When a person falls ill, the first person they will undoubtedly seek help from is a doctor. These individuals, who have received medical education, are trusted to apply the most appropriate treatment to heal their patients, or at the very least, to do everything in their power to assist them.

There are certain legal and ethical rules that give rise to this belief. For example, the Medical Deontology Regulation, the Patient Rights Regulation, and the Turkish Medical Association’s Ethical Principles all mandate that physicians are obligated to provide services according to medical standards.

Providing services without adhering to medical standards refers to the level of care that is required for a physician to achieve the treatment goal, which is based on the technology available at the time and proven through experimentation. Therefore, a doctor has the responsibility to treat the patient with care and diligence by choosing the most suitable treatment method.

If a doctor fails to act with care and diligence, even a simple fault on their part will result in the doctor’s liability. This situation, known as “malpractice,” describes the harm caused to the patient due to the doctor’s misuse of their duties. The Turkish legal system has established certain consequences for these damages.

Due to the legal responsibility of the doctor, the hospital, or the state, and the principle of personal liability, the “criminal liability” of doctors becomes relevant.

When a doctor treats a patient in their clinic or office, there is usually an assumption of a power of attorney contract between them. Therefore, if harm occurs to the patient as a result of the doctor failing to fulfill their duty of care, the doctor’s personal legal responsibility can be invoked.

In cases where a patient seeks treatment at a private hospital, there is typically a “patient admission contract” between the patient and the private hospital, and no direct contractual relationship exists between the doctor and the patient. In such cases, the hospital may also be held responsible for the doctor’s faulty behavior.

If a patient opts for treatment in a state hospital and harm occurs due to the doctor’s fault, legal responsibility falls to the state due to the liability of the public official.

When does liability arise?

First and foremost, according to the 1219 Law (The Law on Medicine and its Implementation), the doctor must obtain the patient’s consent before treatment. If the patient cannot give consent, the doctor must obtain consent from the patient’s relatives. However, in emergency situations, or if the patient or their relatives are unavailable to give consent, “consent” is not required. In these cases, any procedure performed without the patient’s consent will constitute an infringement of their bodily integrity. According to the Constitution, the violation of a person’s bodily integrity, which is one of the fundamental rights, will result in the doctor’s responsibility.

Another frequently encountered issue in practice is when a doctor misdiagnoses the patient and applies the wrong treatment, which is an abuse of their duties. Throughout the entire treatment process, the doctor is obligated to exercise the necessary care and attention. As a result, regardless of whether the harm is material or moral, the doctor will be liable, and compensation may be awarded for both material and/or moral damages.

Av. Şefik ZİROĞLU & Öğr. Yasemin TOPSAKAL