In certain
circumstances, specific harms may arise when a medical intervention is not
performed in accordance with the requirements of medical science. In such
cases, the physician who performed the intervention, as well as the
administration, may be held liable. However, not every complication arising
after a medical intervention—namely, adverse outcomes that occur despite the
intervention having been carried out with due care and in compliance with
established rules—should be regarded as medical malpractice. Malpractice –
i.e. medical negligence - is assessed on the basis of various criteria in
determining the harm arising from a medical error. This article examines the
lawfulness of medical interventions, the distinction between malpractice and
complications, the liability of physicians and the administration following
malpractice, the liability of physicians working in the public and private
sectors, and the circumstances under which physicians are subject to
investigation authorization.
1. Lawfulness
of Medical Intervention
Although there
are numerous criteria for a medical intervention to be considered lawful, this
article will examine the four principal conditions for its lawfulness.
Accordingly, a medical intervention must remain within the objective and
subjective limits, rules, and standards of contemporary medical science. The
physician’s intervention must pursue a therapeutic purpose. The medical
intervention must be carried out by individuals duly authorized to practice the
medical profession. Finally, the patient must have given consent to the medical
intervention.
The
Court of Cassation has also adopted this view under one of its decisions,
stating: “If medical science permits the intervention performed by the
physician, then the physician is deemed to have engaged in an activity
authorized by the medical profession, and therefore, the act cannot be
considered unlawful on the grounds of the exercise of a right.” However,
the Court of Cessation has also observed that, with increasing emphasis on the
consent of the injured party, legal doctrine has gradually shifted toward a
consent-based theory¹.
The
primary basis of this view lies in the “freedom of science and arts”, as set
out under the Constitution (Art. 27). Although the source of this right is also
found under the applicable health regulations, it is most explicitly set out
under Article 13/1 of the Medical Deontology Regulation. According to this
provision, “a physician or dentist establishes a diagnosis and administers the
necessary treatment in accordance with the requirements of medical science. The
fact that such activities do not necessarily result in a cure does not give
rise to deontological liability.” Furthermore, custom and usage are also
regarded as sources of the right to perform medical intervention³.” [1]
The conditions,
scope, and details required for the lawfulness of medical interventions are
specified under the Patient Rights Regulation. Accordingly;
“g) (Supplemented:
OJ-8/5/2014-28994) Medical intervention: A physical and mental
procedure carried out by individuals authorized to practice the medical
profession, within the limits of medical science, in accordance with
professional obligations and standards, for the purpose of protecting health
and diagnosing and treating diseases,
ğ) (Supplemented:
OJ-8/5/2014-28994) Informed consent: The provision of necessary
information to the individual by the healthcare professional who will perform
any planned medical intervention prior to its execution,
h) (Supplemented:
OJ-8/5/2014-28994) Consent: The individual’s voluntary and informed
acceptance of a medical intervention.” [2]
The purpose of
any medical intervention must be to protect health, and to diagnose and treat
diseases. Such intervention must be carried out solely by individuals
authorized to practice the medical profession. The most important and final
requirement is the patient’s consent to the proposed medical intervention. If
the patient does not provide consent, the intervention cannot be considered
lawful, even if it is deemed necessary for the patient’s health.
“In
my view, what renders medical interventions lawful is the fulfillment of all
the conditions outlined at the beginning of this study. Accordingly, the
intervention must be performed by a physician, there must be a valid medical
indication and informed consent, and the physician must carry out
the intervention in accordance with the requirements of medical science,
exercising due care and diligence. In fact, the requirement of medical
indication constitutes a constitutional condition (see Art. 17/2). Both the
requirement that the intervention be performed by a physician (Art. 1-4 of the Law
on the Practice of Medicine and Medical Sciences) and the requirement of
consent (Art. 70 of the Law on the Practice of Medicine and Medical Sciences; Art.
6 of the Law on the Removal, Storage, and Transplantation of Organs and
Tissues; Art. 4 of the Population Planning Law; additionally, the Art. 5 of the
Convention on Biomedicine; Art. 5, 25 of the Patient Rights Regulation) are
legal conditions. Consequently, with respect to these three requirements, the
“execution of a statutory provision” is effectively fulfilled.”
The patient’s
consent alone does not render a medical intervention lawful. For consent to be
valid, the patient must be adequately informed about the nature of the
intervention, its risks, potential complications, alternative treatment
options, and the consequences of not undergoing the intervention. The scope and
effect of the consent are determined by the extent of the information provided
during the disclosure process.
