The medical profession, due to its nature, holds great importance for both human and societal life. A profession that impacts human and societal life so significantly inevitably requires legal and criminal regulations to define its boundaries. The criminal liability of a physician refers to the responsibility arising from actions taken during the practice of medicine or due to the exercise of the profession. Due to its nature, every medical intervention can potentially violate a person’s bodily integrity. Therefore, it is important to define the limits of medical interventions.

When it is alleged that harm has been caused by a medical intervention, a criminal investigation is conducted against physicians by the Public Prosecutor’s Office. The criminal investigation against physicians is carried out in the same manner as for others, and there is no separate legislation on this matter. Additionally, there is a difference between physicians working in private hospitals and those working in state hospitals when it comes to the initiation of an investigation. In private hospitals and in their own clinics, an investigation can be directly initiated based on allegations of harm arising from a medical intervention. However, in state hospitals, where physicians are public employees, an investigation based on allegations of harm caused by a medical intervention can only be initiated with permission from the administrative authorities.

From the perspective of criminal law, according to the classical distinction, the general constituent elements of a crime consist of two elements: one is material, and the other is mental.

In criminal law, for a crime to be committed, there must be an act that is in accordance with the legal definition, contrary to law, and committed with either intent (mens rea) or negligence (recklessness). The conformity to the legal definition is achieved when the elements of the statutory crime are met. The material element consists of the execution of the act specified by the law, the occurrence of the result mentioned in the crime type, and the existence of a causal link between the action and the result. The mental element refers to the intent and negligence that are necessary for the act to be attributed to the perpetrator. Therefore, a criminal act must be committed with wrongful intent by a person who has the capacity for fault.

The action that is in conformity with the statutory definition of a crime also contains the element of unlawfulness, which is one of the structural elements of the crime. However, if there is a legal justification for the act, the element of unlawfulness does not occur.

For a medical intervention to be lawful, it must be performed by an authorized physician, the patient’s consent must be obtained, the patient must be informed about the medical intervention (informed consent), and the physician must carry out the intervention in accordance with the duty of care and diligence. These factors are considered justifications for the lawfulness of the practice of medicine.

“Medical intervention performed by an authorized person, based on informed consent and in accordance with medically accepted principles and the purposes prescribed by law, is lawful. Therefore, the perpetrator cannot be held responsible for the harmful consequences resulting from it…” (T.C. Court of Appeals, 12th Criminal Chamber, E. 2013/11225, K. 2013/15909, T. 11.6.2013)

A physician should act with the purpose of treatment when performing a medical intervention. If the physician acts with an intention other than treatment, they may be held criminally liable. If the physician acts without treatment purpose but with an intent to kill or worsen the patient’s health, they will be criminally liable for intentional killing or other crimes consistent with their actions. In cases where the physician commits a crime intentionally, their responsibility will be the same as for any other person.

A physician, when performing medical interventions, must show the necessary attention and care against potential risks and take the necessary precautions. If the physician fails to show the required attention and care, they could be held liable under criminal law for negligence.

“…In the case of a wrongful medical intervention that causes harm to the patient’s health or results in death, if there is a causal link between the intervention and the outcome, even if the patient was informed and consented, the physician who performed the intervention may be liable for bodily harm or manslaughter due to negligence…” (T.C. Court of Appeals, 12th Criminal Chamber, E. 2013/11225, K. 2013/15909, T. 11.6.2013)

In conclusion, a physician must fully fulfill their duty of care and diligence when practicing their profession and adhere to the requirements for a lawful medical intervention. Otherwise, the physician may face legal and criminal liability.

Attorney Şefik Ziroğlu & Trainee Attorney Neslihan Öykü Şahin