THE RESPONSIBILTY OF DOCTOR AND HEALTHCARE PERSONNEL AND LAWSUITS ARISING OUT OF MEDICAL ERRORS

24.12.2018

 

The right to the highest attainable standard of physical and mental health, in short, “right to health” is a fundamental human right protected by international law. For the continuation of a healthy life a proper and lawful medical intervention is of great importance and an improper or incomplete implementation of the intervention results in great pain in the patient. Sometimes these results are irreparable and permanent and affect the whole life of the patient and in some cases the medical errors may cause even the patient's death.

As a result of this vital importance; a doctor or a healthcare personnel is obliged to act carefully while carrying out the patient’s treatment. Within this scope, doctor and healthcare personnel are fully responsible for “the slightest negligence” due to “the highest duty of care”.

In this article, the special conditions of responsibility of the doctor and healthcare personnel and characteristic elements of the lawsuits arising out of medical errors shall be explained.

In general, medical malpractice, can be defined as damage of the patient due to misdiagnosis, wrong treatment, or deficient care because of the lack of knowledge, inexperience or indifference of the doctors or other personnel of health care institutions, polyclinic, hospitals etc.

The term medical malpractice action or claim means a written claim or demand for payment that is filed for the failure on the part of a health care provider to furnish health care services.

Indemnifying the loss arising from the negligence of the hospital and its personnel is based on the attorney agreement. Within this scope, the proxy is obliged to fulfill all occupational conditions in order to hold its patient harmless, to detect the patient’s status medically in due of time and without any delay and to take all necessary measures in full, and to determine and implement the appropriate treatment without any delay as well.

Due to the fact that bodily injuries include an intense uncertainty at the beginning, the type of the lawsuit to be filed against a doctor and hospital will be “the lawsuit for uncertain debts” set forth in the article 107 of Code of Civil Procedure No. 6100.

In addition to the fact that medical errors does not have any certainty in terms of liability and negligence like other liability types, if it is not certain that the patient’s errors and sickness arise from the medical errors, and it is uncertain whether it is medical error or not, and whether the doctor and the hospital will be held responsible or not, the lawsuit should be filed as determination lawsuit and in case the existence of medical error is proven by the gathered evidences and expert reports, the lawsuit should be turned into a compensation lawsuit afterwards.

Possible Lawsuits

Pecuniary and Non-Pecuniary Compensation As a Result of Wrong Treatment

Wrong treatment constitutes a tortious act within the scope of the Code of Obligations at first and a contradiction to agreement. The Supreme Court’s practices accept the representation relation between patient and doctor at private hospitals, and the private law part of malpractice cases acts therefrom. Patient who is damaged due to the failure of doctor or hospital shall have a right to claim pecuniary and non-pecuniary compensation from both the doctor and the hospital, if any, where the doctor practices its profession.

Criminal Case As a Result of Wrong Treatment

Wrong treatment constitutes a crime committed against the integrity of body in case a doctor’s personal fault remains at the forefront. The nature of the crime may change depending on the patient’s damage.

In case a doctor’s fault causes a death, the crime of reckless homicide set forth in the article 85 of Turkish Penal Code. This crime is regulated as an act requiring a penalty of imprisonment from a term of two to six years. In case the act results in the death of more than one person, or the injury of more than one person together with death of one person, the aggravated crime shall occur and the upper limit of the crime shall be the imprisonment of fifteen years.

In case a death does not take place as a result of malpractice but it leads to a health problem for patient, the crime of reckless injury shall occur. (Art. 89 of Turkish Penal Code). The penalty of reckless injury is regulated as an imprisonment of a term of three months to one year, or a judicial fine.

PARTIES OF THE CASE

In case there is a direct relation between the doctor and the patient, and the hospital does not intervene, a lawsuit will only be filed against the doctor. In case the patient resorts to a private hospital and a doctor is appointed by the hospital management for the treatment and operation; a lawsuit may be filed against both the doctor and the hospital according to the joint liability provisions.