2. Distinction
Between Malpractice and Complications
Not every harm
or adverse outcome arising after a medical intervention should be regarded as
malpractice. Even when all necessary care and diligence are exercised, and the
intervention meets the conditions of lawfulness, unforeseen or, if foreseen,
undesired results may still occur. In such cases, the normal risks recognized
by medical science manifest as complications.
“…
In the case reviewed on appeal, the reports obtained within the file and the
expert reports, including those from the Council of Forensic Medicine,
indicated that the intramuscular Dicloron injection administered to the
plaintiff due to leg pain was medically indicated, and when the clinical and
laboratory data were evaluated together, the nerve damage observed after the
intramuscular injection was consistent with injection neuropathy, and it is
medically recognized that, in such injection procedures, the tissue
distribution of the injected drugs can, albeit rarely, cause nerve damage, and this
risk may materialize even when the injection is performed correctly according
to technique, and it is thus classified as a complication that can occur
despite all due care and diligence, and therefore, assuming the court accepts
that the injection was administered to the correct site, the injection
neuropathy developed in the individual constitutes a complication rather than
malpractice, and when all findings are evaluated as a whole, no medical error
was attributed to the physician supervising the treatment or to the healthcare
personnel who administered the injection, and, based on the documents under the
file, no apparent fault was found on the part of the administration providing
services through healthcare staff, and although an informed consent form was
not present under the file, according to Article 70 of the Law on the Practice
of Medicine and Medical Sciences and the Circular, Nr. 2019/11 and dated
10.06.2019, of the Directorate General of Health Services of the Ministry of
Health, verbal information is considered necessary and sufficient for injection
procedures, as they do not constitute major surgical operations, and
accordingly, it was stated that when the patient’s current treatment,
prescribed by the attending physician, is administered by authorized healthcare
professionals after reviewing the patient’s prescription, obtaining written
consent is not mandatory. Furthermore, for compensation of material and moral
damages, fault, harm, and causation must coexist. Since the condition observed
in the plaintiff was classified as a complication, it is evident that no fault
existed. Consequently, the plaintiff’s counsel’s appeal was rejected, and the
decision, found to be in accordance with procedural and substantive law, was
upheld …” [3]
As evidenced by
the aforementioned Court of Cassation decision, if a medical intervention is
carried out lawfully and all duties of care and diligence are fulfilled, any
resulting harm cannot be classified as malpractice. Such occurrences are
defined as complications. Even when all obligations of care are observed during
a medical intervention, unforeseen or, if foreseen, unavoidable and undesired
outcomes may still arise, and these are to be regarded as complications. The
Council of State has categorized medical intervention fault under three main
headings: fault arising from the procedure itself, organizational or
coordination deficiencies, and fault in informing the patient, and thus in
obtaining explicit consent. Under the decision of the Council of State cited
below, the concepts of complication and malpractice are also clarified.
“Erroneous
Medical Practice (Malpractice):
Article
13 of the Turkish Medical Association’s Rules of Medical Ethics defines medical
error. Any physician intervention that lacks the due care required according to
the standards and experience of medical science, and therefore appears
inappropriate for the situation, is understood as a practice error
(malpractice). In other words, failure to follow standard procedures,
lack of knowledge and skill, or the application of inappropriate treatment
during the diagnosis and treatment of a patient may be defined as a medical
error. In this context, the liability arising from an erroneous medical
practice constitutes ‘fault-based general liability. In terms of
the physician’s legal liability, the standard of care is measured against that
of an experienced specialist physician. Objectively, the physician must be
capable of foreseeing potential harm to the patient’s health based on the
normal course of events, and subjectively, according to their personal
experience, skills, individual professional knowledge, and the quality and
level of their education. At this point, the duty of care comes to the fore.
The breach of a physician’s duty of care is concentrated in three areas: first,
in the treatment of the patient, including diagnosis, determination of medical
indication, selection and application of medical measures, and post-treatment
or post-surgical care; second, in informing the patient and taking the medical
history; and third, in clinical organization, including the qualification of
personnel, maintaining an adequate number of staff, and cooperation among
physicians (consultations). Fault in these three areas can be respectively
classified as procedural error (error in treatment), fault in patient
information, and organizational fault. Collectively, these three types of fault
are referred to as “Medical Practice Error” (Malpractice).
