Physicians are people who have received medical training in order to prevent and treat diseases. However, physicians are professionals working in the field of medicine. The profession of medicine is a difficult profession and carries many risks in it. The medical profession is related to people's right to life. So much so that the mistake made by physicians can take away people's lives. Therefore, it is a very important and valuable profession. However, due to the high risk involved in the profession, physicians should show the highest care in their medical practices to their patients. Because a mistake of physicians takes away a person's right to life. The care shown by physicians should be at the highest level. You can get more detailed information by contacting an Istanbul malpractice lawyer. You can get more detailed information by contacting an Istanbul malpractice lawyer.
Although a physician takes care, the lack of sufficient care reveals the responsibility of the physician. The physician is responsible for his inadequate care. However, if the physician has fulfilled his / her care but still has negative results after the medical intervention applied to the patient, the responsibility of the physician cannot be mentioned here. What is important is that the physician shows the highest degree of care and performs his profession in the most meticulous way. Responsibilities are stipulated due to the physician's failure to perform his / her profession with the necessary care and the consequences arising from this. It is possible to include these responsibilities in the concept of malpractice. The definition of malpractice has been made in the Turkish Medical Association medical professional code of ethics. According to the rules of professional ethics of the Turkish Medical Association, damages that occur in patients due to ignorance, inexperience or physician's error are defined as malpractice. According to the declaration of the World Medical Association, the definition of medical malpractice has been made. The harm caused by the physician's absence from standard practice during treatment, the physician's lack of skill, or the physician's failure to treat the sick person constitutes the definition of malpractice according to the declaration of the World Medical Association. However, the declaration of the World Medical Association stated that malpractice should be separated from complications. Complication is the condition that occurs during the medical care and treatment of malpractice and does not involve the fault of the physician. The separation of malpractice and complication determines the responsibility and irresponsibility of the physician. If there is a medical intervention that results in the harm of the patient and this intervention is caused by a complication, the responsibility of the physician cannot be mentioned. If a medical intervention that results in the patient's harm is caused by a property cactus, the physician's responsibility occurs. Thus, if the medical intervention is applied correctly and adequately, the physician is not held responsible for the complications that occur in the patient. Cases related to malpractice, that is, doctor error, are handled by Health Law and Malpractice Lawyers.
Who Can Practice Medicine?
Who can perform medical practices is important in terms of criminal responsibility. People who perform medical practices are responsible for damages caused by malpractice. In order to be able to mention the existence of a faulty medical practice, the persons performing this practice must be authorized by law. When medical practices are performed incorrectly, they can cost people's lives. Therefore, medical interventions must be carried out by persons authorized by law. Risk of medical practices Due to the consequences, the people who will perform this practice must be health personnel. In this way, it becomes possible for the individual to be protected by the Law from the negative consequences of possible medical interventions. Although it is protected by law, this protection is also provided in the article under the title of the rights and duties of the person in the second part of our constitution. According to Article 17 under the heading of inviolability, material and spiritual existence of the person, each person has the right to protect and develop his material and spiritual existence to his own life. Except for medical necessities and cases written in the law, the integrity of the person's body cannot be touched. Scientific and medical experiments cannot take place without the consent of the persons. The state of self-defense, the execution of arrest and detention orders, the prevention of the escape of a prisoner or convict, the suppression of an uprising or rebellion, or in the case of states of emergency, the use of weapons in the execution of orders by authorized persons in any of the circumstances permitted by the law, acts of killing occurring due to compulsory circumstances are excluded from the provision that everyone has the right to life, to protect and develop his material and spiritual existence. The second paragraph of Article 17 of the Constitution includes situations related to medical interventions. This provision contains the content of "Except for medical necessities and cases written in the law, the bodily integrity of the person shall not be touched and the person shall not be subjected to medical experiments without the consent of the person". According to him, it is necessary to rely on the law to provide medical intervention. However, it is possible to intervene in people when there are medical necessities. Law No. 1219 on the Style of Execution of Tababet and Şuabati Arts is the law that includes the persons who can perform medical intervention, physicians, dentists, stages, health officers, circumcision persons, nurses. This law specifies who these people are and their qualifications. For example, in order for physicians to perform a medical intervention, they must have a diploma from the medical faculty regardless of the practice and whatever the process is within the Republic of Turkey. Dentists, on the other hand, are authorized to carry out all kinds of professional activities related to human health, to protect the health of the teeth, gums and jaw tissues in direct connection with them and to diagnose and treat diseases and irregularities. The intervention of persons in medical practice other than those defined in the law shall be contrary to the law. You can get more detailed information by contacting an Istanbul malpractice lawyer.
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Many legal bases can be mentioned regarding the relationship between the patient and the physician. Many different laws and relationships between the patient and the physician regarding various conditions have been included. In order for the physician to be responsible for the negative consequences of the faulty medical intervention on the patient, the bases in the law must be in question. However, when it comes to the responsibility of the physician, the quality of the institution and organization that this physician serves is also important. The reason for this is that if a problem arises between the patient and the physician and there is a malpractice, the lawsuits to be filed as a result of this malpractice must be of a legal nature. It is possible to say that the patient-physician relationship is a power of attorney contract. Because the fact that there is a power of attorney agreement is in this direction in the dominant views in the doctrine and in the decisions of the Supreme Court. The power of attorney agreement is included in the provisions of the Turkish Code of Obligations No. 6098. According to this law, a power of attorney is a contract in which the person who is the proxy undertakes to perform a business or perform a transaction of the power of attorney. The provisions relating to power of attorney shall also apply to the contracts of employment regulated in the Turkish Code of Obligations to the extent that they correspond to their nature. In the case of a contract or custom, the agent is entitled to the fee. The establishment of a power of attorney agreement has the force of law. If the person to whom a job is proposed has an official capacity to perform this job, or if it is a requirement of his profession to do this job, or if he has announced that he will accept such work, if this proposal is not immediately rejected by him, the Power of Attorney contract is established. If the scope of the power of attorney is not clearly indicated in the contract, it is determined according to the nature of the work to be seen in the power of attorney agreement. In particular, the power of attorney includes the authority to carry out the legal proceedings necessary for the performance of the work undertaken by the representative. If the attorney is not freely empowered, he cannot sue. Cannot be a peacemaker, cannot apply to the arbitrator Cannot claim bankruptcy, postponement of bankruptcy and bankruptcy agreement cannot be found on the date of exchange can not make forgiveness can not vouch for immovable transfer and cannot be limited by a right. The law includes the debts of the deputy. The obligation of the proxy such as proper performance, personal performance, loyalty and diligence, accountability, transfer of acquired rights to the power of attorney can be mentioned. First of all, there should be a statement in accordance with the surrogate instruction. The proxy is under an obligation to comply with the express instructions of the power of attorney. However, when there was no possibility of obtaining permission from the power of attorney, it is possible for him to depart from the instruction in cases where it is clear that he would have given permission if he had known about the situation. In the case of other situations, if the proxy departs from the instruction, he will not perform his power of attorney obligation even if he has seen the work unless he meets the damage arising from this. The proxy has personal obligations of loyalty and diligence. The proxy is under the obligation to perform the power of attorney obligation itself. However, in cases where the proxy is authorized or where it is compulsory or the custom makes it possible, the proxy may have someone else do the work. The proxy is under the obligation to carry out the work and services undertaken by the proxy with loyalty and care, taking into account the legitimate interests of the power of attorney. In the event that the liability of the representative arising from the private debt is determined, the behavior of a prudent representative undertaking work and services in a similar field is essential. If there are cases where the proxy does his work to the third party, some situations are encountered. If the deputy goes beyond his authority and sees the work to someone else, he will be responsible for his act as if he had done it himself. If the proxy is authorized to give power of attorney to another person, he is obliged to show due diligence only in the selection and instruction. In both cases, the person giving the power of attorney has the right to assert directly against that person the rights that the proxy has against the person he has placed in his place. Attorney debts include accountability. The proxy is obliged to account for the work carried out at the request of the person giving the power of attorney. However, he is under the obligation to give to the power of attorney what he receives in connection with the power of attorney. The proxy is under the obligation to pay the interest of the money that the power of attorney is delayed in delivery. The transfer of the acquired rights to the person giving the power of attorney is also counted among the debts of the proxy. The receivables of the proxy in third parties arising from the works that the proxy has seen on its own behalf and on behalf of the proxy automatically pass to the power of attorney as soon as the person giving the power of attorney performs all his debts against the proxy. If the proxy is insolvent, the person giving the power of attorney has the right to assert against the bankruptcy table that this receivable has passed to him. The person giving the power of attorney may request that the movable property that the proxy has been made in the name of the power of attorney be separated from the bankruptcy table and given to him. The bankruptcy office also benefits from the right of imprisonment that the deputy has. The information given above was related to the debts of the deputy. The duty of attorney is covered by the provisions of the appropriate performance of the person, loyalty and diligence, accountability and the transfer of acquired rights to the power of attorney. However, the debts of the person giving the power of attorney are also included in the provisions of the law. The person giving the power of attorney is obliged to pay the expenses incurred by the proxy and the expenses given by the proxy together with interest for the proper performance of the power of attorney and to recover him from the debts he has incurred. The proxy person may apply to the person giving the power of attorney for compensation for the damage suffered due to the performance of the power of attorney. In other words, the proxy has the right to request the removal of this damage from the person who gives the power of attorney due to the damage suffered. However, if the power of attorney has evidence that he is not at fault, he is relieved of this responsibility. It is also possible to mention the existence of provisions that relate to the liability of the power of attorney and the joint proxies, as well as the debts of the power of attorney. If there are persons who give power of attorney to a person, these persons shall be jointly liable to the proxy. Persons who have undertaken the power of attorney together are jointly responsible for the performance of the power of attorney. However, unless these persons have the right to delegate their powers to others, it is possible for them to put the power of attorney under debt only because of the acts and transactions they have done together. You can get more detailed information by contacting an Istanbul malpractice lawyer.
The situations that terminate the power of attorney agreement are included in the provisions of the law. There are a number of reasons that lead to the termination of the power of attorney agreement. It is possible to mention these reasons by dividing them into two. The power of attorney agreement may terminate due to the reason for unilateral termination and death, registration of driver's license and bankruptcy. First, we can talk about the unilateral termination. The power of attorney and the proxy have the right to unilaterally terminate the contract at any time. However, if there is no suitable time, the party who has terminated the contract is under the obligation to compensate the other for the damages incurred due to this. So much so that the liability of the party who terminated the power of attorney agreement at a time that was not in accordance with it is in question. In other words, the power of attorney and the proxy must terminate the contract between them within a time that does not harm each other. If they don't take this into account, they take responsibility for each other's losses. The power of attorney agreement can end with death, loss of driver's license, and bankruptcy. Unless otherwise understood from the weddings included in the contract or the nature of the existing work, the contract may end automatically with the death of the attorney or the person giving the power of attorney, loss of capacity or bankruptcy. This applies if one of the parties is a legal entity and at the termination of this legal entity. If the fact that the power of attorney has given the following endangers the interests of the person giving the power of attorney, the person giving the power of attorney or the person who is the heir or representative of such person is under the obligation to continue to perform the power of attorney until it is possible for him to see things to do on his own. Persons who are the power of attorney or heir are responsible for the works done by the person who is the proxy before learning the time when the contract has expired as if the contract is continuing.
