Type of Interest to be Claimed in Malpractice Lawsuits

In the full text of the Court of Cassation Decision below, the plaintiff’s attorney demanded legal interest in terms of pecuniary damages and non-pecuniary damages, reserving his rights regarding the excess as default interest in the lawsuit against the defendant hospital and physician. With the amendment petition, while claiming his right to more in terms of material damages, he requested advance interest, ie commercial interest (commercial default interest) as default interest.

The court of first instance ruled in accordance with the plaintiff’s request with commercial advance interest in terms of pecuniary damages and legal interest in terms of non-pecuniary damages, and the decision was approved by the Court of Cassation. (Here, the court is bound by the request in terms of non-pecuniary damages, otherwise we think that advance interest can be requested in terms of non-pecuniary damages).

Can the type of interest be changed with a Petition for Amendment?

The opinion of the dissenting member in the dissenting opinion is also included in the decision, and it is stated in the dissenting opinion that the type of interest cannot be changed with the amendment petition. However, this opinion is the dissenting opinion, i.e. the minority opinion, and the majority opinion in the panel is that the type of interest can be changed by amendment.

Which type of interest can be claimed as default interest in malpractice lawsuits?

Precedent Supreme Court Decision:

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

OF THE JUDGEMENT UNDER REVIEW

DATE : 09.10.2012

JUDGMENT/DECISION : Partially Accepted – Partially Rejected

As a result of the appellate review of the judgement rendered in the compensation case between the parties, the 15th Civil Chamber of the Court of Cassation (closed) decided to revoke the Court’s judgement.

As a result of the retrial conducted by the court in compliance with the reversal; it was decided to partially accept the lawsuit.

As a result of the preliminary examination made in terms of finality, duration, condition of appeal and other procedural deficiencies, after it was decided to accept the petition for appeal and the report prepared by the Examining Judge was heard, the documents in the file were examined and considered:

I. LAWSUIT

The plaintiff’s attorney in the petition for lawsuit; In April 2010, the plaintiff agreed with the defendants for 3500 euro to have a breast implant and paid the fee, after which the implant was applied with surgery, she went to the examination due to the pain in the right breast after the surgery, they said that the inflammation was removed with a needle and that she could leave after a few days of the procedure, whereupon she returned to Germany, She went to the hospital in Germany due to her complaints, she was treated with antibiotics, but the wounds did not go away, as a result of the examinations carried out as a result of the examinations made, the silicone was removed and treatment was applied for the wounds in the hospital because the breast prosthesis procedure performed by the defendants was medically faulty, she called the defendant hospital and the doctor and explained the situation, the hospital authorities stated that they would apply the silicone to her for the second time. In the 11th month of 2011, the hospital applied the silicone sealant again, but the result did not change and he was exposed to the same discomfort again, he came to Turkey again and when he applied to the defendants, the silicone sealant was removed by the decision of the defendants, due to the intervention applied, he currently has loss of sensation in the right arm area and fingers, for this reason, he stated that he could not perform his profession and he was awarded 1.000,00 TL, 6.000,00 TL for hospital expenses, 3.000,00 TL for other expenses, a total of 10.000,00 TL financial compensation, 12,173,82 TL with commercial default interest from the date of the incident and 100.000,00 TL moral compensation with legal interest from the date of the lawsuit.

II. ANSWER

Defendant Defendant … Sağlık Tesisleri Limited Şirketi in its reply petition; the plaintiff, who was admitted to the hospital on 11.04.2010, had her breasts reduced and recovered by Dr Salih M. Osmanoğlu, the operation in question was extremely successful, the patient was discharged on 16.04.2010.2010, the patient was discharged on 16.04.2010, after a period of 1,5 years, the plaintiff requested that the prostheses placed on her breast be replaced with larger ones, the doctor warned the patient that the larger prosthesis would not be suitable for her breast and that if she was not careful, it could cause an opening in the sewn part, the prostheses in the breast were removed on 11.11.11.2011 and the large prostheses requested by the patient were inserted, then the patient returned to Germany, the plaintiff did not do what he should have done after his return, there was an opening in the sewn parts, then on 18.02.2012, the prostheses placed at the request of the plaintiff were removed in the hospital, stating that no money was requested from the plaintiff for this, and requested the dismissal of the lawsuit.