At this point, the concept of medical standards should be clarified. The term
‘medical standards’ refers to the generally recognized and accepted
professional rules within medical science. Violations of medical standards can
occur in various ways, including diagnosis, treatment (such as lack of
indication or selection of an inappropriate treatment method), and
post-intervention care management.
Complication: A complication is an unforeseen or, if foreseen,
unavoidable and undesired outcome during a medical intervention; however, it
must not result from a lack of knowledge or skill. According to this
definition, a physician who acts within the medically accepted normal risks and
deviations, exercising the necessary care and diligence, is not legally liable
for such undesired outcomes. A medical intervention is considered
lawful if the patient is informed of the undesired outcomes (complications)
that may occur during or after the procedure without any fault, and consents to
the intervention. If the harmful outcome to the patient is unforeseeable and
unavoidable, or even if it could have been foreseen but cannot be
prevented—provided that the patient has been adequately informed, consent has
been obtained, and no fault occurred during the procedure—this outcome should
be regarded as a complication. At this point, it is essential that there be no
deviation from medical standards and that the rules of professional experience
are observed. Furthermore, the diagnosis and treatment applied during the
post-complication process must also comply with medical standards. In this
context, the management of the post-complication process is important for
determining the presence or absence of service-related fault.” [4]
4. Liability of
Physicians Working in the Public and Private Sectors
In cases where
a medical intervention is alleged to have been performed erroneously, i.e., in
claims of malpractice, specific procedures exist for establishing the liability
of physicians working in public healthcare institutions as well as those in
private healthcare facilities or practicing independently.
a. Liability of
physicians working in public healthcare institutions
The activities
performed by physicians working in public healthcare institutions fall within
the scope of administrative functions. When public services are delivered by
the administration, the administration may be held liable for various harms
caused by the personnel performing these services. Healthcare services provided
by physicians in public institutions are included among these. Accordingly, the
administration is liable for damages resulting from the actions of physicians
working in public institutions. This liability arises from Article 125 of the
Constitution.
“Article 125 – Recourse to
judicial review shall be available against all actions and acts of
administration.”
In the event of
a malpractice claim against a physician working in a public institution,
provided that the claim does not rely on a personal fault unrelated to the
physician’s duties, the action arises from conduct performed during and in
connection with official duties, constituting service-related fault. In such
cases, the defendant in the lawsuit will be the administrative institution to
which the physician is affiliated. This type of dispute can be resolved in the
administrative courts.
“…
Moreover, if a public official’s conduct within or related to their duties
constitutes a criminal act, involves gross negligence while performing the
service, or intentionally harms someone due to hostility, political animosity,
or other malicious intent, this situation should also be considered a
service-related fault arising from the administration’s failure to fulfill its
supervision and proper staffing obligations. Consequently, any legal action in
such cases must be directed against the administrative institution …
Accordingly, since the claim does not rely on a personal fault of the defendant outside the scope of their duties, the act occurred during and in connection with the official duties, and constitutes service-related fault, the proper defendant in the present case is not the public official but the administrative institution. Therefore, the lawsuit should be filed against the administration, and the legal action must be directed at the administrative body...” [5]
b. Liability of
physicians in private healthcare institutions or independent practice
In the case of
physicians working in private healthcare institutions or practicing
independently, the relationship between the doctor and the patient is often
contractual in nature. Accordingly, the physician’s liability is generally
governed by the Turkish Code of Obligations. The defendant in such cases may be
the physician or the healthcare institution where they work. Disputes of this
nature are resolved in the judicial courts.
The
Decision, bearing the Basis number 2009/15373, the Decision number 2010/5157
and dated 15.4.2010, of the 13th Civil Chamber of the Court of
Cessation reads as follows:
“In
private hospitals defined under the Private Hospitals Law, the patient enters
into a contractual relationship with the hospital operator, and therefore the
physician’s contractual liability does not arise. The physician works under the
hospital operator; accordingly, the liability rests with the hospital operator.
In interpreting the hospital-patient service agreement, the provisions of the
agency contract are applied by analogy. Under the hospital admission
agreement, the hospital operator fulfills all healthcare services through the
staff employed by them. All services are performed by the hospital operator,
and since there is no contractual relationship between the patient and the
physician, the liability rests with the hospital operator.” [6]
The
Decision, bearing the Basis number 2008/969 and the Decision number 2008/6813 and
dated 14.11.2008, of the 15th Civil Chamber of the Court of
Cessation reads as follows:
“The
relationship between the plaintiffs and the defendant physician constitutes a
work contract, as set out under Articles 355 and et seq. of the Turkish Code of
Obligations. Any dispute between the parties must be resolved according
to the provisions governing work contracts. The plaintiffs assume the
role of the principal, while the defendant physician acts as the contractor.