So much so that it is a power of attorney contract to the contract established between the patient and the physician. For this reason, if a damage occurs as a result of the relationship between the physician and the patient as a result of the treatment, the provisions relied upon by the patient in the lawsuit to be filed by the patient shall be the provisions of violation of the contract. The person who is sick has the right to apply to a hospital or a health institution along with applying to a physician. If patients do not have a physician they have previously chosen when they apply to a health institution, they can be examined and treated by a physician appointed by the hospital. In such a case, the relationship that will arise is not between the disease and the physician. In other words, the relationship that exists in this case is established between the hospital and the patient.
It is possible to talk about two different situations in relation to the hospital. So much so that hospitals serve as private hospitals and state hospitals. It is possible to say that there are some differences in terms of the relationship established between the service the patient receives in the private hospital and the service he receives in the State hospital. In this case, it is possible to mention them by saying that there is a different situation in terms of the relationship established between private hospitals and state hospitals. You can get more detailed information by contacting an Istanbul malpractice lawyer.
If the hospital to which the patient has applied is a private hospital, it is possible to say that a relationship has been established between the patient and the private hospital when the patient applies for the purpose of treatment. It is possible that the contractual nature of the relationship that will arise here can be called the patient admission contract. In the relationship established between the patient and the physician, the physician is deemed to have undertaken treatment on behalf of the hospital and not on his own behalf because he works in the hospital. Therefore, the physician is called the injured assistant person in the relevant provisions of the Turkish Code of Obligations No. 6098. The point to be considered in the presence of an assistant person is related to what the responsibility of the physician will be. Thus, according to the provisions of the Turkish Code of Obligations No. 6098 under the title of responsibility for the actions of auxiliary persons, the physician is responsible. It is possible to talk about these provisions. According to the circumstances related to liability for the acts of the helpers, even if the debtor has lawfully abandoned the performance of his debt or the exercise of his right arising from a debt relationship to the persons who assist him, such as the persons with whom he has lived or those who work with him, they are under the obligation to compensate for the damages that these persons have caused to the other party in the course of performing their Business. With a previous agreement, it is possible to partially or completely remove the responsibility arising from the actions of the helpers. If a specialized service is to be carried out only with the permission of the law or the competent authorities, the agreement that the debtor will not be responsible for the acts of the auxiliary persons is absolutely null and void.
If the hospital to which the patient has applied is a state hospital, it is not possible to mention that a contractual relationship has been established between the patient and the hospital. In other words, as in the private hospital, it is not possible to talk about the establishment of a relationship between the patient and the hospital with the application of the sick person to the hospital. So much so that the physician in the state hospital undertakes treatment as a public official. However, it is not possible to say that there is a direct relationship between the physician and the patient. If the patient is harmed by the treatment in the state hospital, it is not possible to sue directly in front of the physician or the relevant health provider. In the presence of such a situation, it is possible for the person who is sick to file a lawsuit against the state institution where the state hospital is located. If a loss occurs due to the services provided by public hospitals, this situation is called a service defect. In other words, the damage caused by the physician or health personnel on the patient cannot be covered by a lawsuit filed against them personally, but since the service provided by the state hospital is defective, it is met by a lawsuit to be filed against the state institution to which the hospital is affiliated.
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Above, we have included information about what the relationship between the patients will be if they apply to the state hospital or a private hospital. We said that when the patient applied to a private hospital for treatment, it would be possible for him to file a lawsuit against the private hospital, arguing that there was direct private hospital responsibility for the damages incurred on him. We stated that it was not possible for the patient to file a lawsuit directly against the physician due to the fault of the physician serving in the private hospital and that we could file a lawsuit against the hospital where the physician worked. We added that the physician is undertaking the treatment in the position of assistant winter within the private hospital. We said that if the patient applied to a state hospital, a lawsuit could not be filed against the physician who treated the patient for the damages that would occur on the patient. Here, we stated that due to the fault of the physician in the state hospital, it would be possible to file a lawsuit directly against the state institution to which the State Hospital is affiliated and not directly against the physician. In addition to the fact that patients apply to the state and private hospitals for treatment, another option is to apply to the self-employed physician. Patients can also apply to an independent physician. If patients apply directly to a physician for treatment, the nature of the relationship between the independent physician and the patient becomes a power of attorney agreement. Since the relationship between the physician and the patient is in the nature of a working contract, the power of attorney agreement is relied upon for disputes between the physician and the patient. You can get more detailed information by contacting an Istanbul malpractice lawyer.
What are the Provisions Regarding Malpractice?
Malpractice is defined as the physician's failure to perform standard practice during treatment and the physician's lack of knowledge and skills or the damage caused by the treatment that the patient could not give. This is a situation that occurs as a result of lack of care and errors in medical practice, but also expresses the abuse of duty. It creates an appearance that occurs as a result of the physician not doing the duty properly in the patient-physician relationship.
What Are the Actions That Cause Malpractice?
It is possible to say that malpractice is a medical error. There are actions that will cause this medical error to occur. Some of these actions can be mentioned as diagnostic error, violation of treatment and post-treatment responsibilities, errors for which the health institution and treatment service are responsible, errors that occur as a result of the physician's avoidance of treatment or delay of treatment.
The diagnosis corresponds to the process of recognizing the disease and investigating the findings as a result of the examination of the sick person and the examinations performed on the patient. It is possible to say that there is no definitive diagnosis in medical law. So much so that the diagnosis emerges as an evaluation for the physician to define what the disease is. The diagnosis made by the physician should also be successful. For this, he should act in this way, taking into account his field of expertise and the conditions required by the disease. The important point to be considered here is the diagnosis of physicians. Diagnosis is the first step formed by the knowledge and skills of the doctor and is important for the provision of health care. During the diagnosis process, the treatment plans of the person who is sick may be changed. However, the diagnosis can affect the medical care process positively or negatively. Diagnostic errors are the presence of a missed inaccurate or delayed diagnosis that has been detected by later examinations or by newly emerged findings. Diagnostic errors can cause many important consequences. So much so that due to the diagnostic error, there is an incorrect or delayed diagnosis and the occurrence of unwanted events. It may be possible that a wrong diagnosis made by physicians did not harm the patient. Although this possibility exists, it is also possible that the delayed or missed diagnosis may harm the patient. Preventing diagnostic errors is important for the health system to become more reliable and for patients to have a safer health. Making a diagnosis builds a doctor's knowledge and skills. So much so that doctors have the ability to make a diagnosis with the knowledge and skills they have. The diagnosis of doctors is a condition that determines whether there will be a safe and effective health service. With this diagnosis, the patient's treatment plan changes. Examples of diagnostic errors include some conditions. The fact that the obstetrician made a mistake at the time of delivery because he did not determine the information completely at the time when he made a determination about the valiant pregnancy green is an example of a diagnostic error. After being examined by the doctor in the emergency department of the hospital to which a person who has been involved in a traffic accident has been taken, it is possible to mention that the patient is in a fault if there is a problem that prevents the patient from leaving the hospital after stating that there is no danger to his life and if the patient has died on that day, after the necessary examinations are made, if there is a condition that prevents the patient from exiting. However, the presence of an error in the diagnosis made by the physician reveals his criminal responsibility.
Another of the actions that will cause medical error to occur is the neglect of the obligations after treatment and treatment. The medical doctor must first find a diagnosis related to the patient's disease. In the ongoing process, the treatment process begins with the diagnosis. Malpractice occurs when there are errors to be made by the physician during the treatment process. If there is a malpractice, it is possible to talk about the legal and criminal responsibility of the physician. The treatment expected from the doctor during the treatment process should be done in accordance with the data of medical science. In some cases, although the diagnosis made by the medical doctor is correct, the treatment applied by the physician may be inappropriate or inadequate according to the available medical information. In other words, it may be the case that the diagnosis made by the doctor is correct but the treatment applied is inappropriate. In some cases, the treatment method applied is completely wrong. Medical science always has a self-improving feature. Since medical science has a self-improving feature, the doctor is expected to treat his patients by using new methods. So much so that it is among the obligations of the medical doctor to follow the developments in medical science. In addition to following the developments in the medical department, the medical doctor should use new treatment methods within the treatment methods he plans to do. So much so that it is among the obligations of the medical doctor to use new treatment methods in the treatment methods. It cannot be said that it is considered as a defect that the medical doctor has applied to the patient what he has freely selected from the treatment methods provided that he does not go beyond the scientific and professional limits. As an example of treatment error, we can mention the case of the physician in the Supreme Court decision who treats using a device that is not in his / her field of expertise. As a result of the wrong treatment of the doctor, the patient was left with a fixed trace and wound on his face. The defendant in the case is a maxillofacial surgeon. The defendant applied X-rays to the jaw of the patient he operated on in the hospital where he worked as a maxillofacial surgeon and caused some extreme skin and muscle disorders resembling eczema wounds. As a result of this bad practice, my doctor left fixed and heavy marks on the face of the sick woman. The sick woman applied to the Council of State and as a result a certain amount of compensation was paid to her by the administration. The damage suffered by the administration in the case is related to the recourse. The respondent is a doctor who is a specialist in maxillofacial surgery. The bad situation caused by the doctor occurred outside of his expertise, but in relation to the claim, it occurred from the misuse of the device to which he was authorized. In some cases, especially within the medical profession, although the health council is the expert obliged to report the final and definitive opinion, the report given by the Supreme Council does not correspond to the incident and the results it has produced. In the report, it is stated that the patient's personal desire for reasons within the body is due to his hypersensitivity to rays. However, the specialist physician should take into account in advance whether the patient's personal condition is hypersensitive to rays and make the treatment in a way to eliminate the consequences of these effects. It is not possible for the health council to have adopted that the doctor cannot be held responsible for the consequences of the effect without any examination of the patient's body, personal condition, sensitivity to rays. The specialist doctor is obliged to work in such a way as to eliminate all danger. So much so that if the doctor does not work in such a way as to eliminate all danger, or if he works in this way and produces such a result, he is responsible for it. Therefore, the report of the council is far from scientific. The physician is under the obligation to prove that he / she has fulfilled all the requirements required by the professional knowledge. However, the physician has worked in a specialty other than his own. For this reason, there is a clear and specific personal defect in the case. It is seen that the amount of compensation given by the Council of State is also very appropriate and what is the purchase. Therefore, the recourse decision for non-pecuniary compensation made to the physician was also upheld.