In the lawsuits to be filed against the doctor and the hospital, within the scope of joint liability, an insurance company which provides an Obligatory Liability Insurance of Medical Malpractice may also be sued.

In case an obligatory insurance is not taken, according to the article 14 of Insurance Law No. 5684, a lawsuit may be filed against the guarantee account.

As for the lawsuits for medical errors arising out of Public Hospitals, it will be filed before “administrative jurisdiction” against the Ministry of Health and the management of universities of medical faculties instead of the doctors being a public official and healthcare personnel.

However, in case of existence of public official’s personal faults which may be drawn apart from the duty, on condition that personal faults are proven, a lawsuit may be filed before judicial justice due to the actions which are deemed to crime. 

Within the framework of the Law on Private Hospitals and the relevant legislations, the Ministry of Health is obliged to exercise due care by granting a permission and license for opening a private hospital and controlling these hospitals regularly.

If the patients are harmed due to the deficiency in doctor and healthcare personnel, lack and inadequacy of treatment facilities and units, unsuitability of operating rooms and intensive care units, both the managers of private hospital and the Ministry of Health which fails to carry out necessary inspections will be responsible.

For these reasons, people and their relative who are damaged by the treatments of private health institutions, deficiencies in medical confiscating, or negligence of health services may file a lawsuit before judicial justice against companies to which the private hospital is affiliated and doctors having a personal fault, and they may also file a compensation lawsuit against the government (Ministry of Health and universities) before administrative jurisdiction on the same matter.

Competent Courts

Competent Court of Compensation Lawsuit against Private Hospital

As a result of the representation relation deemed to have been established between a patient and a doctor, it is deemed that consumer courts are the competent courts in such cases. The lawsuit for compensation against the hospital and doctor due to the wrong treatment of a private hospital should be filed before the consumer courts.

Competent Court of Compensation Lawsuit against Public Hospital and University Hospitals

As to the compensation for damages as a result of the wrong treatment of public or university hospitals having the nature of governmental institution, the administrative justice has the jurisdiction.

Authorized Courts

As for the lawsuits to be filed against a private hospital or a doctor having a private clinic, the authorized court is a court of the domicile on the lawsuit date (Art. 6 of Code of Civil Procedure). In the lawsuit arising from tortious act, as per the article 16 of Code of Civil Procedure, the court where the tortious act has been committed or a loss has occurred or may occur, or the court of domicile of the injured party is authorized.

In case of a criminal liability of doctor, an application should be lodged through a complaint petition before Chief Public Prosecutor’s Office where the hospital of tortious act committee by the doctor is located.

LIMITATION PERIODS IN THE LAWSUIT

The limitation period for compensation lawsuits to be filed against a doctor is 5 years. However, in case a doctor’s act is deemed to be a crime as per criminal act, the extended limitation period will apply and according to subparagraph 1-e of article 66 of Turkish Criminal Code, the extended limitation for bodily injuries is 8 years

The limitation period for the lawsuits to be filed against private hospitals is 10 year

 The limitation period for the lawsuits to be filed against a doctor, hospital and insurance company as per the provisions of joint liability is 10 years. The limitation period for the administrative lawsuits to be filed against Public Hospitals is 1 year as of time of discovery of loss,

The commencement of the time limitation starts from the discovery of the final report concerning the loss of physical strength.

As it is explained, the liability of doctor and healthcare personnel constitutes great importance in a legal meaning. It should be accepted that a doctor is responsible for his/her own fault concerning the profession, even if it is a slight fault. Doctors and healthcare personnel are obliged to assess all kinds of risks and possibilities in relation to the diagnosis and treatment, and to take accurate actions. Otherwise, legal actions might be taken for the incurred losses against all actors being part of the provided health services.

 

 

Att. Semra Gürçal 

 

Bibliography:


1. “SAĞLIK HAKKI” Ve SAĞLIK HİZMETLERİNİN SUNUMU Prof. Dr. Nazmi ZENGİN* http://dergipark.gov.tr/download/article-file/303589