The defendant physician undertook to perform nasal and chest surgeries for K1
and a nasal surgery for K2. All of these surgeries are for aesthetic purposes.
The defendant physician’s obligations are set out under Articles 356 and et
seq. of the Turkish Code of Obligations. The primary obligation of the
defendant is to perform the aesthetic surgeries in accordance with the
plaintiffs’ requests. If performing the surgeries exactly as requested by the
plaintiffs is not possible, the defendant physician has a prior duty to inform
and warn the plaintiffs. In this case, the defendant has failed to provide
evidence that such a warning was given. It is concluded that the defendant
physician did not fully fulfill their obligations, as evidenced by Plaintiff K1
undergoing a repeat aesthetic surgery of the same nature at X1 Hospital, and,
regarding Plaintiff K2, by the report dated 27.11.2006 issued by the 3rd
Expertise Committee of the Forensic Medicine Institute. The existence of
professional fault on the part of the defendant physician must be recognized.
In this case, it is necessary to hold the defendant liable pursuant to Article
96 of the Turkish Code of Obligations.” [7]
5. Physicians’
Requirement for Investigation Authorization
For healthcare
professionals who are public officials, complaints and reports cannot trigger a
direct investigation. Following the amendment published in the Official Journal
on May 27, 2022, the provisions of Law Nr. 4483 on the Trial of Civil Servants and
Other Public Officials, dated December 2, 1999, shall apply to investigations
concerning medical procedures and practices, including examination, diagnosis,
and treatment, carried out by physicians, dentists, and other healthcare
professionals working in public or private healthcare institutions and
foundation universities within the scope of their professional duties.
Law
on the Amendment of the Turkish Penal Code and Certain Other Laws:
“SUPPLEMENTAL
ARTICLE 18- Except for those subject to the investigation procedures, set forth
under Article 53 of the Higher Education Law, the provisions of Law Nr. 4483 on
the Trial of Civil Servants and Other Public Officials, dated December 2, 1999,
shall apply to investigations concerning medical procedures and practices,
including examination, diagnosis, and treatment, carried out by physicians,
dentists, and other healthcare professionals working in public or private
healthcare institutions and foundation universities within the scope of their
professional duties. Authorization for investigation is granted by the
Professional Liability Board established within the Ministry of Health. For
physicians, dentists, and other healthcare professionals working in private
healthcare institutions and foundation universities, the Professional Liability
Board may also assign the directors or deputies of provincial health
directorates to conduct a preliminary investigation. The time periods specified
in Article 7 of Law No. 4483 regarding the granting of investigation
authorization are applied twice. Decisions of the Professional Liability Board
may be appealed to the Regional Administrative Court of Ankara.”
In order to
initiate an investigation, authorization must be obtained from the
administrative authority. In compensation lawsuits, a case can be filed
directly. Offenses by physicians that are unrelated to their official duties
are not subject to this procedure.
A request for a
preliminary investigation must be submitted to the Professional Liability
Board. The authority empowered to grant investigation authorization is the
Professional Liability Board itself. The Board may conduct the preliminary
investigation personally or through authorized personnel (inspectors, officials
of the provincial health directorates, etc.). Based on the outcome of the
preliminary investigation, the Board issues a reasoned decision on whether to
grant or deny authorization for a full investigation. This decision may be
appealed to the Regional Administrative Court of Ankara in ten days.
Without
investigation authorization, a criminal investigation cannot be initiated
against physicians who are legally subject to such authorization.
6. Negligence, Causal Link, and Burden of
Proof
For liability
arising from medical malpractice; fault, damage, and causal link must coexist
in accordance with the general principles of tort law. In malpractice cases,
the most critical element is often the establishment of causal link, as it must
be demonstrated that the harm suffered by the patient directly resulted from
the physician’s negligent act.
Accordingly, the following elements must be considered
together:
- The physician’s conduct in violation of medical
standards (negligence)
- The harm
suffered by the patient
- The
appropriate causal link between the harm and the physician’s act
As recognized
in the practice of the Court of Cassation, the decisive factor in
distinguishing between a complication and malpractice is whether the harm arose
from an unavoidable risk or as a result of a breach of the duty of care. While
the burden of proof generally lies with the plaintiff, expert reports play a
decisive role in such disputes, particularly given their technical and
specialized nature.