As an example, we can talk about the treatment errors made by the physician and the case of forgetting a 2 meter long gauze during surgery in the body. This is found in a case that is included in the decisions of the Supreme Court. The plaintiff in the suit has agreed with the defendant hospital for kidney surgery. As a result of this agreement, he was hospitalized in this hospital. The operation of the patient, who is the defendant doctor and the plaintiff, has been completed. However, although years have passed since the operation performed by the doctor, the pain of the patient who is the plaintiff has not stopped for many years. Therefore, he underwent surgery for the second time in a hospital due to medical necessity. During this operation, it was revealed that the patient, who was the plaintiff, had forgotten a 2 meter long gas tampon in his body during the first operation procedure. It was determined that the gauze had to be removed. After this situation, the plaintiff who was sick regained his health. The plaintiff, who was ill, demanded the elimination of his financial and non-pecuniary expenses due to this incident. Here, the respondent doctor made a defence by mentioning that the statute of limitations was in question and that there was no intention or negligence. It was contended that the doctor who was the representative of the hospital to whom the plaintiff who was sick had filed the suit, i.e. the doctor who performed the operation, was not the doctor on duty inside the hospital. However, the respondent hospital requested that the case be dismissed on the ground of hostility, arguing that they did not employ the doctor in his capacity as a man-user. Subsequently, the court considered the opinion of the Supreme Medical Council as to whether the doctor had a defect during the operation. He dismissed the suit against both the respondents on the ground that the conditions contained in Section 55 of the Code of Obligations in respect of the hospital did not exist. Article 55 of the Turkish Code of Obligations No. 6098 is not mentioned here. Since this incident was included in an old decision, Article 55 of the Turkish Code of Obligations numbered 818 was mentioned before the Turkish Code of Obligations No. 6098. Article 55 of the old Turkish Code of Obligations No. 818 is related to the liability of employers. A person who has employed others under this article shall be liable for the damage they have done in the course of expressing the services of the persons he has employed and his deeds. They shall not be liable in the event that they prove that they have exercised all due care and diligence in accordance with the specifics of the situation to ensure that such damage does not occur, or that they will not prevent the occurrence of the damage despite having taken care and attention to prevent the damage from occurring. The fact that the person who has been employed has the right to claim against the person who caused the damage is also included in the provisions of Article 55 of the old Turkish Code of Obligations. The Court accepted that the conditions contained in Article 55 did not exist and also dismissed the case for referral to the movement. This decision was made at an early date, taking into account the provisions of the old law. The Supreme Health Council decided in 1975 that it would be possible to confirm that the gauze was forgotten in the body during surgery, even if it was rare. However, he said that this situation is one of the situations that can be seen in major surgeries, so the doctor who performed the first surgery could not be faulted because he left the gauze. The court adopted this decision, which was given the following number of high health, and rejected the decision. In this case, it reveals whether the physician acted in accordance with the requirements of the medical rules or not. So much so that it can be said that the responsibility for defects is a subjective condition. The old Turkish Code of Obligations No. 818 divided the defect into two ways as caste and negligence. A person in negligence does not want an unlawful consequence to occur. However, such a result arose because he did not take the necessary care or precautions to prevent such an unlawful result from occurring. There are two degrees of negligence of the person, provided that they are slightly severe. It can be said that the negligence is severe if the duty of care and precaution is not fulfilled, which can easily be found by every normal and attentive person in the same situation and under the same conditions. The existence of such a separation is important for determining the scope and type of compensation to be undertaken. So much so that the doctor's defects in the field of profession are included in the element of his responsibility, regardless of whether they are light or severe. Medical doctors are under the obligation to show the attention and care that can be undertaken by taking into account not only their professional but also their general life experiences in order not to harm their patients. It occurs when the medical doctor fails to fulfill the obligation of due care and loyalty expected of him or her in any way. Objective measurement is taken as the basis for determining the doctor's defect. The defendant operator doctor in the case forgot the 2 meter long gauze during the operation inside the body of the plaintiff patient. In this case, it is necessary for the doctor to be personally responsible, and this constitutes gross negligence. In medical science, forgetting cannot be tolerated or tolerated, and behavior constitutes a defect. For this reason, there is no need to examine the current incident in front of a specialist. The operating doctor should not be involved in such an incident during the operation, even in his professional but also in his care outside the profession. In other words, this negligence of the doctor is a grave negligence not only in his own profession but also for the event outside his profession. In spite of this situation, the opinion of the Supreme Health Council that it is possible to forget the gauze in the surgery without taking into account the most normal care and attention in relation to the approval in the case is insufficient. This opinion of the Health Council will not be binding on the court. In this case, since the fact that the gauze is forgotten by the doctor in the body is non-contentious, it is necessary to accept the existence of an objective and grave defect of the doctor in the face of clear facts. However, there is no need to have the expert examine whether the doctor is at fault or not. According to the evidence in the file, it is the case that the patient who is the plaintiff went to the hospital of the defendant to undergo the operation and the doctor who is the defendant was called to the hospital to carry out the operation and that this operation was carried out together. In this case, it is perfectly liable that the respondent hospital is responsible. This perfect responsibility is related to Article 55 of the old Turkish Code of Obligations No. 818. In addition, Article 66 of the new Turkish Code of Obligations No. 6098 contains provisions corresponding to the old law. Since what is mentioned here is contained in an old decision, the provisions of the old law are mentioned. The patient, who is the plaintiff, is hospitalized in the defendant hospital and his relationship with the other defendant doctor is changed. So much so that the doctor now takes care of the sick person as an employee of the hospital. In such a case, the legal relationship with the doctor turns into the legal relationship with the hospital. As a result, the hospital is liable to the plaintiff patient for the doctor's failure to exercise due diligence and negligence. This is because the defendant is required to perform all the procedures required by the medicine within his hospital of the debt incurred by the hospital in accordance with the medical rules. You can get more detailed information by contacting an Istanbul malpractice lawyer.
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In this decision, the hospital employing the doctor was found to be at fault for the damage suffered by the patient. And this decision was examined on the basis of the old Turkish Code of Obligations No. 818.
We talked about examples of violations of the medical doctor's obligations in the treatment and after treatment and the decisions about these examples. Another of the actions that cause malpractice is errors that are related to the organization of the medical institution and the treatment service. There is bloody coal in relation to which medical equipment should be included in health institutions or which personnel should be present. One of the laws containing provisions regarding health institutions is the Law No. 2219 on Private Hospitals. In this law numbered 2219, the regulations made regarding private hospitals are included. First of all, it is possible to talk about the provisions regarding the conditions under which it will be possible to open private hospitals. Private hospitals include patients who are hospitalized differently from the official hospitals of the state and from the private administrations and municipal hospitals. The health dormitories that have been opened and will be opened for the purpose of treating these patients or feeding the people who have had a new disease in sanitary conditions until they speak to their old strength again and providing maternity benefits are private hospitals. These hospitals have conditions for opening, using and closing. In these conditions, it is included in the private hospital law numbered 2219. Persons who are private companies and contractors in accordance with the provisions contained in their own legislation, as well as persons who employ many workers in factories and trade, agriculture, arts and nefiye works, as well as labor unions and other persons like this, will be opened by thanks to the hospital infirmary to be opened for the purpose of treating the diseases of their workers and the men they have used in their own work and for the purpose of protecting the health of these employees; and other health dormitories are not bound by the provisions of the Private Hospitals Act. The conditions that relate to the opening and closing of such places are made in accordance with the provisions of their own law. In the opening of these places, the organizations to which they are affiliated shall notify the health and welfare auxiliary powers of attorney with the declaration. So much so that for the opening of hospitals, the permission of the health and social auxiliary power of attorney is required. In order for the permission to be granted, the responsible directors of the hospitals belonging to the individuals and the entities to which the other hospitals are affiliated must give their authority to the Governor. The location of the hospital to be opened in the resignation, the characteristics of the hospital structures, which patients they will accept, how many paid patients they will treat, how many free patients the number of beds to be placed in the hospital, the name of the responsible manager responsible for hospital affairs, the amount of money required for the establishment and operation of the hospital should be clearly written. However, the Documents we will count are also connected to this will. One of these documents is the one showing the outbuildings to be built for the hospital and the condition of the building, two maps showing the four sides and the arrangement of the sewers of the waterways of the site. Another document shows two separate plans for each floor that will include the outbuildings to be built in the hospital and the interior parts and installation of the building. The other Vesika includes two comprehensive reports that will show all the arrangements and equipment to be carried out in the hospital. In addition, the document showing the existence of the capital required for the establishment and operation of the hospital to be opened and the amount of this capital is included in the Documents we have mentioned. So much so that these are the provisions related to the establishment of the hospital included in the private hospitals law no. 2219. However, the type of hospital, the size of this hospital according to the size of the hospital and the dimensions of the health service should be provided are also included in these provisions. The part of the hospital management is primarily responsible for the medical intervention that takes place within the hospital. Sufficient specialists must be available within the hospital as necessary to diagnose and treat the disease that patients have. In addition, the operating room equipped with technical devices to ensure the treatment of patients and such necessary equipment should be in the hospital. The hospital must meet any need to provide the necessary service. In other words, it should have all the necessary equipment in its body. You can get more detailed information by contacting an Istanbul malpractice lawyer.
What Are the Differences Between Malpractice and Complication?
Two of the concepts that are important in health law are malpractice and complication. While the responsibility of health workers is mentioned when it comes to malpractice, it is accepted that health workers cannot be held responsible when it comes to complications. So much so that the important concept here is to distinguish between malpractice and complication. People interested in medical science tend to regard a medical intervention as a complication if it has foreseeable consequences. However, instead of accepting the predictable results of a medical intervention performed by physicians as complications, lawyers talk about complications according to whether it is possible to impose the current situation on the person who is a health worker. Thus, it is important to distinguish whether the fault can be attributed to the physician or not. Within health law, the responsibilities of physicians are a defect-based responsibility. Therefore, in order for a physician to be held responsible for an intervention, he must have performed a defective intervention. However, if the physician does not have any fault, he cannot be held responsible for the result. The result that may arise in the medical intervention performed on the patients is not certain. In other words, although all the necessary precautions have been taken in the intervention and the application has been done correctly, it is possible to reach a negative result. Despite the fact that the medical doctor has shown all the necessary care and attention, these negative results constitute the risks of medical interventions made by physicians. The fact that different results have emerged in the medical interventions performed by physicians is due to the fact that each individual's situation is unique. In other words, although the same doctor performs the same intervention on two people with the same disease in the same event, the interventions made to these two people may produce different results. It is not possible to say that these results depend on the physician. The reason why these results are different is that people react differently to interventions. So much so that it is possible to say that medical science has uncertainties. The conclusions drawn in this section are not conclusive. Although the intervention performed by the doctor carries all the precautions, it is not possible to guarantee a positive result. Since there is such a situation, it cannot be said that the hospital and the physician who have acted in accordance with the requirements and rules of medicine and are responsible for the negative consequences that arise as a result of this behavior.
