Malpractice Cases and Responsibility of the Physician

*Deniz Mete ÖZCAN

With the specialization that takes place in almost every occupational group today, it is an indisputable fact that the profession performed by physicians requires the most attention because it is related to the right to life itself. In this article, if the physician does not show the necessary care, we will evaluate issues such as the reasons that give rise to responsibility and which courts evaluate these issues in the light of high judicial decisions.
Before starting our article, we feel it necessary to discuss the differences between malpractice and complications. Complications are a predictable risk as a result of a medical intervention, whereas malpractice is the patient’s harm as a result of the incorrect or careless application of medicine. The physician must inform the patient about possible complications and obtain consent from the patient for medical intervention before performing the procedure.

The legal relations that may give rise to the responsibility of the physician are basically four: culpa in contrahendo, acting without power of attorney, tort, and contract. First of all, to give an example of culpa in contrahendo, let’s say you do not like your nose at all and you are negotiating a contract with a specialist physician about nose surgery. The physician tells you the options that may be available to you, and after you sell your car below the market price to pay for the service in question, the physician informs you that he/she cannot make a contract with you. In this case, the physician may have a responsibility arising from the culpa in contrahendo. In other words, a legal responsibility will arise within the framework of the promise given to you by the physician.

As a rule, the physician must explain the complications and risks that may occur to the patient before a medical intervention and obtain the patient’s consent. However, in cases of sudden events, if the medical intervention does not contradict the patient’s special superior interest and presumed consent, such an intervention is also legally justified. For example, suppose a person is bitten by a poisonous animal. Suppose that as a result of this bite, the person’s consciousness is lost and there is a life risk if the leg that the animal bit is not amputated immediately. In this case, if a physician who is with him/her amputates the person’s leg without his/her consent, although it will cause unauthorized work, the physician has no responsibility in this case. Because the amputation of the leg, compared to the death of the person, complies with both his/her assumed consent and his/her superior benefit. Therefore, it would be impossible to talk about tort in such an event.
In addition to these types of responsibilities, the physician may commit a tort against the patient or may not comply with the contract between the patient and the physician. In this case, a responsibility of the physician arising from the contract arises.

At this point, while examining the responsibility of physicians, the quality of the institution they serve will also be taken into consideration. If the patient has applied to a private hospital, since the physician undertakes the treatment on behalf of the hospital, not on his/her own behalf, he/she will be an assistant person in accordance with Article 116 of the Turkish Code of Obligations. However, if the patient applied to a state hospital and encountered a problem because of the treatment he/she received, he/she can file a lawsuit against the state institution to which the public hospital is affiliated. In this case, there is no direct relationship between the patient and the physician, and the patient will be involved in this relationship as a person benefiting from public service, and the physician will be involved in this relationship as a public official.

If the patient applies directly to the physician for treatment, it can be said that there is a proxy relationship between them. From the stable jurisprudence of the Court of Cassation and the dominant view in the doctrine, we can conclude that the relationship between the physician and the patient is a contract of proxy. The reason for the existence of a proxy relationship rather than a service or employment contract between the patient and the physician is essentially that the physician is equipped with wider powers. Unlike service and employment contracts, there is no subordinate relationship or commitment to the employer in the power of attorney contract; the most prominent debt of the attorney in the power of attorney contract, and the physician in our case, is the obligation to perform the work carefully. Based on the judgment of the 13th Civil Chamber of the Court of Appeals, emphasizing that the relationship between the patient and the physician is a power of attorney contract in the jurisprudence numbered 2014/17432 and 2015/8258 of the Civil Chamber, the court stated that the attorney is responsible for the damages arising from the lack of diligence in his efforts, transactions, actions, and behaviors, not for the failure to obtain the result that the attorney directs while performing his power of attorney duty.
Suppose the physician undertakes to perform aesthetic surgery or a dentist undertakes to make a prosthetic tooth for the patient. In this case, what kind of legal relationship will be established between the physician and the patient? In such a case, since the physician will actually create a work, the provisions of a work contract between the patient and the physician will be valid, and the responsibility will be determined in accordance with the provisions of Article 470 et seq. of the Turkish Code of Obligations. If the patient does not pursue a commercial purpose, which is very unlikely, a lawsuit arising from the work contract will be filed with the Consumer Court, not the Civil Court of First Instance. In this case, of course, we assume that a dental prosthesis or an aesthetic intervention is performed in a private hospital. If the said intervention was made in a state hospital, the said application will be made to an administrative court as mentioned above. If the court finds the doctor performing public duty to be at fault, the administration shall recourse the said damage to the doctor.

Under normal circumstances, an application must be made to the Civil Court of First Instance about a dispute arising from the power of attorney relationship. However, if the patient does not pursue a commercial purpose while making the contract, the transaction in question is counted as a consumer transaction. As a matter of fact, in the decision of the 3rd Civil Chamber numbered 2015/18344, it was stated that the dispute between the dentist and the patient arises from the work contract regulated in Article 470 of the Turkish Code of Obligations, that there is no clear provision in the law that the cases arising from the work contract will be heard in the Civil Court of Peace, that there is a relationship between the parties (Dentist-Patient) in the concrete case, that the plaintiff has the title of “consumer” according to the provisions of Law No. 6502 and therefore the court in charge is the Consumer Court.

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