What is Medical Malpractice Suit?
Malpractice means that the patient suffers damage due to the fact that the medical intervention performed by the health worker, especially the physician, is against the medical standard. In this case, which is also called medical malpractice, the injured patient or the relatives may demand compensation for the damage, and criminal liability may arise against the physician.
What is the Physician’s Responsibility?
The prevailing opinion about the type of relationship between the patient and the physician is that of the “Proxy Agreement”. In accordance with this qualification, the provisions of contravention of agreement will be applied in the compensation lawsuit filed by the patient who has been harmed by the treatment and physician’s error. If the patient goes to a hospital or similar health institution instead of applying directly to the doctor, and if there is no doctor chosen and agreed with in the hospital, the doctor assigned by the hospital management will be examined and treated. In this case, the direct relationship will be established not between the patient and the physician, but between the patient and the hospital. Therefore, it is necessary to make a distinction according to the type of hospital that needs to be examined.
If the hospital is a Private Health Institution, the patient will be admitted to treatment and a contractual relationship will be established between the patient and the hospital. This contract is called a “Patient Admission Contract” in which case the patient applying to a private hospital or legal representative and the private hospital operator undertake to fulfill both medical and other customary procedures. In such a case, the physician is in the position of “Auxiliary” according to Article 116 of the Turkish Code of Obligations, since he/she undertakes the treatment on behalf of the hospital, not on his/her own behalf. In private hospitals a claim for compensation can be brought against both the doctor who made the wrong diagnosis or treatment, the hospital operator and the insurance company that insures the doctor’s mistake.
Considering that the facility where the patient goes is a “State Hospital”, a contractual relationship between the patient and the hospital cannot be established. For this reason, if the person suffers any damage from the treatments in the state hospital, he/she can file a lawsuit against the state or the relevant public legal entity, depending on the characteristics of the concrete case. He/she cannot show the physician and other health personnel as adversary because compensation cases arising from the faults committed by civil servants and other public officials while using their powers can only be brought against the administration, in accordance with the forms and conditions indicated by the law.
What is the Liability of the Independent Physician?
If the patient applies directly to the physician for health care, the relationship between them is based on the proxy agreement regarding the high court decision. The most important element that comes to the fore is obligation of performing duties by the deputy. In the meantime, while the labor agreement or service provision agreement is established for a certain period but there is no such a rule for proxy agreement.
Physician stated that the relationship between the patient and the physician is responsible for the harms arising from the efforts of the physician to reach the result, physician’s actions and the carelessness of his/her behaviors.
The contract between the physician and the patient is called the “Treatment Agreement“. With this agreement, the physician furnishes medical intervention; The patient is also under the obligation to pay a fee for this. For example, “Agreement for Work” are applied to legal relations whose subject is aesthetic treatment. The main thing in this contract is not the physician’s obligation to work, but the formation of a work.
A decent clarification is also considered as a requirement of the physician’s duty of care and duty of loyalty. The clarification to be made, should be explained concretely, in a simplicity and clarity that can be understood by the patient, rather than general and abstract expressions.
Clarification should be done by the physician who will perform the procedure. Clarification is primarily done verbally, and then this clarification must be recorded in writing and signed by the parties. In obligatory circumstances where the physician cannot provide the clarification himself/herself, it may be accepted that physician leaves this obligation to another physician. However, the person who will be left with the clarification text cannot be an assistant health personnel or a patient caregiver.
What is Complication?
The patients should be informed by the physician of the anticipated harmful consequences that are predicted to occur in advance. The patient must give consent to the application by knowing these harmful consequences that may occur during and after the medical application, even if there is no fault, so that the medical intervention is in unitedly with the law.
In the meanwhile, patient should be informed about the pre-intervention and should get to informed consent. The other significant point is about complication management of doctor, therefore should be determined that the doctor is not at fault.
In practice, it is the occurrence of inadvertent negligence that is more common when it comes to the criminal liability of the medical intervention of the physician.
Compensation Demand Status
Within the scope of material compensation, treatment costs, loss of workforce, loss of earnings, burial expenses in case of death, compensation for deprivation of support can be claimed. On the other hand immaterial compensation is a type of compensation that the patient or his/her relatives can demand as a result of the pain and suffering they have experienced due to medical error and the amount will be determined by the judge, depending on the concrete case.