Consequences of unlawful medical intervention
The relationship between personality rights and medical intervention
Personality rights are the set of rights that aim to protect the values a person holds as a being, and the physical, mental, social and economic integrity that makes that person who they are. Personality rights aim at the person's self-realization.
Medical intervention, on the other hand, is directed directly or indirectly at a person's physical and mental bodily integrity. However, the ideal purpose of such intervention is healing, meaning that the person attains health and well-being, a state of complete physical, mental and social well-being. On the one hand, medical intervention constitutes an interference with personality rights. On the other hand, through its function of securing the well-being of the person, it also serves to protect personality rights. Medical intervention is a double-edged sword.
Medical intervention is an interference directed at personality rights, which are also referred to as fundamental rights and freedoms, such as the right to life, the right to health and the right to protect and develop one's physical and spiritual existence. It can be considered lawful to the extent that it complies with the requirements of these rights, and it will then be the most important means of achieving the complete well-being that personality rights aim for. However, if it violates these rights, it will be considered unlawful and will result in a violation of personality rights.
A medical intervention is lawful to the extent that it respects personality rights. In this context, a medical intervention will be considered lawful if it is performed not by just anyone but by a person authorized to perform medical interventions, in the presence of a medical necessity referred to as an indication, in accordance with the principles and rules of medical science and, of course, with the informed consent of the person undergoing the intervention. If these rules are breached, there will be an unlawful intervention that violates personality rights.
A. Consequences of unlawful medical intervention
In general
The legal consequences, and accordingly the liability models, may vary depending on the nature of the legal relationship between the parties to an unlawful medical intervention, namely the physician (healthcare personnel) and the patient. In Turkey, healthcare services are provided through a mixed model. Healthcare services are provided either by the administration or by private persons or institutions with the administration's authorization. In the provision of healthcare services, the relationship between patient and physician may take the following forms:
If the healthcare service is provided by the administration, the relationship between physician and patient is based on public service (PUBLIC SERVICE RELATIONSHIP)
If the healthcare service is provided by a self-employed physician or by private healthcare institutions and organizations, the relationship between the physician or healthcare institution and the patient is, as a rule, based on a contract (PRIVATE LAW RELATIONSHIP)
Where an unlawful medical intervention exists, various forms of liability come into play. These may include liability for compensation to redress the damage the injured party suffered as a result of the unlawful intervention, criminal liability if the harmful unlawful intervention constitutes a crime, and disciplinary liability where professional rules have been breached.
Liability for compensation
Where a public service relationship exists, an unlawful medical intervention gives rise to administrative liability subject to the procedures and principles of administrative law (
Administrative Liability)
Where a private law relationship exists, an unlawful medical intervention gives rise to civil liability subject to the procedures and principles of private law (
- Civil Liability)
- Within the scope of liability for compensation,
compulsory professional liability insurance is required both for physicians working within a public service relationship and for those working within a private law relationship (Law on the Practice of Medicine and Related Arts (No. 1219), Additional Article 12).
Criminal liability
Whether within a public service relationship or a private law relationship, if an act constituting a crime has been committed through an unlawful medical intervention, criminal liability arises under the provisions of criminal law. In this type of liability, the scope of liability does not change depending on the type of legal relationship, but there are procedural differences.
Disciplinary liability
In both types of relationship, a physician who performs an unlawful medical intervention faces disciplinary liability arising from evaluation by the profession's internal oversight mechanism.
2. Administrative liability
This is the compensation liability model that applies where a physician who is a public official employed by a public legal entity performs an unlawful medical intervention. The provision of healthcare services is considered part of the state's duty to provide public services, and a physician's unlawful medical intervention is characterized as the state's failure to properly perform its public healthcare service. In this context, the physician's fault in the medical intervention is treated as SERVICE FAULT. For this reason, a medical error by a physician who is a public official gives rise to the liability of the state, and the injured party's damage is compensated by the state.
The legislative provisions on this model, under which the administration is directly liable for the resulting damage, are as follows:
Constitution, Article 40/3: “Damages incurred by any person through unlawful treatment by public officials shall be compensated by the State in accordance with the law. The State reserves the right of recourse against the official responsible.”
Constitution, Article 129/5: “Actions for damages arising from faults committed by civil servants and other public officials in the exercise of their duties shall be brought only against the administration, in accordance with the procedure and conditions prescribed by law and subject to recourse against them.”
Civil Servants Law (No. 657), Article 13/1: “Persons shall bring actions for damages they suffer in connection with duties governed by public law against the relevant institution, not against the personnel performing those duties.”
Where an unlawful medical intervention exists, the administration's liability arising from service fault, meaning its failure to provide the public service properly, is addressed by the judicial authorities through the distinctions between fault in the performance of duty, pure service fault and personal fault.
Liability arising from a physician's unlawful medical intervention related to their authority or duty (fault in the performance of duty)
Fault in the performance of duty may be described as unlawfulness in interventions within the physician's authority, personal fault that is related to and occurs within the service, or service fault based on personal fault. An unlawful medical intervention means that the public healthcare service has not been performed properly. Within the scope of service fault, it is considered a breach of the duty to select, assign and supervise. For this reason, fault in the performance of duty is treated as a form of service fault. For there to be fault in the performance of duty, there must be an act for which the physician is responsible, and that act must meet the following conditions.
