintiff claims that the negativity that occurred as a result of these surgeries is due to the failure of the first surgery, he did not have the determinations showing the negative situation before the second surgery, he did not receive any report regarding this, the method applied and the result obtained as a result of the examination made by examining the documents and photographs of the first surgery were not faulty, bruising and pain are complications that may occur as a result of each surgery, these results do not show the defendant’s carelessness, it cannot be accepted that each post-operative state of the subsequent surgeries is faulty due to the first surgery, and even according to the last expert committee report, after comparing the photographs taken after the first surgery performed by the defendant with the photographs taken after the last surgeries, it was understood that the photographs in the first surgery were determined to be more symmetrical, and it was understood that there was no defect that could be attributed to the defendant, and that he did not act carelessly while creating the work, it was decided to dismiss the unproven lawsuit.

IV. REVERSAL AND THE JUDICIAL PROCESS AFTER REVERSAL

A. Reversal Decision

1. The plaintiff’s counsel filed a timely appeal against the decision of the Court of First Instance dated 28.06.2016 and numbered 2011/486 Main, 2016/244 Decision.

2. In the decision of the 15th Civil Chamber of the Court of Cassation dated 26.11.2018 and numbered 2018/4621 Esas, 2018/4686 Decision; as the aesthetic intervention performed on the plaintiff did not result in the benefit of the owner, 1. Since it is understood with the scope of the file that the obligation to enlightenment before the operation was not fulfilled sufficiently and the records were not kept completely, it cannot be said that the contractor fully fulfilled its obligation in accordance with the nature of the contract of work and was found defective, the enlightenment about the complication was insufficient as well as the complication management was not sufficient, it was erroneous to rely on expert reports that did not contain sufficient justification, the court, Considering that the defendant physician is defective, it was decided to overturn the decision by evaluating the plaintiff’s request items, stating 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 plaintiff’s request items related to material and moral damages should be evaluated and a decision should be made in accordance with the result to be obtained.

B. Decision rendered by the Court of First Instance in Compliance with the Reversal

The Court of First Instance, in its decision dated and numbered above; Forensic Medicine Institution 7. In summary, in the report dated 23/06/2021, the person’s examination in our institution on 18/03/2015 showed hyperpigmented and hypopigmented scars in the same areas, and as asked, there is no need for any intervention or surgery at this stage within the scope of how the damage can be eliminated by intervening after the first procedure, Within the scope of the management of capsular contracture complication, it was reported that a solution was made with the operation performed on 04/09/2009, but due to the restoration of the breast volume of the person, this problem was solved by placing the prosthesis again with the operation performed on 21/02/2011 and it was understood that the person achieved the desired purpose, and when all the information was evaluated together, it was unanimously concluded that no medical error could be attributed to the defendant physician’s practices, It was decided to dismiss the lawsuit in terms of the plaintiff’s claims for pecuniary and non-pecuniary damages, since it was understood that a report was received from experts in the field, the plaintiff was informed about the negative situations that may arise due to the operation, the defendant did not have any defect or negligence regarding the surgery performed by the defendant and there was no special regulation that could be evaluated within the scope of strict liability in this case.

V. APPEAL

A. Appellants

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

B. Grounds of Appeal

1. In his Appeal Petition, the Plaintiff’s Counsel stated;

1. The report of the Forensic Medicine Institution dated 23.06.2021 dated 23.06.2021 was not notified to them, the reversal was complied with, but the decision was not made in accordance with the reversal, it was not appropriate for the court to obtain a fault report, it was determined that the defendant was at fault by complying with the reversal, the fault situation is no longer a situation to be investigated again, what kind of interventions and surgeries were performed on the plaintiff and what the recovery or effects may be after these surgeries, the determination of whether the surgeries will leave physical and psychological effects on the person and accordingly, an appropriate amount of material and moral compensation should be awarded in favour of the plaintiff, the obligation of disclosure was not fully fulfilled, the promised work could not be created, the complication management was not sufficient, the defendant’s performance was defective, unbearable pain and swelling appeared in the plaintiff’s body after the surgery, and the court should make an investigation in accordance with the reversal and decide according to the result, they requested the judgment to be reversed.

C. Justification

1. Dispute and Legal Characterisation

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

2. Relevant Law

Articles 369, 370 and 371 of the Code of Civil Procedure No. 6100, Articles 225-239 of the same Code, Articles 470-486 of the TCO No. 6098.

3. Evaluation

1. Pursuant to the principle of procedural vested right, it is obligatory to conduct research and examination in favour of the party in whose favour the court decision is reversed. As a matter of fact, in the Court of Cassation Unification of Jurisprudence Decision dated 09.05.In the Decision of the Court of Cassation Unification of Jurisprudence dated 1960, numbered 1960/21 Main, 1960/9 Decision; By complying with the reversal decision of the Court of Cassation, a procedural vested right will arise for the benefit of the party in whose favour the reversal was made, and an obligation will arise for the local court to take action in the same direction, Although there is no explicit legal provision on procedural vested right, it has been stated that procedural vested right is one of the main principles on which procedural law is based and it is also related to public order in terms of the purpose of the reversal decision to be made as a result of the appeal, which consists of ensuring that the decision is made in accordance with the right and procedure, and the fact that the judicial procedure has been accepted for the purpose of reaching the right and finding the right, as well as being accepted for the purpose of stability in the legal field. Although the CCP No. 6100 does not contain a clear regulation regarding the procedural vested right, the necessity to apply this principle continues to exist in the face of the provisions of the CCP. The court that complies with the reversal decision of the Court of Cassation is obliged to take action and make a judgement in accordance with the reversal decision. Because, with the court’s compliance with the reversal decision, a procedural vested right has arisen in favour of the party in favour of the reversal decision. This principle, which is called “procedural vested right” or “procedural acquittal right” in judicial and scientific jurisprudence, is defined in the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 10.02.1988 and numbered 1987/2-520 Main, 1988/89 Decision as follows: “The situation of taking action and ruling in accordance with the reversal decision, which occurs when the court complies with the reversal decision, is a situation that will result in ruling in favour of one of the parties and against the other, and this is called procedural vested right…”. The exceptions to the procedural vested right are not within the scope of the file.

2.When the concrete case is examined, it has been accepted that the defendant physician is defective with the above-mentioned decision of reversal, and by complying with the reversal, this issue has become final and a procedural vested right has arisen in favour of the party. In this case, the work to be done by the court is to evaluate the plaintiff’s request items considering that the defendant physician is defective, to calculate the amount of financial compensation that the plaintiff may request by obtaining a report on what kind of surgeries and in what amount and for how much price these demands can be eliminated, after evaluating whether the conditions are met, if it is accepted that they are met, to evaluate the amount of moral compensation according to the social and economic status of the parties and to make a decision in accordance with the result to be reached.

3. Although the court complied with the reversal, it was not correct to decide to dismiss the case with an incorrect and erroneous evaluation by not making the reversal requirement, and it was deemed appropriate to revoke the judgement for the reason explained.

VI. DECISION

For the reasons explained;

For the reasons explained above, the appeal objections of the plaintiff’s attorney are accepted and the judgement is DISMISSED,

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

The way of correction of the decision shall be open within 15 days after the notification of the decision,

It was unanimously decided on 15.03.2023.

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