An important concept that needs to be mentioned here is the concept of installment. The reason why the taxi is mentioned is that the medical doctor is found to be defective when he does not take the necessary care. The definition of installment is included in the Turkish Criminal Code No. 5237. Culpability is when an act is committed in violation of the duty of care and attention by reason of the failure to foresee the outcome as specified in the statutory definition of the offense. Thus, it is the case that the perpetrator did not foresee an outcome that could have been foreseen. However, the installment also occurs if the perpetrator has foreseen the outcome but has not wanted this situation. The concept of taxidermy is different from the concept of caste. That is why the taxi must be deliberately separated. In the case of caste, the result is demanded by the perpetrator. In other words, when the perpetrator commits the crime deliberately, he wants the result to occur by committing the crime. In the case of a taxidermy, the perpetrator does not want the result. However, in the installment, the perpetrator does not want the result but knows the foresight of the result. In the case of negligence, the net violates the duty of care imposed on it as a result of the realization of the result it has foreseen. Thus the existence of its defect is in question. In cases where the result is not foreseeable, there is no liability for negligence. In other words, if the faik cannot see the result, it cannot be said that the perpetrator is responsible for the result here. In addition, although the result is foreseeable, it is not possible to impose a responsibility on the perpetrator for the result in cases where there is no defect that can be attributed to the perpetrator.
Complication is the damage that has occurred despite the appropriate intervention within the medical standard and has been accepted by the medical community and inevitably occurred despite the fact that all the necessary precautions have been taken. It is not possible to hold the medical doctor responsible for an outcome that no one could have foreseen. Even in cases where the intervention of the physician does not comply with medical standards, if the result is not foreseeable, it is not possible to hold the physician responsible.
It is important to mention the information about the responsibility of physicians due to complications. Because it affects the outcome of the event that the physician cannot be held responsible for the situations that have occurred as a result of the complication. So much so that the medical doctor can only be held responsible for the mistake he has made. Complication is not a concept for which the physician is held responsible in criminal law. For example, even if an operation performed has not given a good result expected by the doctors, if an intervention in accordance with the accepted rules of medical science is performed by the doctor, the doctor is not at fault and cannot be said to be responsible for the result.
However, if the complication is not noticed in time and if the necessary precautions are not taken even though it has been noticed, or if the complication has been noticed and precautions have been taken but it is not possible to evaluate these measures within the established standard medicine and intervention, the complication cannot be mentioned here. As we said, the physician cannot be held responsible for the complication. However, if the complication is not well managed, liability arises. Thus, physicians have an obligation to take precautions against the complications that can be foreseen for the patient. If these precautions have been taken and the medical doctor cannot be attributed a defect for this reason, it can be said that the complication management has been done successfully. If the necessary precautions were not taken by the physician and if these precautions were delayed, success in the production of complications was not achieved. In such a case, the complication turns into malpractice. In other words, the result of the incident is not related to the duty of care that the physician should show and the precautions to be taken. As a result of the intervention made by the medical doctor, a complication occurred. However, if this complication is not well managed by the physician, that is, if the necessary precautions are not taken during the complication process and the measures to be taken are delayed, the complication turns into malpractice.
Referring to a real event in relation to the complication helps to understand the issue. The incident is contained in the plaintiff's claim for damages for the damage suffered by the defendant due to the fact that the chimney did not heal after the treatment in a different hospital and he underwent surgery for the second time in a different hospital. In him, the deputy is not under the obligation of care like a worker in the course of performing his work, but is responsible for even the slightest defect attributable to him. The medical doctor is also under the obligation to make an accurate diagnosis of the disease without delay within the medically necessary time. However, the medical doctor should take his precautions completely without delay. The patient should determine the most appropriate treatment required by the current condition without delay and start to apply. If the medical doctor has acted in accordance with the rules required by medicine but the result has not changed, it cannot be said that the medical doctor is responsible for this. It should be mentioned here that in the decision of 2002, it was said that the Supreme Health Council was an expert to whom the criminal courts had to apply. However, it was also said that the supreme health council was not the official expert within the civil courts and that the Civil Court was not bound by its report if it had applied to the higher health council. In this case, the plaintiff suffered a broken leg as a result of a traffic accident. He was then taken to the hospital and from there he was transferred to the respondent hospital at his own request. The plaintiff was operated upon by performing the examinations of the plaintiff in the defendant hospital. However, he was discharged four days after his surgery and his treatment was continued with medication. Thereafter, the plaintiff was gone many times due to the fact that the person had discharge in his leg and could not recover, and the patient's warnings were not taken into consideration in the defendant hospital. After the examination of another doctor to whom the plaintiff patient had gone, it was determined that the patient's leg was not good because of the mistake in the previous surgery and the short platinum inserted into the patient. He was then re-operated and due to the previous wrong surgery and treatment, the patient's leg was amputated and he was six inches shorter. The patient, who is the plaintiff, requested that the disability rate be determined together with these claims and requested that the expenses he incurred due to the second surgery be collected from the defendants severally. However, the respondent company claimed that the surgery and treatment carried out within its own hospitals was successful. However, they said that it was not their fault that the plaintiff did not show the necessary care and attention after discharge and requested the dismissal of the case. It is understood within the scope of the file that the patient, who is the plaintiff, went first with a broken leg in a traffic accident, that he was operated on in the hospital and that platinum was inserted into his leg and then he underwent a second operation with the failure of the leg to heal. The reason why the patient, who is the plaintiff, filed the lawsuit is that the first surgery and treatment were performed defectively. Thus, the plaintiff Hassan should be operated on for the second time and the patient should be shortened by cutting the chimney and it is necessary to determine whether the operation and treatment performed in the hospital owned by the defendant company to which the patient filed the suit was performed in accordance with the requirements of medicine. In addition, it should be determined whether there is a doctor's error in the incident. It is possible to call the relationship between the parties as the proxy relationship. The suit was filed by the plaintiff for breach of his private debt. The person who is a surrogate is under the obligation to take care like a worker while doing his job. Together they become responsible for even the slightest defect. The doctor must make the correct diagnosis about the disease from a medical point of view in a timely manner and without delay. Take the measures related to the treatment in a complete manner without delay. The pilgrim doctor should determine and apply the most appropriate treatment required by the event without delay. Despite all this, if the result has not changed with the treatment of the requirements of the medicine in accordance with the rules, the doctor is not responsible for this. In the 2001 report of the Supreme Health Council, which the Court had awakened, it was stated that the operation performed within the evaluation of the information and findings in the file where the occurrence of the incident and the treatment applied were explained and that the postoperative infection was a complication expected to occur and that the hospital and the doctors in charge were perfect for these reasons. In the report, the explanations about whether the diagnosis and treatment methods were applied in accordance with the requirements and rules of medicine in the fracture included in the concrete incident and whether the doctor took care in line with the principles explained in this regard and whether the situations to be done and what was done matched were not included in the report. Therefore, the report issued by the Supreme Health Council is not sufficient and does not constitute a basis for judgment. In addition, although the Supreme Health Council is an expert who is obliged to be consulted, it does not take place as an official expert in the courts of law. Therefore, if the court has applied to the Supreme Health Council, it will not be bound by its report. Here, the expert committee or the forensic medicine board to be formed by the experts in the field of work done by the court should be done according to the principles stated above and what was done should be done in the light of the rules and the reasons showing whether there is a doctor's error in it or not, provided that the explanatory parties receive a report suitable for the supervision of the court or the Court of Cassation. Since the result is erroneous in the case of incomplete examination and inadequate expert report, the verdict in writing constitutes a violation of procedure and law in the establishment and therefore requires quashing. As a result of this case, the Court of Cassation decided to overturn it.
As stated in the decision, if the result does not change as long as the requirements and rules of medicine are acted upon, the doctor cannot be expected to be held responsible for this. So much so that it is the complication mentioned here. In the decision, it was stated that if an infection develops after the surgery, this infection is an expected infection and therefore the hospital and the doctors in charge are flawless. As mentioned in the land, if the necessary rules are followed, the diagnosis and treatment methods are done as required and no negligence is found, the infection that develops after the operation constitutes a complication. The negative result of this complication cannot be attributed to the hospital and the doctors in charge.
The physician's neglect of the duty of care generally occurs in three ways. So much so that they arise in the field of treatment of the patient himself, in the enlightenment of the patient, in the field of clinical organization. All these violations that occur constitute malpractice. However, malpractice is the result of causing harm as a result of misconduct or neglect of duty. If the physician shows failure while performing the standard treatment of the patient and causes harm due to incompetence or negligence, malpractice is mentioned here. When it comes to malpractice, the physician's responsibility arises. The fact that the physician is responsible also arises from the fact that he did not intervene correctly in the situation that could have been foreseen and prevented. It should be added here that medicine is a risky profession. Each intervention performed by a physician has its own risks. There are also deviations from these interventions. There are many bad results that can be achieved due to the medical interventions made by physicians. It is also not possible to hold physicians responsible for every outcome that may occur. Physicians perform their profession within the framework of permissible risk. The permissible risk corresponds to the complication. In other words, the physician cannot be expected to be held responsible for the complication. The complication is that the medical intervention performed by the physician does not give a positive result no matter how successful it is. However, unlike complications in malpractice, the negative result of the physician's intervention is based on his own fault. Therefore, the complication alone does not constitute a defect. Here, the distinction between complication and malpractice should be made well. In this regard, it is important to determine the forms of malpractice thoroughly and to determine whether the physician's fault is present as a result of medical interventions. We can see that in the doctor's mistakes, negligent actions take place. The finding of fault on the part of medical doctors by negligent action arises from the fact that although it is possible for medical doctors to exercise due diligence according to their own personal skills and professional knowledge, they have not exercised this care. In the case of malpractice, and when this occurs in court, the Judge or another lawyer needs the knowledge of an expert to make a determination about malpractice. The expert is more involved in the practice as a forensic medicine institution. In addition, faculty members in the relevant departments of universities can also serve as expert witnesses in malpractice cases. In order to determine whether the medical doctor is at fault or not, an examination must be carried out by an expert committee consisting of experts. There is an obligation to appeal to the opinions of the Forensic Medicine Assembly. Thus, in malpractice cases, the determination of the situation, that is, the determination of whether the medical intervention made by the medical doctor is faulty or not, should be done by the people who perform the medical profession. For malpractice compensation cases , you can get support from our law office specialized in health law cases in Izmir.
Distinction between Malpractice and Complication
The distinction between complication and malpractice is important in terms of health law. People who are sick should be told about the harmful consequences that have been foreseen or predicted by the doctor they go to. In order for the medical intervention to be performed by the doctor in accordance with the law, the patient must allow this practice during medical practice and knowing the consequences that may arise as a result of medical practice. Medical interventions on patients have risks. Medical interventions to be performed by medical doctors on patients should be carried out by considering the risks that exist in medical practice. Risks that are known to occur or are likely to occur are not an obstacle if there is an intervention that is significantly in the patient's best interest. In order for the physician to be responsible for the complication, he must not have informed the patient about the complication and should not have obtained the consent of the patient in accordance with the law. It may not be possible for the doctor to have reported all the complications of the intervention to be performed on the patient. However, complications that are likely to occur according to the condition of the person who is sick should be reported to the person. The medical doctor shall not be responsible for the circumstances in which the person who is previously ill has been duly notified and accepted by the patient, which is possible to be foreseen within the medical interventions but whose condition is not possible at noon. In order to be able to talk about the responsibility of the physician, he must find the faulty malpractice. In the cases that arise as a result of medical intervention, an investigation should be made about what the physician's fault is and it should be stated whether the result is malpractice or complication. For this, the relevant persons should carry out a research in this direction.