The medical intervention of the physician who is a public official must be unlawful. Damage must occur with an adequate causal link to this unlawful medical intervention. Since fault-based liability applies as a rule, the physician must be at fault.
It is accepted that the degree of the physician's fault will vary depending on the nature of the healthcare service. In interventions that require quick decisions, such as emergencies and risky procedures, where failure to intervene could cause greater harm, or that pose a great danger to human health that may occur beyond control, the scope of the duty of care the physician must exercise may be assessed within a narrower framework.
According to a decision of the Council of State, “Under the principles of administrative law and the settled case law of the Council of State, where the service provided is inherently risky, the administration's obligation to compensate arises only if the damage resulted from a ‘gross service fault’ of the administration. Compensation for damage suffered due to healthcare services, which are inherently risky, is likewise, as a rule, possible only where the administration has committed a gross service fault. However, the ‘gross service fault’ required for the administration's liability to compensate applies to risky medical interventions and operations. For damage arising from certain care, supervision and ancillary interventions that, although part of healthcare services, cannot be included within the scope of a medical operation and were not performed at all or not performed properly, there is no need to establish gross service fault in order to hold the administration liable.” Another example concerning the scope of the physician's duty of care is a court decision stating: “Physicians are obliged, even in cases giving rise to slight doubt, to carry out the examinations needed to eliminate that doubt and to take protective measures. When choosing among various treatment methods, the most appropriate treatment must be selected without exposing patients to unnecessary risk. If there is no response to the treatment applied, the same treatment and diagnosis should not be insisted upon for a long time. The persistent continuation of an unresponsive treatment by the dermatologists and pathologists involved in the incident shows a lack of care on the part of the physicians. Considering how the incident occurred and the nature of the damage, the persistent continuation of the unresponsive treatment increased the plaintiff's pain and suffering. The court must therefore redetermine the non-pecuniary damages according to the criteria set out above, in an amount reflecting the gravity of the administration's fault and taking into account the purpose and nature of non-pecuniary damages.”
Even if the physician performed an act, the physician cannot be held liable where circumstances exist that break the causal link between the act and the harmful result. These circumstances can be listed as force majeure, necessity (unforeseen circumstances), fault of the injured party and fault of a third party.
We can speak of the administration's liability where the physician's liability for damage resulting from an unlawful medical intervention is established. In this case, the injured party may file a full remedy action against the state before the administrative courts to claim compensation. The administration then has recourse against the healthcare personnel, limited to the amount of damage it has paid and in proportion to their fault. The administration files the recourse claim against the healthcare personnel before the civil courts under the general provisions (the provisions of the Code of Obligations). If more than one healthcare professional is responsible for the damage, the state will direct its recourse claim against more than one person. In this case, whether there is a hierarchy or an auxiliary person relationship between the physician and the other healthcare personnel is not considered, and each staff member is held liable in proportion to their own personal fault.
Where the physician is not liable, the administration will not be liable on the basis of fault in the performance of duty. However, even if the physician has no act or fault within the scope of their duty, the administration may still be liable for pure service fault.
Liability arising from the provision of healthcare services apart from the physician's act (pure service fault)
A failure of healthcare services to function properly, that is, service fault, does not arise only from the fault of healthcare personnel. Even if the healthcare personnel have no fault or act, if damage related to the healthcare service has occurred, the state may be liable for the resulting damage because the healthcare service did not function properly. Where the ambulance service cannot be provided in sufficient quantity or quality, where there is no burn treatment center, or where there are not enough medicines, equipment or supplies, the administration may have to compensate the injured party's damage even though the physician is not at fault. The injured party may file a full remedy action against the state before the administrative courts to claim compensation.
In this case, it is debated whether the statement in Article 65 of the Constitution, “The State shall fulfill its duties as laid down in the Constitution in the social and economic fields within the limits of its financial resources, taking into consideration the priorities appropriate to the purposes of these duties,” has any effect on the state's liability.
Liability arising from the physician's personal fault
The state is not liable for damage caused by acts or actions that are separate from the service or duty undertaken by the physician and unrelated to that duty. The physician is personally and directly liable to the injured party for such damage. Proceedings concerning this liability are conducted before the civil courts under the provisions of private law.
In this context, it is also debated whether personal fault exists where the physician's act, although related to the service, constitutes a crime, is committed in bad faith or is committed with gross fault. It cannot be said that the Council of State and the Court of Cassation have issued consistent and stable decisions in disputes concerning personal fault. However, in recent decisions by both courts, there has been a preference not to treat acts constituting a crime, acts in bad faith and acts involving gross fault as personal fault.
3. Civil liability
If the relationship between physician and patient is based on a private law relationship, the physician's unlawful medical intervention gives rise to civil liability subject to the procedures and principles of private law. The injured party may file a compensation action against the physician and/or the healthcare operator before the civil courts.
