Legal Liability of Physicians and Recourse in Cases of Malpractice

The Turkish Medical Association’s Code of Medical Ethics defines medical malpractice as “harm to a patient caused by ignorance, inexperience, or negligence, constituting poor medical practice.” The concepts of malpractice and complication are distinguished in that complications are considered inevitable damages that may occur despite interventions carried out in accordance with medical standards and precautions. In this context, it should be noted that a physician cannot be held liable for complications.
Malpractice can arise during various stages of the physician-patient relationship, such as diagnosis, examination, testing, treatment, and organization, due to ignorance, inexperience, or negligence. For a physician’s act to be considered medical malpractice and give rise to legal liability, it is not sufficient for the patient to fail to recover or for the treatment to fail to meet expectations. Such results must stem directly from the physician’s actions that violate medical rules, treatment methods, or the duty of care. As long as the physician fulfills these obligations, their actions will not constitute a breach of law.
The Contractual Nature of the Physician-Patient Relationship
To examine a physician’s liability for medical malpractice, it is essential first to define the legal nature of the relationship between the physician and the patient. Although various perspectives exist in legal doctrine, two dominant views are based on the nature of the physician’s intervention:
- In Cases of Medical Treatment
If the intervention involves treatment, it is widely accepted that a mandate agreement is established between the physician and the patient. According to this view, the physician, acting as a diligent agent, is obligated to treat the patient but does not guarantee specific results. In other words, if the treatment does not achieve the desired outcome, the physician is not in breach of contract, provided they adhered to medical rules, loyalty, and the duty of care.
The 13th Civil Chamber of the Court of Cassation (Yargıtay) affirmed this principle in its Decision No. 2006/10057 E., 2006/10057 K., stating:
“Although an agent is not responsible for failing to achieve the intended outcome of the task assigned, it is liable for damages arising from their lack of diligence in performing their duties. An agent’s liability aligns with the general rules governing the liability of an employee, requiring it to act diligently and being held accountable even for slight negligence. Therefore, a physician, acting as an agent, is liable for all professional faults within their field, even minor ones. Physicians must fulfill all professional requirements to prevent harm to their patients, promptly determine the patient’s condition, take necessary precautions, and implement appropriate treatment methods without delay. They are also obligated to resolve uncertainties through thorough research and adopt protective measures during this process. The physician must choose the safest course of treatment while considering the patient’s specific circumstances and avoid actions or behavior that would place the patient at risk. A patient has the right to expect their physician to exercise meticulous care and attention throughout the treatment process and to be informed about risks to their physical and mental health. Failure to demonstrate the required diligence will constitute non-performance under Article 394/1 of the Turkish Code of Obligations. However, if the result remains unchanged despite adherence to medical standards and rules, the physician cannot be held liable.”
- In Cases of Aesthetic Interventions
If the intervention is for aesthetic purposes, it is commonly accepted that a work contract is established between the physician and the patient. In such cases—such as rhinoplasty or dental prosthetics—the physician is deemed to have guaranteed a specific result, in line with the aesthetic purpose and the patient’s expectations. The physician’s obligation is evaluated according to the professional and technical standards expected of a prudent professional in similar circumstances.
The 15th Civil Chamber of the Court of Cassation confirmed this view in its Decision No. 2020/1808 E., 2020/2925 K.:
“A contract was made to carry out aesthetic procedures. Based on the nature of the agreement between the plaintiff and the defendant, it is understood that the legal relationship differs from a treatment contract and that the provisions of a work contract should apply. According to Article 470 of the Turkish Code of Obligations, the contractor’s obligation is to produce a work, while the client’s obligation is to pay the agreed price. By its nature, a work contract involves a guarantee of results. Since the plaintiff approached the defendant for aesthetic purposes, such as breast reduction and tightening and abdominoplasty, it is clear that the subject matter of the contract was to achieve a desirable appearance as agreed and to ensure that the process concluded healthily. The reason for making the contract was to achieve a specific outcome. The contractor, therefore, has an obligation to produce the work without causing any harm to the client.”
The liability of a physician arising from medical malpractice may manifest either as tort liability or as a breach of contract. As a principle, a physician’s contractual breaches during intervention also constitute a tort against bodily integrity. Nevertheless, in cases where there is no contractual relationship between the physician and the patient, tort liability is still applicable. In such instances, the patient may rely on the principles of both tort liability and unjust enrichment in cases of interventions stemming from a contractual relationship.