Furthermore, in
cases of breach of the duty to inform, established case law provides that the
burden of proof shifts, requiring the physician to demonstrate that the patient
was adequately informed.
7. Assessment in Terms of Statute of
Limitations
The statute of
limitations for lawsuits based on medical malpractice varies depending on the
legal nature of the dispute and the judicial branch in which the case is filed.
a. Statute of
Limitations in Lawsuits Filed under Private Law
In lawsuits
filed against private healthcare institutions or independently practicing
physicians, the provisions of the Turkish Code of Obligations apply, depending
on the legal nature of the relationship between the parties.
In cases where the relationship between the physician and the patient is classified as a mandate contract or, in certain circumstances, as a contract for work, the statute of limitations is generally applied as:
- 10 years (TCO
Art. 146).
However, in cases where the medical intervention
constitutes a tort, the statute of limitations is applied as follows:
- 2 years as of
the date the damage and the perpetrator are discovered
- In any case,
10 years as of the date the act occurred (TCO Art. 72).
Therefore, in a
given case, correctly determining whether the relationship between the parties
is contractual or constitutes a tort is crucial for establishing the applicable
statute of limitations.
b. Statute of
Limitations in Lawsuits Filed Against Public Healthcare Institutions
Lawsuits
arising from medical interventions performed in public hospitals are heard in
the administrative courts, as they are based on the administrative liability of
the institution.
Accordingly, , pursuant to Article 13 of the Code of Administrative
Procedure Nr. 2577: an application must be submitted to the administration
- in 1 year as of the date the damage is discovered
- in any case, in
5 years as of the date of the act.
Following the
rejection or implicit rejection of the application submitted to the
administration, a full remedy lawsuit may be filed in the administrative courts
within the prescribed period for initiating legal action.
c. The
Importance of Statute of Limitations in Practice
In malpractice
cases, the statute of limitations can lead to the dismissal of a lawsuit
without examining its merits, and it is a procedural objection frequently
encountered in practice.
In particular, the following are crucial for
determining the commencement of the statute of limitations:
- Establishing
the date on which the damage was discovered
-
Distinguishing between a complication and malpractice
- Determining
when the medical process was completed.
Therefore, in
each individual case, the statute of limitations must be carefully assessed,
and the litigation strategy should be planned accordingly.
CONCLUSION
The lawfulness
of a medical intervention depends on it being performed by an authorized
practitioner, compliance with medical standards, the existence of a proper
indication, and obtaining the patient’s informed consent. When these conditions
are met, any adverse outcomes are generally considered complications, and the
physician cannot be held liable.
Conversely, if
medical standards are violated, the required duty of care and diligence is
breached, and a causal link is established between this breach and the
resulting harm, malpractice occurs, giving rise to the physician’s legal
liability.
The competent
authority and the applicable judicial procedure vary depending on whether the
physician works in a public or private healthcare institution. Moreover,
legislative amendment introduced in 2022 linking criminal investigations of
healthcare professionals to a prior authorization system has established a
significant protective mechanism in practice.
Accordingly,
the assessment of malpractice cases should consider not only the existence of
harm but also its nature, compliance with medical standards, and the causal
link together.
Att. Şeymanur
Elmas
References:
1. Hakeri, Tıp
Ceza Hukuku (Medical Criminal Law), p. 31
2. Patient Rights
Regulations (Date of the Official Journal: 01.08.1998 Issue: 23420)
3. Decision,
bearing the Basis number 2025/3862, the Decision number 2025/4767 and dated 13.10.2025,
of the 3rd Civil Chamber of the Court of Cessation
4. Decision,
bearing the Basis number 2015/6119 and the Decision number 2015/5733, of the
Fifteenth Chamber of the Council of State of the Republic of Türkiye
5. Decision, bearing the Basis
number 2014/77, the Decision number 2015/1712 and dated 19.6.2015, of the
General Assembly of Civil Chambers of the Court of Cessation
6. Decision,
bearing the Basis number 2009/15373, the Decision number 2010/5157 and dated 15.4.2010,
of the 13th Civil Chamber of the Court of Cessation
7. Decision,
bearing the Basis number 2008/969, the Decision number 2008/6813 and dated 14.11.2008,
of the 15th Civil Chamber of the Court of Cessation
