Physical and mental harm caused by the mistakes of doctors or health workers are obliged to be covered by the physician or the relevant institution. The patient or, in some cases, the relatives of the patients who are considered to be harmed can claim material and moral compensation, and in case of death, compensation for deprivation of support can be demanded.
The current legal system also provides a protective framework for the patient to compensate the damage and the physician to prove his/her perfection. In today’s practices, compensation liability is largely determined according to the principles of general compensation law, but it is constantly being developed with different practices and regulations according to the characteristics of the situation.
In this bulletin, we have provided the current informations by focusing on the conditions under which the doctor or the hospital will be held responsible for doctor’s errors, how the damage suffered in compensation cases and how to prove it, and how the amount of compensation will be determined as a result,
1. Cases Considered as Malpractice
It is a common situation that the hospital or physician applied for treatment harms the patient with ignorance, inexperience, lack of care, negligence or incomplete or wrong diagnosis and treatments. The most common examples of doctor or health personnel mistakes that require compensation are as follows; inadequate examinations and tests, forgetting a foreign substance in the patient’s body, choosing a wrong treatment, not performing the necessary tests, bringing the complication to the level of malpractice without being noticed, medical practice errors that occur during drug therapy, intervention with the wrong patient, exceeding the treatment limit, surgical technique error, errors in the use of tools and instruments, late reaching or consulting a specialist physician, ignoring the risk of infection, lack of warning to third parties, intervention without examining tests and records, not receiving consultation when necessary.
Failure to do the necessary intervention to the patient also causes the doctor or the hospital to be held responsible for malpractice. In the Supreme Court Criminal General Assembly Decision (2017/278) rules thar, “Emergency service personnel are obliged to provide all medical services to a patient who came to the emergency room due to an emergency medical case, without taking into account whether he has social security and other characteristics, until stabilization is achieved.” .
2. Conditions for Holding the Doctor or Hospital Responsible for Malpractice
2.1. Malpractice or Failure to Intervention When Necessary
If there is a contract in the doctor-patient relationship, the doctor or the hospital may be held responsible for the breach of the contract, and if there is no contract, the doctor may be held responsible for the wrongful act. If the doctor works independently, there is a contractual relationship between the doctor and the patient. In the case of a doctor working in a private hospital, a patient admittance agreement is established between the hospital and the patient. In case the doctor or health personnel makes wrongful practices, these contracts will be violated and the patient must be compensated as a sanction.
In the provisions of the TCC and the TLO, the situations that eliminate the illegality are specified. In this case, the doctor’s intervention becomes lawful in cases such as legal authority, express consent, necessity. However, there are some valuesin which the reason for compliance with the law cannot be created by saying that there is consent in this case. Because the existence of a person’s consent contrary to morality and public order will not be valid in most cases, nor can it be a reason for reduction in compensation according to the TLO.
In the doctrine, there are also views that argue that the health personnel who intervene in exceptional cases – according to some views, not only the doctor but everyone else – cannot be held responsible for any damage.
2.2. Malpractice in Medical Intervention or Neglect of Intervention
Fault can be defined as behavior that is not tolerated by the legal order. One of the most important conditions sought for the doctor to pay compensation is that the doctor acted at fault. Behaviors that differ from the behaviors expected from individuals under the same conditions and that can be attributed to the harmer are flawed. 
Fault appears in two forms as negligence and intent. Involvement in the physician’s responsibility is very rare. In a situation where there is no indication, the physician’s intervention in the patient just to gain financial benefit is a clear example of intent. Negligence is more common in medical malpractice. The degree of negligence is determined by evaluating the care that an average doctor should show and the conditions of the situation. In determining the negligence, the personal reasons put forward by the physician are not taken into account. For example, it is not a valid excuse for the doctor to attribute the source of her/his error to being tired. Accordingly, the degree of medical difficulty and danger of the intervention is included in the assessment.
Since the responsibility of the physician is the responsibility of the attorney, according to the dominant opinion of the Supreme Court, the fault rate of the physician cannot be taken into account in determining the compensation. Because the doctor is responsible for even the least fault. It will not be possible to reduce the compensation by saying that the fault is light. If the relationship between the physician and the patient is not contractual, and if the damage has been caused by tort, the difference will be the patient’s proof of fault. 
Another issue that we can briefly mention here is professional defect. Although professional defect has not found its place in law, it is included in the fourth article of the European Convention on Biomedicine. 
2.3. Harming the Patient or Her/His Relatives Due to the Doctor’s Intervention or Non-Intervention
Damage can be defined as a decrease in the person’s property or emotional and mental state that occurs as a result of the intervention of the physician. The type of damage that a person has to endure can be material – treatment costs, deprivation of support, burial expenses, etc. – or emotional and mental – mood changes, pain and suffering. Each situation will be evaluated in its own terms and possibilities, and whether there is a loss, and if there is, its type and quantity will be determined. For more detailed information on this subject, you can take a look at our article titled “Filing an Action for Damages Due to Malpractice (Doctor’s Error)”.
2.4. Relation of Casuality Between the Doctor’s Error and the Emerging Harm
We can say that a relation of casuality is the establishment of a cause-effect relationship between two events.  Here, there is no difference between tortious act liability and contractual liability, and the Supreme Court foresees this connection in its settled case-laws.
Unlike other cases, this link should be examined more deeply in works contracts. Because, there is a clearer result promised by the physician in the contracts of work, for example, in aesthetic interventions.
