Health Law / What is Malpractice / Lawsuits

Health Law is not only a branch of law that regulates the relations between those who demand health services and those who provide these services (health service providers, institutions, organizations, patients), but also regulates their relations with the state in a more comprehensive manner. In this framework, health law appears as a mixed branch of law and includes rules specific to both private and public law branches of law such as civil law, constitutional law, criminal law, administrative law, commercial law.

Although there are many regulations in the field of health law, some principles in the Constitution actually form the basis of health legislation. For example, the right to life, and therefore the right to health, appears as a fundamental constitutional right in the Constitution. Article 56 of the Constitution, entitled 'Health Services and Protection of the Environment', stipulates that everyone has the right to live in a healthy and balanced environment. The 'Right to Health' and the 'Right to a healthy life', which is one of the most fundamental rights of individuals under constitutional guarantee, means that there should be no discrimination between people who have the right to receive services at the same level and under equal conditions. For this reason, patients' rights are basically shaped by the issues of providing health services at the required contemporary standards, in line with scientific principles and experiences, and showing meticulousness in the application of the norms set forth by medical science in the application of the most appropriate treatment for the diagnosed disease.

Medical intervention

Medical intervention refers to any activity carried out by a person authorized to practice the medical profession for the purpose of direct or indirect treatment. These activities range from the simplest diagnosis and treatment methods to the most severe surgical interventions (surgery).

Therefore, medical intervention covers the diagnosis, treatment and protection activities carried out by the authorized person according to the rules of medical science.

In order to be able to talk about the lawfulness of medical intervention, the following conditions must be fulfilled: Existence of medical intervention, consent of the patient (the person concerned), authorization of the person for the medical intervention in the concrete case, performance of the medical intervention in accordance with the obligation of attention and care.

What is Malpractice?

Article 13 of the Turkish Medical Association's Code of Medical Professional Ethics defines the concept of malpractice as follows: Harm to a patient due to lack of knowledge, inexperience or indifference means 'malpractice in medicine'.

According to the definition of the World Association of Physicians, malpractice is 'the damage caused by the physician's failure to perform standard, up-to-date practice during treatment, lack of skill or failure to provide treatment to the patient'.

The concept of malpractice refers to applying wrong treatment. This creates undesirable consequences that develop in the diagnosis, treatment, care and post-care period and directly affect the patient's health status and life.

Lawsuits that can be filed in case of Malpractice (Physician Fault);

Pecuniary and Non-pecuniary Damages Lawsuit

Malpractice constitutes a tort and breach of contract under the law of obligations. The Court of Cassation, with its established practices in this regard, accepts that a proxy relationship is established between the patient and the doctor in private hospitals. At this point, the patient who has suffered damage due to the doctor's error or hospital staff, device, etc. has the right to claim pecuniary and non-pecuniary compensation from both the doctor and the hospital to which the doctor is affiliated, if any.

Criminal Lawsuit

If the physician's error caused the death of the patient, the crime of causing death by negligence under Article 85 of the TPC will occur.

If death did not occur as a result of malpractice, but it caused health problems in the patient, then the crime of negligent injury under Article 89 of the TPC will occur.

Competent Court

The lawsuit for compensation against the hospital and the physician due to the faulty treatment in the private hospital should be filed in the consumer courts as a result of the proxy relationship accepted to have been established between the doctor and the patient.

Administrative jurisdiction is responsible for compensation lawsuits against state hospitals or university hospitals that are public institutions.

Within this framework;

• At the point of initiation and execution of the relevant legal process in resolving disputes arising from activities in the health sector,

• effective legal support is provided to ensure the best possible outcome in patient and physician rights, initiation and effective follow-up of legal proceedings against medical malpractices arising in violation of patient rights in the form of pecuniary and non-pecuniary compensation lawsuits and criminal lawsuits, legal consultancy and hospital attorneyship on the establishment and functioning of private hospitals and polyclinics, etc.; and

• in all other disputes and litigation matters in the field of health law (Dear website visitor, the certificate of the comprehensive training on health law is available on our website in the certificates section.).