Many people in our country are unaware of what actions to take in response to damages resulting from medical malpractice during treatment, or they adopt a pessimistic outlook regarding the compensation for such damages. In this article, we aim to discuss what actions patients who have suffered harm due to medical malpractice, or commonly referred to as physician's errors, should take, where they should file a lawsuit, and within what timeframe.
Legally, no one can interfere with another person's bodily integrity or engage in conduct that would cause any alteration to their person. The exception to this rule is medical interventions performed by physicians. Every procedure performed by physicians carries inherent risks. Sometimes, even when all precautions are taken and due diligence is exercised, undesirable outcomes can occur. These are referred to as complications in medical terminology. If a physician fails to intervene in a timely manner or immediately take necessary measures for a complication that has occurred, it ceases to be a mere complication and becomes medical malpractice. In cases other than this situation, the intervening physician bears no liability.
If you are receiving hospital treatment due to a work accident, it would be beneficial for you to review our article on this topic. If the incident causing your treatment was a traffic accident, you can find detailed information on this matter in the section concerning traffic accident compensation lawsuits.
✧ Table of Contents
What's Covered in This Article?
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- Categories of Physician Liability for Medical Malpractice
- The Relationship Between Physician and Patient
- Conditions for Medical Malpractice Compensation
Categories of Physician Liability for Medical Malpractice
The liabilities to which physicians are subject are divided into three categories: criminal, administrative, and professional liability.
Unlawful acts committed by a physician or any other healthcare professional are defined as crimes. Consequently, criminal liability will arise. Medical interventions performed by a physician with the 'consent of the interested party,' i.e., the patient's consent, which is among the grounds for legality, do not fall within the scope of criminal liability. However, if the physician's intervention results in harm due to gross errors, intent (dolus), or negligence (culpa), criminal liability will arise.
Physicians working in state-owned institutions (such as family health centers and state hospitals) are liable to the administration. In cases of liability arising from a physician's interventions, the state, i.e., the administration, is jointly liable with the physician. As with the liability of all public officials, lawsuits resulting from medical malpractice will be filed against the administration. The administration has the right to recourse against the physician concerned for the amount paid.
If the administration is ordered to pay compensation as a result of the proceedings, it can recover this compensation from the physician concerned through a recourse action. You can acquire all the necessary information you need to know before filing a full judicial action against the administration by reading our article on this subject.
Physicians are always obligated to adhere to rules such as not harming the patient, informing the patient at all stages, avoiding all forms of discrimination, not performing procedures without patient consent, and respecting patient privacy. Within the scope of patient privacy, the crime of violating the privacy of private life may arise.
The Relationship Between Physician and Patient
Firstly, the issue we need to address is the legal nature of the relationship established between the patient and the physician. Generally, the relationship established between a physician and a patient is legally recognized as a mandate (agency) relationship. However, in some cases, this relationship may also manifest as an unauthorized management of affairs (negotiorum gestio) or a contract for work.
In the contract established between the physician and the patient, both the physician and the patient have numerous obligations. Firstly, regarding the patient's obligations, these include: paying the physician's fee arising from the contract, providing accurate answers to the physician's questions, and refraining from behaviors that would negatively affect the treatment.
The physician's primary obligation arising from the contract is to diagnose and treat the illness. However, beyond this, the physician also has ancillary obligations such as informing the patient, obtaining consent, maintaining patient records, preserving confidentiality, and exercising loyalty and due diligence. Obtaining consent means the patient is informed in writing about the diagnosis of the illness, the method to be applied for its treatment, and the risks of the treatment.
Conditions for Medical Malpractice Compensation
We have stated that the legal relationship between a physician and a patient is generally contractual in nature. Beyond this, a physician's liability, and consequently compensation for medical malpractice, may in some cases be based on tortious liability and in other cases on unauthorized management of affairs. In this article, we will only examine the physician's liability arising from a mandate contract, which is frequently encountered in practice. If the physician fails to fulfill their contractual obligations, liability will arise, but this liability is subject to certain conditions.
For a physician's liability to arise due to medical malpractice, the following conditions are essential: the existence of a contract, a breach of contract, the physician's fault (culpa) in the breach, the patient suffering damage due to the breach, and the existence of a causal link (causation) between the damage and the faulty act.
A breach of contract refers to the physician's failure to fulfill their contractual obligations. The physician's primary obligation is to diagnose and treat the illness. Breaching this obligation due to a lack of diligence in diagnosing the illness, failing to conduct necessary investigations, misinterpreting investigations due to professional inadequacy, or professional inexperience can give rise to legal liability.
The physician must be at fault (culpable) in the conduct that breaches the contract. This fault can arise from intent (dolus) or negligence (culpa). Failure to exercise due diligence constitutes negligence, while knowingly and willingly breaching the contract constitutes intent.
The patient must have suffered damage as a result of the physician's culpable breach of contract.
Another condition is the existence of a causal link (causation) between the damage suffered by the patient and the physician's conduct.
Scope of Medical Malpractice Compensation
A person who has suffered damage from a medical intervention due to medical malpractice can first claim the costs of additional treatment incurred to remedy the damage. If the person has suffered loss of earnings due to the incorrect intervention and if the incorrect intervention has jeopardized their economic future, these damages must also be compensated.
As a result of a physician's intervention, a patient may experience psychological trauma, distress, and physical pain. The judge must determine these damages suffered by the patient and award non-pecuniary damages (moral damages/pain and suffering) to at least partially alleviate them. The amount of non-pecuniary damages must be satisfactory to the aggrieved patient.
Death Resulting from Medical Malpractice
As a rule, compensation should be paid to the injured patient. However, in the event of the patient's death, compensation for loss of support is paid to those who were financially and morally supported by the patient.
Amount of Medical Malpractice Compensation
The calculation of a person's material damages, i.e., compensation calculation, is generally carried out through expert witnesses. However, the attorney you work with bears a significant responsibility here. That is, the correct selection of the type of lawsuit to be filed.
The calculation of non-pecuniary damages, unlike material damages, depends on abstract circumstances. For this reason, it is a subject that requires specialized expertise. You can contact our experienced, knowledgeable attorney who is familiar with current court decisions on this matter by utilizing our 'Ask a Lawyer' service available on our website.
Statute of Limitations for Medical Malpractice Compensation
Statute of limitations periods vary depending on the legal basis of the compensation claim.
If the legal relationship between the physician and the patient is based on a mandate contract, the statute of limitations period is 5 years from the date the damage occurred.
If the compensation to be claimed due to medical malpractice arises from a contract for work, the statute of limitations period is also 5 years in this case. However, in this situation, if the physician's fault is of a gross nature, the statute of limitations period is 20 years.
If the compensation claim is based on unauthorized management of affairs (negotiorum gestio), the statute of limitations period is 10 years.
If the compensation claim arises from a tortious act, the lawsuit for compensation must be filed within 2 years from the date the patient learned of the damage, and in any case, within 10 years from the date the tortious act was committed. However, if the tortious act also constitutes a crime and the Turkish Penal Code stipulates a longer statute of limitations period for that crime than those mentioned, then the statute of limitations periods provided in the Turkish Penal Code will be taken into consideration.
Av. Mehmet Yücesoy
İzmir Attorney & Legal Consultancy
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