The other defendant did not file a reply.

III. COURT JUDGEMENT

With the Court’s decision dated 07.04.2016 and numbered 2012/273 Esas, 2016/135 Karar, it was decided to dismiss the lawsuit considering the expert report and the report received from the forensic medicine.

IV. REVERSAL AND THE JUDICIAL PROCESS AFTER REVERSAL

A. Reversal Decision

1. The plaintiff’s counsel appealed against the above-mentioned decision of the Court within the prescribed period.

2. With the decision of the 15th Civil Chamber of the Court of Cassation (closed) dated 23.05.2018 and numbered 2018/415 Esas, 2018/2123 Karar, the expert report dated 13.03.2014 dated expert report, the first consent form was insufficient, the patient, i.e. the plaintiff, was not sufficiently enlightened, it was explained that the operation to be performed during the operation should be approached more meticulously, and this situation revealed that the defendant doctor did not fulfil his duty to warn the plaintiff, It was decided to overturn the decision by pointing out that it is not appropriate for the court to accept that the defendants are responsible and that the amount of material damages that the plaintiff can claim should be calculated by forming an expert expert committee and the amount of non-pecuniary damages should be determined and a decision should be made according to the result.

B. Decision rendered by the Court in Compliance with the Reversal

It is understood that the defendant physician is defective due to the incident subject to the case in accordance with the expert report dated 01/09/2020, which was submitted to the file and taken as basis for the judgement in line with the decision of the court dated and numbered above, and that the material damage that the plaintiff can claim is 12.173,82 TL in the root expert reports dated 23/02/2021 and additional expert reports dated 04/07/2021, which were submitted to the file and taken as basis for the judgement, and taking into account the amendment petition made over this value, the plaintiff’s request for material compensation is accepted 12.173,82 TL pecuniary compensation together with the commercial interest to be accrued from 11/04/2010, the date of the incident, to be jointly and severally collected from the defendants and given to the plaintiff, partial acceptance and partial rejection of the claim for non-pecuniary damages due to the occurrence of the conditions for non-pecuniary damages; It was decided to award 10.000,00 TL non-pecuniary damages to the plaintiff together with the legal interest to be accrued from 09/10/2012, the date of the lawsuit, to be jointly and severally collected from the defendants and given to the plaintiff, and to reject the plaintiff’s request for more.

V. APPEAL

A. Appellants

The attorneys of the parties filed an appeal against the above-mentioned decision of the Court within due time.

B. Grounds of Appeal

Defendant … In the petition of appeal, the attorney of Sağlık Tesisleri Ltd. Şti. stated that there is no determination that the prosthesis application was performed incorrectly in the documents and expert reports in the file, that the patient has been duly informed about the risks and his consent has been obtained, that the situation that occurred after the second operation requested by the plaintiff is a complication of the surgery in question and that appropriate treatment was performed as a result of the complication, that the lawsuit should be rejected, that the expert report dated 23.02.2021 dated expert report submitted to the file, that they objected to the calculation made in terms of the calculation of pecuniary compensation, which is not within the scope of the expertise of the expert, that it is erroneous to award pecuniary compensation based on this report prepared by ignoring the principle of adherence to the request, and that the claims for non-pecuniary damages should be rejected since the client is flawless, that the amount awarded for non-pecuniary damages is also exorbitant, that the plaintiff requested commercial interest with the amendment petition, although the plaintiff requested legal interest in the lawsuit petition, but this request cannot be changed with the amendment petition, and that the decision is irregular.