If there is a situation that cannot be foreseen and prevented, we cannot talk about the emergence of a responsibility due to this situation. However, if there is a situation that can be foreseen but cannot be prevented, we cannot say that a responsibility will arise here either. This condition corresponds to the complication. Complication is the consequences that can be killed by the physician within the medical intervention but cannot be prevented. The physician is not responsible for these results. However, there are some conditions in order for the physician not to be a problem from the complication. In order for the doctor not to be responsible for the complication, the patient must be informed and consented to the negative result. It is among the conditions that the result does not cause the physician a defective actual damage. In some cases, it may also be the case that the complication turns into malpractice. For example, the doctor shall not be responsible for a complication when a complication arises after performing a medical intervention, provided that he obtains the consent of the patient by applying all necessary precautions to the patient and informing the patient of possible complications. However, if there is a defect in the management of complications after the complication, the responsibility may arise. The responsibility of the physician who exhibits a negligent behavior in the face of the complication and does not take the necessary precautions and does not do the things that can be done arises due to the failure to manage the complication correctly. Here, the complication turns into malpractice. Liability arises as a result of a situation that can be foreseen and prevented. Here is malpractice. If the physician has the opportunity to predict and prevent the outcome, he is responsible for the outcome. You can get more detailed information by contacting an Istanbul malpractice lawyer.
In malpractice cases, the court makes use of the expert witness as to whether the result is most likely to be seen. Thus, it is determined whether the physician has a defect or not. If another physician in the same conditions as the physician foresees the result by paying attention to some issues and prevents the situation that will arise by taking some precautions, it is determined that the physician who performs the intervention is defective.
Seeing the distinction between complication and malpractice in a decision is important to make the distinction. The case included in the judgment relates to the conviction of the accused person for the crime of culpable homicide. However, this verdict is being appealed by the defendant's counsel. The person accused in the case works as a family physician. The defendant, who was working as a family physician and was on emergency duty at the time of the incident, was working in a nursing home. An 18-month-old baby was taken to the state hospital with complaints of diarrhea, fever and vomiting. After the baby was examined, he was sent home with a prescription. Due to the continuation of the baby's complaints, the family applied to the hospital again, where the family was advised to apply to a different hospital. The baby's family applied to the nursing home for the baby. As a result of the treatment and examinations performed here, the prescription was issued and sent to the baby home. When the baby's family took the baby to Isparta for treatment the next day, the baby died on the way. He was denied permission to investigate the accused in the investigation due to Law No. 4483 on the Trial of Civil Servants and Other Public Officials. The decision not to grant permission to investigate was lifted by the administrative judicial authority to stand trial for the crime of culpable homicide on the ground that the investigation against the accused included in the decision was subject to the provisions of Law No. 4483 on the Trial of Civil Servants and Other Public Officials. In the report prepared by the specialized board, it was stated that the data recorded in the medical documents and the findings determined in the autopsy revealed that the cause of death of the child was acute gastroenteritis, dehydration and complications. Although it was medically known that the symptoms such as diarrhea and vomiting present in the infant period would cause a rapid deterioration in the general condition of the child and that the eyeballs were in a dehydrated state with the deterioration of the skin turgur tone in the bus, the baby was sent by referral. Here, the fact that no follow-up is taken by hospitalization in the nursing home and that the treatment has been started constitutes a deficiency. In the report prepared by the department of the medical faculty, it was stated that the medication recommendation made for the baby, the information about the disease and the call for outpatient control were in accordance with the medical rules and that the procedures carried out by the accused did not have a causal link with the death and a contradiction emerged between the two reports. In the report prepared by the General Assembly, it was determined that the deceased baby died as a result of complications. He testified that the defendant had examined the baby with the statement that he had been taken to the hospital twice in two days due to vomiting and 10:15 a.m. diarrhea. However, the fact that the infant was not monitored by hospitalization and that treatment for dehydration was not started was a deficiency, but if the appropriate treatment had been started by using witnesses because it was medically known that gastroenteritis in infancy could progress rapidly and cause death, the rescue of the baby was not certain. However, if an appropriate treatment had been started with the correct diagnosis, the department would have been considered as a complication even though death occurred. It is understood that if there is a link between the acceptance that no medical intervention constitutes a guarantee and the resulting death, treatment and deficiency in diagnosis, it should be treated as malpractice and not as a complication, so there was no inaccuracy in accepting it by the court. It is understood that the finding that the rescue of the baby was not certain would not lead to a change in the malpractice fact and that it was not possible to accept a situation that would prevent the accused person from being held responsible for the death that occurred. According to the scope of the file examined together with the evidence gathered and shown at the place of decision together with the court's discretion formed in accordance with the results of the prosecution, the appeals of the accused and the defense counsel were rejected. As a result of this incident, the defendant was awarded compensation. You can get more detailed information by contacting an Istanbul malpractice lawyer.
The situation that should be considered here is that if there is a link between the death that occurred in the event and the deficiency in the treatment and diagnosis made by the physician, this cannot be considered as a complication. In other words, in the presence of such a situation, it is considered as malpractice. The aforementioned situation in the land does not prevent malpractice either. In other words, the finding that the rescue of the baby is not certain does not change the phenomenon of malpractice. When there is a nexus between the resulting death and the deficiency in treatment and diagnosis, the accused is charged with responsibility. In such a case, there is no circumstance that would prevent the accused from being held responsible.
Offence of Neglect of Duty in Malpractice
In cases where there is a medical error, there may be the existence of a crime of negligence of duty committed by the doctor. In addition to the crime of negligence of duty, the crime of culpable homicide can also be faced in cases where medical error exists.
Giving an example of a verdict that includes the crime of neglect of duty and the crime of culpable homicide allows to see its place in malpractice. In the case given in the decision, the doctor is the defendant. Whether there is a causal link between the doctor's action and the result of the death that occurred is included in the decision. However, the decision concerns the determination of whether the doctor's action constitutes the crime of causing the death of a person by negligence under Article 85 of the Turkish Penal Code or the crime of negligence of duty under Article 257 of the Turkish Penal Code. In the incident contained in the verdict, the truck driven by the defendant, who was outside the investigation, came to the exit of the intersection and hit the 76-year-old pedestrian who was on the road to cross the road from the right side. He was then brought to the emergency room of the state hospital at the age of 76 or tomorrow. The first intervention to the 76-year-old pedestrian was carried out by the defendant, who was the doctor on duty. The doctor on duty has decided to take X-rays, put a version on you and make dressings for the open wounds on the patient. The accused doctor discharged the 76-year-old patient, who complained of my pain and vomited once with it, after running out of serum. The 76-year-old patient was put into the vehicle by his relatives by holding my feet by the shoulder. Then the tour was taken home. After the patient went home, he lost consciousness and was brought back to the hospital. Despite the interventions made by the accused on-call doctor, the patient died. The report of the Forensic Medicine Institute includes the cause of the patient's death. The patient's death occurred as a result of ribs, hips, skull, collarbone fractures due to a traffic accident, as well as injuries to his internal organs and the resulting confusion. According to the report, it is understood that the accused doctor was at fault because he did not comply with the medical requirements, but the decision of the high medical council that these defects of the accused doctor did not cut the illicit link between the accident and the death and the failure to detect the fractures were deficiencies. However, considering the severity of the traumatic changes detected in the person and the age of the person who is sick, it is stated in the report of the forensic medicine institution that even if the patient was detected in time and the appropriate treatment was initiated, it was not certain that he would be saved. The causal link as a result of the death caused by the behavior of the accused doctor cannot be determined with certainty. Therefore, in view of the provisions contained in the Emergency Medical Services Ordinance, the doctor who has been accused of general body trauma and multiple bone fractures must be kept under observation for 24 hours and until it is possible to ensure stabilization of the deceased or to send him to a different health facility. It is alleged that the accused doctor showed negligence in fulfilling the requirements of his duty by discharging the deceased at the end of 5 hours and sending the deceased home, and as a result, this action was carried out in accordance with Article 257 of the Turkish Criminal Code. It is the case that it constitutes the offence of negligence of duty in the clause. However, while the conviction of the person for the crime of negligence of duty in the Turkish penal code should be decided in the decision, without taking this situation into consideration, the act of the accused doctor is accepted as the crime of causing the death of the person in a negligent manner and the decision to punish the person for the crime of negligent killing in Article 85 of the Turkish Criminal Code No. 5237 is inaccurate.
