Herniated disc is a common disease that negatively affects many people’s lives, and its treatment is often more difficult than the disease itself. In the field of law, Herniated Disc is particularly relevant in Health Law.

In Health Law, Herniated Disc arises from damage caused by a physician’s fault during the treatment of the patient. The “Herniated Disc” disease plays a significant role in cases of compensation for damage caused by medical error (malpractice). Among patients, there is a common perception, especially in hernia surgeries, that “it’s much worse after surgery, I’ll endure as much as I can.” Unfortunately, this perception is prevalent due to many people undergoing unsuccessful surgeries. We can observe many examples of this in practice today.

In compensation lawsuits (malpractice) filed due to physician fault, Herniated Disc is involved in many disputes. The treatment applied for Herniated Disc can lead to both material and moral damages for the patient. In practice, after receiving treatment from the physician, patients may face severe negative outcomes, such as the condition worsening while the disease was expected to improve, being unable to use certain body parts after surgery, or even death. This situation may cause short-term, long-term, or even lifelong material and moral damages for the patient. In such cases, the patient must file compensation lawsuits (malpractice) and prove the physician’s fault. The fault is established when there is a causal link between the damage and the physician. In this case, the expert report, which will reveal this causal link, is essential. Based on the expert report, the physician will either be assigned fault or exonerated. This process can be a difficult one for the patient, both physically and mentally.

An “Informed Consent” must be obtained regarding the intervention between the physician and the patient. The physician must inform the patient about the intervention, possible complications after treatment, and any risks involved, and then obtain the patient’s consent. If treatment is applied without providing all this information, the physician will be responsible for the damage resulting from the treatment. In the decisions of the Court of Cassation and the Council of State, failure to apply standard practices during diagnosis and treatment, lack of knowledge and skill, and failure to apply appropriate treatment are defined as medical errors. The physician has a duty of care here. The violation of the physician’s duty of care can occur in three areas: first, in the patient’s treatment, diagnosis, or post-treatment care, which is called the application error or treatment error. Second, it relates to informing and obtaining consent from the patient, which is called the information failure. Third, it is about collaboration among physicians, which is referred to as organizational failure. These three failures are known as “Medical Practice Errors” (Malpractice). The concept of medical malpractice is generally defined in Article 13 of the Turkish Medical Association’s (TTB) Medical Ethics Code as: “A patient’s harm caused by ignorance, inexperience, or negligence is considered ‘bad medical practice’.”

In practice, Herniated Disc is one of the diseases where many of these types of faults are encountered. Treatment errors and information failures in Herniated Disc have become almost a common issue for many people today.

Here are a few examples of malpractice cases related to Herniated Disc:

• 19/11/1997: The patient underwent a Herniated Disc surgery, but due to the wrong intervention during the surgery, the patient was injured. The court decided: “The physician who intervened wrongly during the Herniated Disc surgery is responsible for compensating the material and moral damages.” 4th Civil Chamber 2020/1117 E., 2020/1963 K.
• 07/03/2008: The patient underwent Herniated Disc surgery, and after the surgery, the patient experienced numbness in the legs, inability to control urination, and constant numbness in the hip, and was discharged four days later. The court decided: “After the surgery, the physician must continue to meet the duty of care. If this duty is violated, the physician will be responsible for the resulting damages.” 3rd Civil Chamber 2020/5860 E., 2020/8070 K.
• 04/12/2011: The patient, who went to the defendant’s clinic for treatment, was told by the doctor that urgent surgery was required. The surgery took place at the defendant’s hospital, and the patient was discharged on 04.12.2011. On 05.12.2011, the patient started to have discharge from the surgery site. The physician failed to take necessary precautions during treatment, causing an infection. The patient later suffered permanent discomfort due to the infection spread in the spine. The court decided: “The physician is responsible for the mistakes made in diagnosis and treatment, and the damages caused by the treatment error.” 13th Civil Chamber 2019/5220 E., 2020/2331 K.

As seen in the local court decisions, the patient is claiming compensation by attributing fault to the physician for violating the duty of care during the treatment process. The most important factor in seeking compensation for this damage is the causal link between the cause and effect, which is established by an expert report. The expert report from the Forensic Medicine Institution indicating the physician’s fault will form the basis of the malpractice case and the compensation will be awarded. However, as observed in practice, many reports attribute the outcome to “complications,” thus exonerating the physician from fault.

A fair solution is being sought for both the patient and the physician. Herniated Disc often leads to damage due to medical errors. However, Health Law protects the damages suffered by the patient while also protecting the physician from unjust accusations and faults. In this process, the key points between the patient and the physician are: the patient must evaluate the treatment process and diagnosis, the physician must fully explain all processes to the patient, and if there are risks after treatment, the physician must obtain the patient’s consent. By both parties fulfilling their responsibilities, preventable errors can be minimized. The physician’s fault must be linked to the damage, and this link is determined through the Expert Report. Based on the Court of Cassation’s rulings, we can see that this process reaches the most just resolution. The patient can be compensated for damages caused by the physician’s fault, while the physician will not be held responsible for every damage that occurs. The patient should be aware of their rights and understand that compensation is possible in case of any rights loss. Similarly, both parties can prevent avoidable mistakes by fulfilling the mentioned actions.

Av. Şefik ZİROĞLU & Stj. Av. Elif ÇAMLICA