In his petition for appeal, the defendant … attorney stated that it was understood from the expert report dated 01/09/2020 submitted to the file that his client had no fault, that the calculation of pecuniary compensation was exorbitantly excessive, that it was exorbitantly excessive in violation of the basic principles regarding the calculation of non-pecuniary compensation and the situation of the parties, and requested the reversal of the decision for reasons to be observed ex officio.

The plaintiff’s attorney appealed on the grounds that the court’s award of 10.000 TL non-pecuniary damages was not sufficient in the face of the pain and disappointment suffered by his client and that the decision was contrary to the law.

C. Justification

1. Dispute and Legal Characterisation

The dispute is related to the claim for pecuniary and non-pecuniary damages arising from the contract of work.

2. Relevant Law

Article 428, paragraphs seven, eight and nine of Article 438, paragraphs seven, eight and nine of Article 438 and the second paragraph of Article 439 of the abrogated Code of Civil Procedure No. 1086, which continues to be applied by reference to the second paragraph of the provisional Article 3 of the Code of Civil Procedure No. 6100, Articles 470 and following articles of the Turkish Code of Obligations No. 6098…

3. Evaluation

1. Reversal of the final decisions of the courts is possible in the presence of one of the reasons stated in the second paragraph of Article 428 and Article 439 of the abrogated Law No. 1086, which continues to be applied by reference to the second paragraph of the provisional Article 3 of the Law No. 6100.

2. The relationship between the parties is a work contract relationship regulated in Articles 470 and following of the Turkish Code of Obligations No. 6098. In the presence of a contract of work, the dispute should be resolved according to the provisions of the contract of work. The most important difference that distinguishes the work contracts from other work contracts is the responsibility for the result, that is, the contractor undertakes to produce a result in line with the agreements of the parties. Pursuant to Article 471 of the Turkish Code of Obligations, the contractor who undertakes to produce 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 works in a similar field should show will be taken as basis. The duty of loyalty also means that the contractor shall do things that will benefit the owner and not do things that will harm the owner.

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. In the concrete case, the plaintiff filed a lawsuit claiming that the defendant contractors did not fulfil their obligations, did not perform surgery in accordance with the requirements of the commitment and medicine, and that the aesthetic surgery failed. With the reversal decree, which was complied with by the court, it was stated that with the acceptance that the defendants are responsible, the amount of material compensation that the plaintiff can claim should be calculated by forming an expert expert committee, the amount of moral compensation should be determined and a decision should be made according to the result.

3. Although the defendants appealed the decision on the grounds that they were not found to be at fault in the incident; since the defendants were accepted to be responsible with the reversal judgement and the court complied with the reversal judgement, this issue has created a procedural vested right for the benefit of the plaintiff. The objections of the defendants to the calculation of pecuniary damages were not deemed appropriate since the expert report was in accordance with the scope of the file and the audit, and the objection of the defendant hospital that commercial interest cannot be requested by amendment should be rejected since it is possible to change the type of interest in the lawsuit petition through amendment and the plaintiff has made this change.

Although the parties have appealed the decision in terms of the amount of non-pecuniary damages awarded, in the concrete case, the amount of non-pecuniary damages awarded by the court is appropriate, considering the fact that the plaintiff had to undergo surgery more than once, that this was spread over the years, the fault and social and economic conditions of the parties, and the economic conditions of the day, and the appeal objections of the parties in this respect were not deemed appropriate and had to be rejected.

4. It is understood that the decision of the Court examined on appeal is in accordance with the reversal, that there is no inaccuracy in the application of the rules of law to the concrete case in the decision and the reasoning of the decision, and that it is not legally possible to re-examine the aspects that constitute a vested right in favour of the other party by complying with the reversal; the reasons put forward by the attorneys of the parties in the petition of appeal are not deemed to be of a nature that requires the reversal of the decision.

VI. DECISION

For the reasons explained;

Rejecting all the objections of appeal of the attorneys of the parties, the decision, which is in accordance with the procedure and law, is APPROVED,

The following appeal costs shall be charged to the appellants,

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

To send the file to the Court,

It was decided by majority vote on 04/05/2023.