In order to be able to speak of the offence of negligence of duty, it is not sufficient that negligence or delay has been shown in the performance of the duty. Thus, the negligence of the act alone in performing the requirements of the duty is caused by the victimization of the persons or the harm of the public as a result of this act or the provision of an unfair advantage to the persons. In order for the crime of negligence of duty to be possible, the victimization of the person who is the result of the act or the occurrence of public harm or the provision of an unfair advantage is a must. Therefore, it is accepted that if a behavior that violates the requirements of the duty has certain conditions, it may be possible to establish the crime of misconduct. In such a case, if the behavior that contradicts the requirements of public duty causes the victimization of other persons or results in economic damage to the public or provides an unfair gain to the persons, the crime of misconduct occurs. The fact that is the subject of the decision is the fact of death that is necessary to establish that the defendant, who is a doctor who has no involvement in the traffic accident and the injury of the deceased as a result, is responsible under Article 257 of Law No. 5237. In the decision, it was ruled that the defendant, who was the doctor on duty, had acted negligently, however, it was requested that the defendant, who was the doctor on duty, be punished for the crime of negligence of duty. However, it was accepted that a link between negligent conduct and death had been found. There is a contradiction in this decision. The reason for this is that in the judgment which has stated that there is no illicit link between the act of the on-duty doctor who is the accused in respect of the offence of causing death by negligence and the result, it can be said that a nexus has been established between the act and the result in respect of the offence of negligence of duty. The determination of the bond of province is important here. In the Turkish Penal Code No. 5237, there are no provisions regarding the bond of province. The reason why there are no provisions in the law is to pave the way for the resolution of the situations related to the bond of province with legal doctrine and practice. Thus, it is the legal theory and practice to determine what the content of the bond of province is. The bond of substantiality is determined by the Judge according to the specific circumstances of the present case. The opinion of the technical expert is valuable. However, it alone is not sufficient in determining the presence or absence of a provincial bond. For this reason, it cannot be said that it is correct to determine a fixed method for determining the link of provinciality, or to accept a general proposition. However, when making the determination, the technical expert interprets the report with the objective reasoning made by the judge. He then reaches a legal judgment as to whether the action is conducive to giving rise to the result. Thus, it is seen appropriate to punish the doctor who has been found to be seriously at fault in relation to the patient whose rescue is not certain despite the appropriate treatment being applied. In this case, although the bond of province is natural, it also has a legal character. It was concluded that even if the doctor involved in the decision, who was stated to be at fault, had acted in accordance with his obligations, it was not certain that this person who had been brought to the hospital as a result of the accident and who had been saved in view of the gravity and age of the traumatic changes identified. The report contained in the verdict does not definitively explain whether there was a nexus between the act of the accused doctor and the death. The decision was brought only by the determination of facts and probabilities and avoided stating a definite opinion. It was observed that the deficiencies in the intervention of the doctor, who was the accused in the incident, were intense in relation to the injustice of the doctor. The doctor who has used you has opened up to the extent of the error and defect in the situation that he is likely to encounter in the course of the performance of his professional duty. So much so that the fractures that have not been detected in the patient are not just one or two. Many fractures in the patient's body have not been identified by the accused doctor. It is predictable by any person of average intelligence and experience that the gravity of the damage that can occur on the body of a 76-year-old who has been in a traffic accident is of a cause for concern. In addition to not having this concern, the accused doctor did not fulfill the requirements of his professional knowledge and obligations to perform certain behaviors and did not give his patient the necessary care. Therefore, when the technical expert report and the circumstances of the incident in the verdict are considered together, it is accepted that there is a nexus between the action of the accused doctor and the result. Another circumstance that needs to be examined here is whether the behavior of the accused doctor was deliberate or negligent. Whether the act of the accused doctor was deliberate or negligent is important in the verdict. The crime regulated in Article 257 of the Turkish Criminal Code No. 5237 is a crime that can be committed with caste. So much so that the negligent act must be carried out knowingly and willfully by the perpetrator. In practice, due to negligent behavior, there is sometimes confusion between the negligent act. The following can be said about negligent behavior that can be carried out intentionally. The mayor, who has knowingly and willingly failed to comply with the letter sent by the executive department for the purpose of deduction of salary, can be said for this situation. However, the fact that the judge and the public prosecutor, who did not knowingly and willingly write the reasoned decisions of the accountant for a long time, knowingly and willingly left the investigation file inactive for two years is an example of this situation. In the case given in the decision, the death situation occurred as a result of the deliberate and willful neglect of the duty of the physician in the position of the accused. Here, this person is not liable for the crime of neglect of duty, but only for the punishment specified in Article 83 of the Turkish Criminal Code No. 5237. It is useful to mention the provisions described in Article 257 of the Turkish Criminal Code No. 5237 for this situation. If the person is killed or injured as a result of the negligence of the obligor connected with his duty, then there is no punishment for the crime of misconduct. Thus, it must be accepted here that the crime of killing or wounding committed by negligent conduct has occurred. In this case, it is not possible to speak of the fact that the accused doctor knowingly and willfully did not give the necessary intervention to the deceased in view of the case given in the judgment. Here it would not be appropriate for the High Chamber to hold that the accused doctor had acted deliberately. The case of the accused doctor consists of his failure to pay due attention to the medical data concerning his patient. You can get more detailed information by contacting an Istanbul malpractice lawyer.
There are some things that need to be said about this incident as a result of a subsequent re-evaluation. The fact that the accused doctor sent the deceased who had suffered bone defect home until he was stabilized and kept under observation for 24 hours, which was accepted in the medical community, or by discharge him at the end of 5 hours at the place where this person should have been referred to another health institution, leads to the conclusion that the accused doctor showed negligence in fulfilling the requirements of his duty. This situation constituted the crime of negligence of duty regulated in Article 257 of the Turkish Criminal Code No. 5237 and it is not correct to make a decision to punish the accused doctor in accordance with Article 85 of the Turkish Criminal Code No. 5237 by accepting the crime of causing the death of a person by installment without taking into consideration that his conviction should have been decided for this crime.
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Responsibility of the Hospital in Malpractice
Hospitals are also responsible for the damages suffered by patients. The hospital is under the obligation to compensate the patients for the damage for which it is responsible. So much so that it is possible for patients to claim financial and non-pecuniary compensation for their damages. Seeing a decision in which the responsibility of the hospital is at stake will make the situation concrete. In the case related to this issue, the death of the patient occurred as a result of the blood carrying the hepatitis be virus being given to the person who was sick. In the case, financial and non-pecuniary compensation is demanded for the death of the patient due to this reason. In the expert examination conducted by the Court, the value in the donor is low in the opinion given by the head of the department of internal medicine from the members of the expert panel. There is a finding that the blood given is contagious. Due to the one-time nature of the preferred materials, it was not possible for the disease to be transmitted from the materials used in the hospital. It is possible to transmit the virus through sexual intercourse, drug use, barber supplies, etc., but considering that the person who is sick is an 84-year-old woman, these possibilities are unlikely. It is strongly stated that the hepatitis picture of the person who is sick is probably caused by the infectious-carrying blood that has been given. In addition to these, in the same report, it is stated that it is possible to detect hepatitis disease with further examinations, provided that it is not required by the Ministry of Health's regulation on blood transfusion. It is clear that the hospital in the position of the respondent has carried out the tests required to be carried out by the Ministry of Health in relation to the blood donated by the donors while using its own blood tank and even if the results are that the blood is not a carrier, it is possible to detect the virus with advanced examinations that have much less margin of error technologically in the expert report received. However, in the re-examination of the deceased's condition, it was determined that the donor was carrying the virus thanks to these tests. While it is possible to obtain blood from blood centers that have been established and operated in accordance with the legal procedure and that provide data donation and transplantation by working within the control mechanism, the hospital in the position of the respondent that supplies blood from the system established by it must have shown the highest level of care and attention, even if it is for the purpose of faster intervention to the patient. While the contagion related to the disease that may cause death has been found in the blood given to the person who is sick, the hospital in the defendant institution must prove that the disease is transmitted by another way and not from this blood. However, due to the scope of the file, this situation could not be determined. That being the case, it is contrary to procedure and law for the court to decide to dismiss the original and consolidated suit in respect of the respondent hospital on the ground that it is not possible to determine the exact link of the province. Therefore, it was necessary to quash the judgment rendered. At the end of the proceedings held on account of the pecuniary and non-pecuniary damages cases which had been consolidated between the parties, the decisions of the court regarding the dismissal of the original and consolidated suit were quashed as a result of the examination conducted by the Court of Cassation on the basis of the counsel for the plaintiffs. There was resistance by the court against the decision to quash the special chamber. The decision to resist was appealed by the counsel for the original and consolidated plaintiffs. After examining the documents in the file by the General Assembly of Law, the necessity was considered. It is possible to mention the plaintiff's claim in relation to the proceedings proceedings. Counsel for the plaintiffs has mentioned some circumstances in the petition. It is the case that the mother of the other clients was taken to the hospital of the respondent to suffer a heart attack. After several months of drug treatment carried out by the defendant doctor, the decision was taken to operate. The second blood, which they later learned was unlicensed and which had been procured from the blood centre operated by the respondent hospital, was given to the patient prior to the operation of the operation. In this way, the patient who was discharged after the stent was inserted was admitted to the defendant hospital again in the following month with swelling and pain in his knees. When it was said that there was no space in the hospital, the patient went to a different hospital and it was determined that he was infected with the hepatitis-b virus. Although there was a 48-day treatment period, the patient could not be saved and died. With the diagnosis of hepatitis-B, all members of the family have been tested. However, none of the family members were found to have the virus. Despite the financial burden imposed on the client so as not to risk his health and to ensure that he was cared for better, the defendant preferred him to the hospital. It is the case that the defendants, who, despite being under the obligation to act prudently or diligently, gave the blood carrying the virus and made the patient with an old body unable to fight the disease and caused the elderly patient to spend the last days of his life in pain in the hospital, did not value human life. Defendants have failed to make the necessary examinations and are sloppy acts. In addition, they illegally established a blood center and sold products. Lawsuits must be held liable for damages arising as a result of these culpable acts. A complaint was lodged with the Public Prosecutor's Office in relation to the matter. An investigation was carried out by the Chief Public Prosecutor's Office, but the Prosecutor's Office decided not to prosecute without conducting an investigation into the illegal blood center. It is stated that even in the examination report of the provincial health directorate shown in the decision of non-prosecution given by the prosecutor's office, the responsible director was warned because the hospital in the position of the defendant did not have the authority to open a blood center and sell blood products. It has been said that the concept of malpractice in medicine can be defined as faulty treatment or medical negligence. In Article 13, which is included in the ethical principles of the Turkic Union, it is stated that the bad practice of medicine is the harm of a patient due to inexperience or apathy. It is the case that physicians and health institutions are also unwavering in the established judgment that they are liable for even the slightest defects. As a result of all the events that took place, it was claimed that the clients had collapsed both physically and emotionally and demanded financial and non-pecuniary damages, and the case that was opened was combined in the file.
There are answers in the cases included in the decision.
The counsel for the respondent hospital contended that there was no fault which could have been attributed to his client for any other good. The blood taken from the doner was tested for hepatitis-B surface antigen and as a result of this, the test gave a negative result and was found suitable for transfusion and was said to be stored. He contended that the claim that the plaintiff had processed the incomplete examinations because of the provision of the mandatory examinations prescribed by the Ministry of Health was not true. On the relevant date, the deceased's condition was reported and both donors were recalled and tested. However, the results were still negative. Not only with this result, PCR testing was also performed upon the investigation of the DNA of the virus. Then the same conclusion was reached. According to the results obtained, it was understood that the virus was not transmitted through the blood from the donors to the person who was sick. It has been said that the hepatitis be virus can pass through the skin or mucus membranes not only with blood transfusions but also with close interpersonal relationship. In view of the fact that more than three months had elapsed since the blood transfusion had been carried out, it was contended that it was possible that the mus had been transmitted by other means, that there was no sale of injured blood inside the hospitals and that no fee was charged to the plaintiffs. According to the current general income of the Ministry of Health, the blood taken from the relatives of the patients was used by passing the tests. It was said that in the report of the forensic medicine institution received in the criminal investigation file in relation to the doctors in the position of the respondent, it was said that the very low level of positive of the person who returned during the examination of the Provincial Health Directorate could not be considered as an absolute positive. Therefore, it was said that it was considered that it would not be possible to determine whether the virus that caused the death of the person was transmitted with the blood taken from the donor. In this case, the counsel for the respondent argued that his client was not responsible and that the cause of death of the patient could not be determined because the autopsy had not been performed. As a result of the statements he made, he requested the dismissal of the case.