Depending on whether the physician works independently or at a private healthcare institution or organization, the legal relationship with the patient is as follows:
The relationship between a self-employed physician and the patient
is considered a mandate contract (the view of the Court of Cassation). However, in aesthetic procedures, that is, interventions not intended to remedy an existing health problem, the relationship between physician and patient
is considered a contract for work.
If the physician works at a private healthcare institution (medical center, private hospital, foundation university hospital),
- it is accepted that the relationship between the private healthcare institution and the patient is a mandate contract,
and that the relationship between the physician and the patient is also a mandate contract (the view of the Court of Cassation).
An example
“The plaintiff is the client and patient. One of the defendants is the physician who performed the intervention, and the other defendant is the hospital operator. The case file shows that the procedure performed on the plaintiff was one in which the aesthetic aspect predominated. Likewise, on the second page of the Nasoplasty Surgery Note form in the file, after the complaint, physical examination and diagnosis sections, the Plan section contains the following statements: ‘Rhinoplasty and septoplasty. The nose will be significantly reduced, but a nose suited to the face will be created. The hump will be removed, the nostrils will be reduced and the tip of the nose will be slightly lifted.... will also be corrected together so that breathing is ensured. At the same time, our patient will undergo a forehead lift, the eyebrows will be raised and the face will be given a bright expression.’ In aesthetic procedures, the contractor, in this specific case the hospital and the physician, guarantees that the patient will achieve the desired result. The Plan section expressly guarantees the work to be done and the result. In essence, the difference between a contract for work and a treatment contract lies in the guarantee of the result.”
An unlawful medical intervention that breaches the contractual relationship (mandate contract or contract for work) established between the patient and the physician or healthcare institution gives rise to liability under the Consumer Protection Law (No. 6502). In this context, the injured consumer will assert their claims within the civil judiciary, depending on the amount in dispute, before the consumer arbitration committee or the Consumer Court, which is a specialized court. Under Article 73/A, added to the Consumer Protection Law by the Official Gazette dated July 28, 2020, mandatory mediation (as a precondition to filing suit) applies.
A contractual relationship is not always established between the patient and the physician or private healthcare institution. What other kinds of legal relationships may arise under private law?
The relationship between physician and patient may not always be a contract. At the stage before a contract is concluded between the parties, it is accepted that a relationship of trust is established between them through social contact and the social relationship formed. Situations such as the physician giving the patient false information, providing misleading information to steer the patient toward a particular decision, stalling the patient by giving the impression that a procedure will be performed, or creating the impression that they will diagnose and treat in a field in which they are not a specialist...
In interventions performed where the consent of the patient, or of a person who can make declarations on the patient's behalf, is not required or cannot be obtained, the provisions on agency without authority apply. Examples include cases where the patient is unconscious and emergency intervention is performed, and cases where the scope of surgery changes due to an unforeseen complication during the operation.
We can also approach the relationship between physician and patient through the provisions on tort. Tort liability may arise where there is no contractual relationship between physician and patient, or where, even if there is one, the physician acts contrary to the patient's interests that qualify as absolute rights. Tort liability and contractual liability may exist together. We should note that the two differ in terms of liability for auxiliary persons, burden of proof and the statute of limitations.
4. Criminal liability
The crimes we may encounter in connection with a physician's acts of medical intervention in the practice of medicine can be listed as follows:
- Negligent homicide (Turkish Criminal Code (No. 5237), Article 85) and negligent injury (Article 89)
- Intentional homicide (Article 81) and intentional injury (Article 86)
- Homicide by omission and injury by omission (Article 88)
- Incitement to suicide (Article 84)
- Experimentation on human beings (Article 90) and trafficking in organs and tissues (Article 91)
- Performing an abortion (Article 99) and sterilization (Article 101)
- Disclosure of confidential information related to one's duties (Article 258)
- Failure of healthcare professionals to report a crime (Article 280)
- The most important point regarding criminal liability is that
the prosecution of physicians who are public officials for crimes committed in connection with or during the performance of their duties is subject to authorization by the competent authority (Civil Servants Law, Article 24, Law No. 4483 on the Prosecution of Civil Servants and Other Public Officials, Higher Education Law, Article 53)
5. Disciplinary liability
Professional rules: These comprise models of conduct intended to ensure that relationships between physicians, between physicians and their teams, and between physicians and patients are based on good faith and trust.
Depending on the model under which the physician practices, the disciplinary process is conducted under the Civil Servants Law, the Regulation on Disciplinary Boards and Disciplinary Superiors, the Higher Education Law, the Disciplinary Regulation for Administrators, Teaching Staff and Civil Servants of Higher Education Institutions, the Disciplinary Regulation of the Turkish Medical Association, the Medical Deontology Regulation and the Rules of Professional Ethics for Physicians. Disciplinary proceedings concerning a physician
may be carried out through an internal disciplinary investigation opened by the hospital administration or the health directorate,
or may be conducted by the Chamber of Medicine upon the complaint of the injured party.
This article was written by lecturer Münevver Kübra Bakırcı. We thank her for her contribution.
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