In accordance with Article 60 of the Turkish Code of Obligations, where the grounds of liability compete with each other, the judge shall decide based on the ground of liability that provides the most advantageous remedy to the injured party, unless the injured party explicitly requests otherwise or the law stipulates otherwise.
For liability to arise, the following elements must be present: unlawfulness, fault, damage, and causal link.
With respect to unlawfulness, Article 63 of the Turkish Code of Obligations provides that:
“An act is not deemed unlawful if it is carried out with the consent of the injured party, serves a superior private or public interest, constitutes lawful defense, or if the intervention by competent public authorities cannot be obtained in time, and the individual protects their rights by their own means, or in cases of necessity.”
The existence of the injured party’s consent does not render every act lawful. It is therefore crucial for the physician to fulfill their duty of disclosure and obtain the patient’s informed consent. In circumstances where obtaining consent is impossible, such as when the patient is unconscious, the act may be justified by the presence of a superior private or public interest or necessity.
With regard to the element of damage, in cases of tort liability, it is specified that reflection damages affecting third parties shall not be compensated, except for loss of support compensation and non-pecuniary damages.
According to Article 52 of the Turkish Code of Obligations, “If the injured party has consented to the act causing the damage, contributed to the occurrence or exacerbation of the damage, or aggravated the position of the liable party, the judge may reduce the compensation or even eliminate it entirely.”
Accordingly, the patient’s behavior, which does not comply with the physician’s prescribed treatment and contributes to or exacerbates the damage, shall also be taken into account when determining the physician’s liability and the amount of compensation.
In cases where exemption agreements are made, Article 115 of the Turkish Code of Obligations stipulates: “In cases where a service, profession, or art requiring expertise can only be performed with authorization granted by law or competent authorities, any prior agreement exempting liability for slight negligence is null and void.”
It should be particularly emphasized that physicians cannot escape liability through exemption agreements.
Types of Compensation
The types of compensation arising from a physician’s liability are divided into pecuniary damages and non-pecuniary damages:
Pecuniary damages include the expenses incurred by the patient due to malpractice. These damages cover not only the costs associated with recovery after the erroneous practice but also the loss of income caused by the malpractice. Additionally, in cases where the patient suffers a permanent disability, they may claim compensation for “loss of earning capacity.” In the event of the patient’s death, their relatives are entitled to claim compensation for loss of support, which is also categorized as pecuniary damages.
Non-pecuniary damages refer to harm inflicted on the patient’s personality and emotional well-being. In cases of severe bodily harm or death, the patient’s relatives are also entitled to claim non-pecuniary damages.
Statute of Limitations
In cases where the relationship between the physician and the patient is deemed a mandate agreement, the statute of limitations is five years from the date the harm becomes known. In cases of tort liability, the statute of limitations is two years from the date the patient learns of the harm and the liable party, and in any event, ten years. Furthermore, it should be noted that if the malpractice constitutes a criminal offense under criminal law and a longer statute of limitations is provided therein, the criminal statute of limitations shall apply.
New Regulations Introduced by the Regulation on the Investigation of Medical Procedures and Recourse of Compensation Paid by Authorities
The Regulation on the Investigation of Medical Procedures and Recourse of Compensation Paid by Authorities, which entered into force on June 15, 2022, establishes the procedures and principles governing investigations into medical procedures performed by healthcare professionals as part of their professional duties. The regulation also provides guidelines for the recourse of compensation paid by public institutions, organizations, and state universities for such procedures, where it is determined by a final criminal court decision that the healthcare professional acted in breach of their duties by engaging in misconduct.
The regulation sets forth the structure and working procedures of the Professional Responsibility Board. According to the regulation, any investigation initiated by the public prosecutor regarding medical procedures performed by healthcare professionals in public institutions or state universities is subject to prior authorization from the Professional Responsibility Board.
In addition, the regulation stipulates that for recourse claims concerning amounts paid by public institutions, organizations, or state universities in lawsuits arising from medical procedures performed as part of professional duties, the following conditions must be met: (i) the healthcare professional must have intentionally violated their duties. (ii) There must be a final criminal court decision confirming that the healthcare professional engaged in misconduct. In such cases, the degree of fault of the healthcare professional will be considered, and the amount to be recourse shall be determined by the Professional Responsibility Board.