However, there are also allegations by the counsel for the other respondent. Counsel for the respondent contended that the claim made in connection with the suit was time-barred. Counsel for the respondent submitted that his client, a cardiologist, had diligently carried out all the necessary medical intervention and necessary procedures for the deceased patient. Blood was requested from the clinical microbiology department in order to make it possible for the patient who was in surgery to survive the surgery comfortably. With the serology report, it is documented that there is no problem in inserting blood into the patient. Aftermath: the patient who was given blood was discharged in good health. Subsequently, it was determined that the person who was sick was healthy, but the person who was sick later had the hepatitis B virus. Counsel for the respondent contended that his client had fulfilled all his responsibilities during the medical intervention or after the medical intervention without the slightest fault and that he had not been found guilty in the criminal investigation either. He argued that he could not be held liable for the situation that occurred for all the reasons he had stated.
Counsel for another defendant contended that there was no nexus between the arts attributed to myself and the client in connection with the case. However, it was argued that the request for this situation in the criminal investigation was time-barred and a request was made for the dismissal of the case.
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It is also possible to mention the court decision that has been given. It is a deficiency that the clinical microbiology unit created by the respondent hospital with the relevant numbered decision has not received some permits. However, it is stated that the hospital will not be at fault in the occurrence of an undesirable and negative situation in the concrete case. It was said that the blood obtained from the hospital with the knowledge and consent of the persons who are the relatives of the patients must be proved with a definite data regarding whether the blood has performed the mandatory tests within the Regulation on Blood and Blood Products determined by the General Directorate of Treatment Services of the Ministry of Health and if so, whether the hepatitis B virus has been transmitted to the deceased patient from the blood given by the hospital. According to the report of the forensic medicine institution included in the file, it is stated that it will not be possible to interpret the results of the screening of the doner as an absolute positive since it is at the lowest level limit, and it will not be possible to medically determine whether the virus that caused the death of this person has passed through the blood given from the person concerned. Within the framework of all the evidence in relation to the file, there is no conclusive scientific data and evidence that the deceased patient contracted the hepatitis B virus from the blood taken from the respondent. It is hereby ordered that the original and consolidated suit be dismissed as inappropriate on the ground that no nexus of nexus has been established between the alleged situation and the respondents and the fault of the respondents has not been proved.
The decision includes a decision to quash the special chamber in the continuation of the court's decision. In opposition to the aforesaid decision of the local court, the counsel for the petitioners filed an appeal. The appeals of the counsel for the plaintiffs by the relevant decisions of the Chamber of the Court of Cassation were rejected. However, the rationale is presented. On this ground, the judgment is quashed. In the justification, it was stated that although the person who was the plaintiff in the whole file did not have Acute Hepatitis B before, he died as a result of contracting hepatitis and blood disease with the blood given during the heart surgery performed in the defendant hospital. Although it is established that the deceased died for this reason, it is necessary to award an appropriate non-pecuniary compensation in favour of the plaintiffs in view of this circumstance. A decision on non-pecuniary compensation shall be made in relation to the purpose of satisfying to a certain extent the severe spiritual distress felt by the person whose personal interests have been processed, to restore the balance of the soul that has been disturbed and to restore this birthday within the limits of possible possibilities. The discretion of the judge as to what the case is related to non-pecuniary damages. This discretion is a right and duty of the judge. However, in performing this duty, the judge must determine a reasonable compensation provided that he takes into account the material provision contained in the Turkish civil code and adheres to the principles of right and clear Saffet, the social and economic situation of the persons who are parties, the degree of suffering and suffering caused by the defective tendency and the person who is aggrieved, the place of the person who makes the claim to him, his personality and the degree of sensitivity. While it is necessary to have awarded an appropriate non-pecuniary compensation within the framework of the principles explained by the Court, the fact that it has used the decision to dismiss the case with the opinions given to the contrary is contrary to the procedure and the law and requires quashing. These explanations are included in the tool.
Counsel for the plaintiffs against the quashing order filed a petition for rectification of the judgment by the respondent hospital and the counsel for the respondents. Thereupon, the special chamber decided to reject the request for correction of the decision, which fell outside the scope specified by the relevant numbered decision. It is possible to mention those that are included in the scope. So much so that the basis of the case is the attorneyship agreement. In the case, there is a fact of breach of the special debt arising out of the attorneyship agreement between the hospital and the doctors in the respondent institution. The person in the position of the deputy is not responsible for failing to achieve the result to which he is directed while performing the work. The person in the position of the deputy is responsible for not doing the work he has done carefully in order to achieve the result while working. Adheres to the rules that relate to the responsibility of the representative and the responsibility of the employee in general. The person who is the surrogate is under the obligation to behave as attentively as the worker, and he is liable for even a slight defect he has committed. Therefore, it should be accepted that the person who is a doctor is within his own responsibility, even if all the defects in the professional field are slight. Medical doctors are under the obligation to show the attention and care that can be imposed on each person not only in the professional sense but also according to their general life experience in order to prevent their patients from being harmed. The doctor is under the obligation to fulfill the professional conditions he is in while taking part in a medical study. However, it is under the obligation to value the condition of the person who is sick and to produce and apply the rules of medical science as well as to take all kinds of measures related to treatment. In cases where there is a small suspicion, the doctor is under the obligation to carry out research to eliminate this suspicion and to take protective measures in relation to this. When making a choice among various treatment methods, taking into account the characteristics of the sick person and the disease of this sick person, they should stay away from the attitudes and behaviors that will put this person at risk and go to the surest way. So much so that the client who trusts him from the attorney, who is a doctor doing a professional job, is right to expect to do his job carefully and carefully. The proxy who has not taken care is deemed not to have fulfilled his power of attorney as required in accordance with the provisions in the Turkish Code of Obligations.
The defendant in the entire file has sold the blood product outside the scope of the existing license within the date of approval, and although there has been a warning and criminal action, this act has continued repeatedly. It is evident that although the person with the muris of the plaintiffs did not have acute hepatitis B disease before, he died of hepatitis be disease with the blood given to him during the heart surgery in the defendant hospital. In this case, it is the case that the defendant company is liable as a proxy for pecuniary and non-pecuniary damages to the plaintiffs. It was necessary to make a decision according to the result by evaluating the claims of the plaintiffs for pecuniary and non-pecuniary damages by the court and taking into account the vested rights of the plaintiffs. While the judgment rendered should have been quashed on this ground, the fact that it was quashed in writing in the notice was understood by the examination made this time and it was necessary to decide on the acceptance of the requests of the plaintiffs for the rectification of the decision in this respect.
As stated in the report of the expert committee in the British history in the examination of the other defendant's decision correction objections, it is the case that the doctor who followed the patient in the cardiological sense took the necessary precautions and that the patient was able to overcome the risky medical intervention without any problems with the appropriate and appropriate drug treatments. However, months after these attempts, he died due to hepatitis other than the cardiological cause, the doctor's depression and the diagnosis he made and the treatment he had done, it is clear that there was no carelessness, error, negligence or deficiency. It is alleged that the respondent doctor had duly given the blood to the person who was sick and that the tests carried out on him in relation to infectious diseases which had been sent during the operation were of a negative nature. In such a case, in the dismissal of the suit filed in respect of the doctor, there was no violation of the procedure and the law in our law; the judgment rendered was quashed in writing in the advertisement, and it was understood by the examination made on this occasion that the request of the respondent doctor for rectification of the judgment was granted, the impugned order of the department quashing the said judgment was quashed and the court had decided to quash it for the reasons stated above. is the subject.
There is also the existence of the decision to resist which is relevant to the case. In addition to the reasons previously stated in the relevant decision, it is the case that the illicit link between the harmful act based on the claim made in relation to medical error and the harm is of a scientific nature. Based on the data in the file, there is no conclusion that can be reached with the conscientious opinion of the judge. Among the acts of giving hepatitis B-containing blood to the person who was sick in relation to the death that occurred in the report of the forensic medicine institution is the case of giving blood containing hepatitis B to the patient who did not have hepatitis in his blood before, as stated in the decision to quash while this has not been scientifically established. Thus, the patient lost his life and the decision to resist was made by stating that accepting that there was a link between cause and effect and the establishment of a relationship of illicit would result in being scientifically excluded.
There are explanations for the appeal of the decision to resist. During the period of the decision to resist, the counsel for the plaintiffs who were included in the merged file appealed.
There is a dispute with respect to the decision. The dispute which has been brought before the General Assembly of Law by the resistance relates to whether it is possible to admit the hepatitis be virus which caused the death of the plaintiffs in the file transmitted from the blood given by the hospital in the position of the respondent. However, according to the conclusion to be reached, it is also within the scope of the dispute whether the hospital in the respondent's arm is liable for compensation for the present death.
The part of the decision in which the explanations are located is the justification. It is important to mention the reasoning contained in the decision. Thus, in resolving the dispute, it was found useful to first include explanations of the nature of the legal relationship between the muris of the plaintiffs and the hospital in the defendant position. So it's important to mention these explanations. According to the provision in the Universal Declaration of Human Rights, life is everyone's right. The right to health has been accepted as a basic human right and is included in the relevant article. The right to security that every person should have in the event of an appropriate standard of living that would enable the provision of health and well-being, including medical care for his or her family, or in circumstances other than his or her will deprives him of his or her means of livelihood, constitutes the right to health and health. Thus, the right to health is within the basic human rights recognized and guaranteed by the society in which the individual is located.
The provision relating to health standards contained in the United Nations International Covenant on Economic, Social and Cultural Rights also recognizes the right of every person to have the highest possible standard of physical and mental health. There are measures to be taken by States Parties to this Convention to realize this right. Thus, it is one of these measures that the conditions necessary for the realization of all kinds of health services and care in case of illness are created. The provision in the European Convention on Human Rights is also included in the protection of the age of the right to life of each person. Thus, in the international sense, it was aimed to provide guarantees for individuals regarding the importance of this situation and to undertake the duty of fulfilling this right within domestic law to the states. However, Article 90 of the Constitution contains a provision that international agreements duly entered into force have the force of law. In addition, there is a situation in which it is not possible to apply to the Constitutional Court with the claim of unconstitutionality in this provision. There is a regulation that the provisions of international agreements will be taken as basis in disputes that may arise due to the fact that there are different provisions on the same subject between the international agreements and laws related to fundamental rights and freedoms that have been duly put into force. Considering all these, it is possible to see the reflection of the right to a healthy life, which is included in international documents and guaranteed, in our domestic law. In the constitution of the Republic of Turkey No. 2709, there are provisions guaranteeing health law. According to these provisions, every person has the right to life, to protect and develop his material and spiritual existence. The state is under the obligation to ensure that every person continues his life in mental and physical health. In order to ensure the realization of cooperation by increasing the savings and efficiency in human and material power, state health institutions should fulfill their obligations to regulate planning and service provision from monopoly. However, the state can fulfill this duty by supervising the health and social institutions in the public and private sectors, provided that they benefit from them.
With these provisions, it is important to determine what is the basis of the legal relationship between the parties. The source of the Debt Relations is included in the general provisions of the Code of Obligations, which must be applied in the concrete case as of the date of the case. So much so that the contract has been arranged as a source of unjust enrichment debt relations or unjust enrichment. The legal relationship that took place between the private hospital and the patient was a contractual relationship and is free from any hesitation. Before the explanations made about the contract, it was useful to explain the concepts of hospital private hospital.