(Dissenting)

DISSENTING OPINION

Article 2 of the Law No. 3095 on Legal Interest and Default Interest regulates default interest. In this article; the debtor who defaults in the payment of an amount of money is obliged to pay default interest according to the legal interest rate determined in Article 1 for the past days, unless otherwise agreed by contract (Art. 2/1), if the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances on 31 December of the previous year is higher than the above-mentioned amount, even if there is no contract between them, default interest in commercial transactions can be requested at this rate, and if the said advance interest rate is five points or more different from the advance interest rate applied on 31 December of the previous year on 30 June, this rate will be valid in the second half of the year (Art. 2/2).

With this regulation, although the default interest rate is determined as the legal interest rate in both ordinary and commercial transactions, the creditor is entitled to request advance interest in commercial transactions. The type and rate of default interest to be paid by the debtor is determined by the creditor’s exercise of the creditor’s right to request legal interest or advance interest. Therefore, the creditor’s request for default interest at the rate of legal interest or advance interest is the exercise of a right of choice that has consequences in the field of substantive law.

According to Article 87 of the Turkish Code of Obligations No. 6098; in optional obligations, unless otherwise understood from the legal relationship and the nature of the business, the choice of one of the acts belongs to the debtor, but with the provision of Law No. 3095, the right to choose the type of default interest is granted to the creditor, not the debtor.

The right of choice in optional obligations is one of the rights that give rise to novelty. Novelty rights are rights that are exhausted and terminated by using them once. Since the right that gives rise to novelty has achieved its purpose by being used and thus the right is exhausted, it cannot be used a second time. Since a right that has been exhausted and does not exist cannot be used, it will not be possible to revoke the used right and use the other optional right instead. For this reason, the creditor who requests legal interest instead of requesting advance interest will have lost the right to request advance interest, which is the other optional right, by exercising one right of choice.

The choice made in the partial lawsuit regarding the default interest rate to be applied to the receivable is also binding for the unclaimed part of the receivable. Because the receivable is a whole with the part of the receivable that is not sued, and the above-mentioned provision on default interest does not stipulate a right of choice to request default interest at the rate of legal interest for a part of the receivable and advance interest for a part of the receivable.

Since asking for legal interest instead of advance interest assigns a scope to the debt, the choice made has consequences in the field of substantive law.

Since the purpose of the amendment is to eliminate the loss of material rights that may arise due to the violation of form and time in the judicial process, it is not possible to correct the material law transactions that have eliminated the right and claim outside of this process through amendment. The parties may make transactions such as waiver, acceptance, declaration of termination, defence of exchange, use of the optional right, which have consequences in the field of substantive law together with procedural transactions. Although these transactions are made within a procedural transaction, they retain the characteristic of a substantive law transaction in terms of content. Because the conditions and consequences of these transactions are regulated by substantive law. For this reason, it is not possible to correct such substantive law transactions by way of amendment, even if they are made within a procedural procedure.

When the concrete case is evaluated together with the above-mentioned explanation and the aforementioned rules; while the plaintiff requested the collection of 10.000 TL pecuniary damages with legal interest with the first lawsuit petition, he increased his request with the amendment petition and amended the legal interest request in the first lawsuit as commercial default interest. With the request for legal interest in the first lawsuit, a declaration of will has been made in the field of substantive law, and thus the right to request advance interest, which is the other optional right for the entire receivable, has been lost. Since it is not possible to eliminate this result arising in the field of material law through amendment and use the other optional right, it is not correct to make a decision in writing, while it is necessary to decide to collect with legal interest in terms of financial compensation claim, the defendant’s appellate objections referring to this should be accepted and the judgement should be reversed in this respect.

Although I agree with the valuable majority opinion since the appeal objections are not appropriate in other aspects, I cannot agree with the valuable majority opinion in this aspect since I think that legal interest should be applied since it is not possible to change the interest type selection made through amendment.

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