It should be evaluated in detail whether the action of the doctor or health personnel will cause harm. Answers to questions such as whether this is an imaginary risk or can the doctor predict this with simple determinations will reveal the existence of a relation of casuality.
2.5. Whether the Patient Has a Fault Affecting the Emergence of the Harm
Pursuant to the provisions of the TCO, if the injured party has made a mistake or contributed to the damage, it may be decided to reduce the compensation or to reject the compensation completely.
Issues such as the patient’s non-compliance with the treatment and the obligations imposed on her/him after the treatment, not having the required examinations, and not using the medication as recommended may cause this result.
2.6. Conditions Not Counted as Physician Error: Complications
All medical practices have some risks. Medical intervention is done or not, taking these risks into account, on the basis of benefit-harm comparison. The risks that are certain to occur or that are known to be likely to occur are not considered an obstacle to the implementation of the application that is clearly beneficial for the patient. If the doctor has made the necessary explanations to the patient about possible risks, the patient cannot be held responsible for these risks.
In order for the patient’s consent, which eliminates the illegality of the doctor’s intervention, to be legally valid, the patient should be given sufficient information about the risks, namely complications. It is necessary and sufficient for the doctor to notify all possible complications, but the risks that are likely to occur due to the patient’s condition and the nature of the intervention to be performed.
If a medical intervention has some risks that the doctor cannot avoid, the doctor should inform the patient about this and obtain her/his consent. The doctor can only be held responsible for her/his faulty intervention.
2.7. Responsibility of the Performance Assistant
The assistant is the person who assists the doctor who assumes the main responsibility in medical interventions. The responsibility of these persons is based on the provisions of the TCO. In this case, there must be an employment relationship between the doctor and the staff. If this relationship does not exist, for example, if the physician has substituted another physician for herself/himself, then there will be no talk of assistant performance.
These persons are also loaded with strict liability, but the responsibility of the assistants can be removed with a pre-arranged agreement.
3. Burden of Proof in Action for Compensation
In cases arising from medical errors, if there is a contract, the patient must prove that the doctor has acted against the duty of care. However, the doctor does not need to prove that he/she is negligent. On the contrary, the doctor has to prove that he/she is faultless.
If there is a wrongful act, then the patient must also prove the doctor’s fault. In a way, if the patient proves that he/she has acted against the professional rules, he/she is deemed to have proven the fault. Because, violation of professional rules is considered as a negligent in a physician.
In German law, a proof system has now been established in order to facilitate the proof in cases concerning the liability of the doctor. The reason for this is the information imbalance between the patient and the doctor. Because medicine is a very technical field, in some cases it is more difficult for the patient to prove, investigate or understand the existence of the defect and prove it in court than the doctor. The doctor is also responsible for proving that the necessary clarification is provided to the patient, the existence of records, and the existence of organizational defect. Shaping Turkish law in a similar way will reduce the suffering of patients.
It is the responsibility of doctors to treat patients in accordance with scientific methods, and the physician is responsible for making the right diagnosis, choosing the appropriate treatment, and carrying out the post-treatment process in the most ideal way. As a result of the violation of the said obligation, legal responsibilities arise. The physician is responsible for rehabilitating the patient as much as possible without causing any harm. If the injured person can show the link between the doctor’s faulty action and the damage, she/he can claim and sue for the damages she/he has suffered by obtaining some material or moral compensation.
Thanks to the actions for compensation we have won, we compensate our clients for their losses resulting from the errors of doctors or healthcare personnel, which are increasingly common in healthcare services. For your legal questions and problems, you can contact Solmaz Law and Consulting Office through our communication channels.
 HAKERİ, Hakan, 2019, Tıp Hukuku, Seçkin Yayıncılık, Ankara s.943, 2019, aktaran WHITE/McDONALD/WILLMOTT, 346, 347.
2 HAKERİ, s.943, 2019.
3Murat DOĞAN, “Hukuki Sorumluluk Bakımından Hekimin Kusuru ve İspatı”, Sağlık Hukuku Sempozyumu, Ankara, 2007, s.39-55
4 HAKERİ, s.943, 2019.
5 Avrupa Biyotıp Sözleşmesi Madde/4: “Araştırma dâhil, sağlık alanında herhangi bir müdahalenin, ilgili mesleki yükümlülükler ve standartlara uygun olarak yapılması gerekir.”
6 Battal YILMAZ, Hekimin Hukuki Sorumluluğu, (Adalet Yayınevi, 3,2017), s.19.
7HAKERİ, s.946,2019 “Bir olay hayattaki genel davranışlara ve olayların tabii akışına göre diğer bir olayı meydana getirmeye elverişli bulunuyorsa, ilk olay uygun sebep ve sonuç ölçüsüne göre ikincisinin nedeni sayılır.”
13rd Civil Chamber of the Supreme Court, 04.03.2013, 2012/7843 E., 2013/5023 K.
9 Türk Borçlar Kanunu Madde/52: “Zarar gören, zararı doğuran fiile razı olmuş veya zararın doğmasında ya da artmasında etkili olmuş yahut tazminat yükümlüsünün durumunu ağırlaştırmış ise hâkim, tazminatı indirebilir veya tamamen kaldırabilir.”
10 DEĞDAŞ, Ulaş Can, “Hatalı Tıbbi Uygulamadan (Malpraktis) Doğan Hukuki Ve Cezai Sorumluluk”, Anadolu Üniversitesi Hukuk Fakültesi Dergisi, Cilt: 1, Sayı: 6, Yıl: 2018, s.60.
11 DEĞDAŞ, a.g.e., s.60.
12 HAKERİ, s.958, 2019.