In our laws, the definition of the concept of patient is not explicitly included. The provisions in the Regulation on Patients' Rights are also defined as people who need to benefit from patient health services.
The provision contained in the Law on Private Hospitals No. 2219 shall be deemed to be within the private hospitals of the state or to treat patients by hospitalization other than within the private administrations and municipal hospitals or to provide for the provision of maternity benefits in order to be fed in drunken conditions until the strengthening of weak people who have just had a disease is considered to be within the private hospitals. So much so that this explanation corresponds to private hospitals. It is the case that it is necessary to accept the health institution established for the purpose of providing treatment, pledge and maternity assistance provided that it is hospitalized by persons other than the state or other public legal entity in relation to the establishment, organization and operation of the institution. The establishment of the contract accepted to exist between the private hospital and the patient is important in the legal dimension and legal nature of the contract, as well as the legal provisions that must be implemented. However, when the rights and obligations of the parties and the existence of the violation related to them are in question, the determination of the obligations is important in resolving the dispute. The relationship within private hospitals is not between the patient and the physician. In other words, there is a relationship between private hospitals and the patient. So much so that there is a contractual relationship between the patient and the hospital.
The contract between the patient and the private hospital is not a typical contract within the Code of Obligations. A contract made with the legal representative of this patient who also applies to a private hospital and in which the operator of the private hospital undertakes to perform medical and other customary acts is defined as a hospital admission contract. The hospital is not obliged to comply with any form requirements for the establishment of the Cyprus convention to be possible. However, it is possible to establish the hospital admission contract with the implied declaration of will. A contractual relationship is established with the hospital admission contractor in the nature of profit for multiple patients. It is also possible that this contract is established in the form of a full or partial hospital admission agreement depending on whether the person who owns the private hospital has undertaken the treatment obligation separately. The full hospital admission agreement referred to herein consists of the responsibilities of the hospital owner to the person who is sick for the provision of the medical services necessary for the diagnosis and treatment of the disease of this person, the maintenance of the hospital, the organization of the hospital and the functioning of the hospital.
The hospital admission agreement is accepted as a mixed contract. So much so that this type of contract is accepted as a mixed contract in German and Swiss laws and in Turkish law today. But the solution that has been introduced in practice is where there are different situations. An example is that in German law, the provisions of the service contract apply, regardless of the type of acceptance contract. In Swiss law, the relationship that exists between the patient and the private hospital is likewise characterized as a power of attorney, as is the legal relationship between a self-employed physician and the patient. In Turkish law, the fact that the hospital admission contract belongs to the medical treatment act that constitutes the main act, that is, it is subject to the regulations contained in the proxy agreement, is only suitable for the purpose of applying it comparatively to the extent that it coincides with the characteristics of the typical contractual provisions related to other obligations.
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It is not possible to say what is possible to apply to every case in relation to the information to be carried out in the care of the hospital by the operator of the hospital. However, although it is not clearly stated in the contract, the health status of the person who is sick is obliged to take all the measures required by the principle of honesty according to the type of disease he has and the severity of the disease. If the disease of the person who is sick has been diagnosed without the necessary tests, if there has been an error in determining the blood group, if the vehicle used in the surgical intervention is broken today, the person in the position of the hospital operator is under the obligation to compensate for the damage caused. There are a few other examples of mistakes made. So much so that the reason why the tool used in the surgical intervention is faulty, the compress used after the operation is more hot than it should be and causes a burn, a patient with a mental illness commits suicide because it is not controlled, the necessary precautions against the fire that may arise have not been taken, the poisoning due to the delivery of food that is broken, In case of aggravation of the disease due to the failure to carry out the necessary heating processes or in case of causing this disease, the person in the position of the hospital operator is obliged to compensate for the damage caused. Apart from this, the hospital management also has concrete organizational responsibilities. Thus, the tasks related to the selection of all health personnel together with the physician and their supervision and organization should be fulfilled as they should be. If the task is entrusted to a non-specialist, the organizing party is at fault. That is, the responsibility of the management for compensation arises.
When the person who is sick is admitted to the hospital after being admitted to the hospital, it is under the responsibility of the hospital authorities. Thus, the patient has the demand to receive the best possible care and treatment service provided to him. The organizational obligation of the institution that is the operator of the hospital essentially corresponds to the duty of care that it is responsible for showing to the person of the person who is sick.
The patient may claim that only the hospital operator is responsible for the care services provided by the hospital in the hospital admission agreement that the patient has. The patient or the patient's legal representative who is the other party to the contract is responsible for paying a certain amount of predetermined fee against the medical service provided to them by the private hospital. However, the patient or the patient's legal representative should be informed to the extent of certain possibilities for the findings related to the existing discomfort and the conditions related to the continuation of the disease. If available, the patient or the patient's legal representative should also provide the documents to the physician at the time of the examination. Thus, it is necessary to examine the legal provisions that are applicable to the liability of the hospital in the position of the defendant within the hospital admission agreement regulated in the Code of Obligations or other existing laws. Thus, within the framework of the provisions contained in the legislation, especially in the Law of Obligations, it can be said that the trustee should engage in the necessary initiative and behavior according to the customary Draft of the affairs in order to ensure the success of the result targeted for the duty of care. The special debt of the deputy is not that the result that was directed at the time the work was done was not filled, but that the activities carried out in order to achieve this result were carried out meticulously. If the duty of care is not provided, the burden of proof is on the proxy. The trustee cannot fulfill this burden by simply proving that a successful outcome has not occurred. So much so that the attorney must prove that he is effective in not reaching a result as things should be by claiming that he has engaged in a behavior that does not constitute compliance with the rules of the profession.
There is a parallel between the doctrine and a stable practice of the Supreme Court that the dispute between the private hospital and the patient should be resolved according to the legal provisions relating to the power of attorney agreement, as stated in the concrete case.
With all the explanations available, some conclusions emerge in the examination of the concrete event. The muris of the plaintiffs had suffered a heart attack during the relevant year. Subsequently, the plaintiffs Murisine was fitted with a stent in the hospital in the position of the plaintiff. Prior to this operation, two units of blood were given to the deceased from the blood center located in the hospital in the respondent institution due to the problem of my mother. The plaintiffs were admitted to the hospital almost three months after the muris was discharged complaining of joint pain, nausea and weakness and symptoms of jaundice. Within the examinations performed, the deceased was also detected with hepatitis B virus and the person died as a result of not being saved despite the interventions. The forensic medical report in the file shows that the cause of death was fulminer and Hepatitis B liver failure due to hepatitis virus. The dispute between the domestic court and the Special Chamber concerns the assumption that the death due to the present illness was caused by blood supplied from the hospital in the position of the respondent and whether the hospital in the position of the respondent was subsequently responsible.
It is understood that the deceased was sick due to hepatitis B virus. Afterwards, the donors of the transfused blood were given repeated and further tests. The presence of a low-value virus was detected in one of the blood donors. In the expert examination conducted by the Court, the supreme, one of the members of the expert panel and the head of the Department of Internal Medicine, expressed a finding that the value present in the doner was a low filter as well as that the blood given was of an infectious nature. He submitted that due to the use of one-off materials, it was not possible to transmit the disease from materials used by the hospital. Üstün stated that it would be possible to transmit sexual intercourse through barber materials, drug use and similar means, but considering that the person who was sick was an 84-year-old woman, these possibilities were unlikely. However, it has been stated that the hepatitis B table of the person who is sick is strongly caused by the blood that is contagious in what is given. In the same report, it was stated that although it is not mandatory in the regulation on blood transfusion belonging to the Ministry of Health, it is possible to detect hepatitis disease by advanced examinations.
In fact, when all the details given in relation to this case are taken into consideration, it can be said that the right to life and the health related to it are among the most basic rights of the individual. They are protected by law. It is normal for the individual in the society to expect the highest degree of care and attention from those he entrusts himself or to his relatives. However, in the relations between the patient and the doctor or the hospital, the established case law and the proxy agreements that must be applied are based on the Özen debt. In power of attorney agreements, the rule is that if the proxy claims to have suffered damage from the transaction made, this must be proved by the proxy. In the concrete case contained in the judgment, the plaintiffs are of the opinion that they cannot reach a definitive judgment in the medical sense as to whether the blood given to his muri alone will be sufficient to cause him sick. It is understood that hepatitis be virus is involved and the death that occurs occurs due to this disease. It is evident that while the respondent hospital was using its own blood tank, the donors had carried out the tests prescribed by the Ministry of Health regarding the blood they had donated and that the results were not of a carrier nature and that it was possible to detect the virus by further examinations containing much less margin of error technologically than the expert report received. In the re-examination of the situation that occurred in the deceased, it was also determined that the donor carried the virus with these tests.
Working within the supervision mechanism established in accordance with the legal procedure and operated in accordance with the legal procedure, while it is possible to obtain the data from the blood centers that provide this work and the data transfusion, the hospital in the position of the respondent that supplies blood from the system established by the patient has the obligation to pay the highest amount of special attention, even if the person who is sick is to ensure a rapid intervention. While it is obvious that there is contagion in the blood given to the patient related to the disease that caused the death of the patient, the hospital in the position of the defendant must prove that the disease that occurred in the patient's body was transmitted to him for a different reason and not from this blood given. However, in view of the file, this could not be established by the respondent hospital. In the face of this circumstance, since it is unlikely that the nexus of the nexus is fully established by the court, the decision made by the respondent hospital to dismiss the original suit is contrary to procedure and law. For this reason, it requires the decision to overturn the judgment. During the deliberations held in the General Assembly of Law, it is the case that the current expert report does not constitute sufficient to establish the illicit link between the result and the movement and that there is a need to bring hesitations by obtaining reports from expert experts on the subject. The present view that the judgment rendered should be quashed on the grounds and reasons has been adopted by the majority of the Board for the reasons stated. Thus, as a result, it was necessary to overturn the decision to resist for all the reasons explained and the reasons given in the decision to overturn the special chamber adopted by the General Assembly of Law.
Malpractice Litigation within Health Law
Malpractice is a concept that is related to the application of health law in Turkey. A legal protection has been provided for the application of disputes arising from malpractice, also called medical error. First of all, there are some carbons that need to be said about this situation. The first of these concepts is the intervention on patients. So much so that interfering with people's bodies is illegal because it is a completely personal right. The right to bodily integrity is part of the right to life. Some conditions must be met for physicians to intervene in the body of patients. If these conditions are met, it becomes legal to interfere with the body. Legally the intervention in the body must be done by the authorized person. Informed consent must be obtained to intervene in the body. In order for physicians to be able to perform medical intervention, there must be a medical necessity. However, the intervention of the physicians should be according to the standards and ethical rules of medical science. If these conditions are met, it becomes legal for physicians to perform medical intervention.
You can get detailed information and appointment by contacting Istanbul Lawyer for malpractice doctor error compensation cases inIstanbul.