WHAT ARE MALPRACTICE LAWSUIT?

Malpractice lawsuits are an increasingly important issue not only in our country but also all over the world. This concept becomes more and more complex and multidimensional as medical ethics, law, economics and many other disciplines get involved and the press deals with the issue in a sensational way. Malpractice cases, which are also frequently featured in the media, are followed with interest by the public. In this article, we tried to answer frequently asked questions about the malpractice case.

WHAT IS MEDICAL MALPRACTICE?

Malpractice is called “medical practice failures”. Malpractice can be defined as any result that causes harm to the patient, resulting from the negligence, incompetence or intervention of the healthcare worker or the organization against the standards. According to this definition, not all negative results can be defined as malpractice. In the medical intervention process, the results that occur within the limits of the allowable risk, without the fault of the healthcare worker, are called complications.

The boundaries of what should be done for complications are drawn with scientific standards. Likewise, malpractice has been defined ethically and legally. Therefore, generalizations and statistical information should be avoided when discussing the outcome of a medical intervention.

WHAT ARE THE REQUIREMENTS FOR THE MALPRACTIS DEFENDANT?

In the broadest definition of medical intervention; It can be defined as “any activity performed by a authorized person to practice the medical profession for diagnosis, preventive medicine, treatment, pain relief and similar purposes and carried out within the framework of the accepted and applied standard in medical science”.

• Since the concept of medical intervention has such a wide spectrum, the consent of the patient is required.
• In addition, a harm should occur to the patient as a result of the application. In other words, there must be a causal link between the medical intervention and the resulting damage.
• The damage resulting from the medical intervention must have resulted from the doctor’s or health worker’s treatment, incompetence or negligence, which does not comply with the standards.
• This resulting damage should be preventable and predictable. Unpredictable and unavoidable consequences remain within the limits of “accepted risk”. This situation is defined as a complication, not malpractice.

Depending on the time of medical intervention and other factors, malpractice occurs in various ways.

• In the Diagnosis Phase: It is seen that the health worker performs the examination incompletely or incorrectly, the patient’s disease process is not taken into account, and the necessary examinations are not performed on the patient.
• During the Treatment Phase: It occurs in the form of not doing the necessary intervention to the patient or applying the wrong treatment, giving the wrong medicine, forgetting the foreign substance in the patient’s body during the operation, confusing the patient or the organ to be intervened, not following the hygiene and cleaning rules.
• In terms of hardware, equipment or organization: The team that will perform the medical intervention must be experienced. What should be understood from experience is not a reasonable team, but a good team. In addition, it is necessary to regularly maintain the technical devices, vehicles or other equipment used during the medical intervention.

IN WHICH COURTS ARE MALPRACTIS CASE HELD?

In cases of medical malpractice occurring in public hospitals, the court in charge is the administrative court. In case of medical malpractice as a result of work or power of attorney contract, the competent court is the consumer court. However, if the doctor sues the insurance company due to medical malpractice, the court in charge will be the commercial court of first instance.

In malpractice cases, the court of general jurisdiction is the court of the defendant’s domicile at the time the case was filed. In the case of pecuniary and non-pecuniary damages due to the doctor’s fault arising from the work or the power of attorney agreement, a lawsuit may also be filed in the consumer court in the place where the contract will be executed. According to the Law on the Protection of the Consumer, malpractice lawsuits can also be filed in the consumer’s place of residence.

In malpractice cases based on torts, it is as follows;

• In the court of the place where the wrongful act was committed,
• Where the damage occurred
• It can be filed at the residence address of the injured person.

LEGAL RESPONSIBILITY OF THE DOCTOR IN MALPRACTIS CASES

The relationship between the patient or patient’s relative and the physician can be established in many different ways. Compensation lawsuits filed due to medical malpractice may be based on a contract established between the physician and the patient, tort or acting without a power of attorney.

• Malpractice lawsuit due to tort: ​​The doctor’s intervention to the patient, outside of medical standards, constitutes tort. Liability for tort comes to the fore only if there is no contract between the doctor and the patient. The most common example is the responsibility of the doctor who does not intervene with the patient coming to the emergency room.
• Malpractice lawsuit arising from the contract: The contract between the physician and the patient is accepted as a proxy contract both in the doctrine and in the Supreme Court decisions. Accordingly, the principal debt of the physician includes the commitment to cure the patient or to control the disease to the extent permitted by medical science. In case of breach of this commitment, the physician will be liable for the damages arising from the carelessness of his actions, actions and behaviors.
• Malpractice lawsuit in terms of the contract of work: If the contract between the doctor and the patient is to bring a work in the patient’s body, this contract is a contract of work. Prosthesis, plastic surgery, beauty applications can be given as examples of the contract of work.
• Malpractice lawsuit based on working without a power of attorney: If the doctor intervenes without the consent of the patient, it will be possible to work without a power of attorney. The doctor who works without a power of attorney will be responsible to the patient for all kinds of negligence. In practice, it arises when the powers arising from the power of attorney are exceeded. However, working without a power of attorney may be in question in emergencies and the expansion of medical intervention.
• Strict liability of State Hospitals: Health institutions operating under names such as state hospitals, family health centers, state university hospitals also have legal responsibilities. This responsibility arises from the understanding that the administration has to pay for the damage arising from its own actions and transactions. In addition, the impartial responsibility of the administration has been determined with the ability to apply to the judiciary against all kinds of actions and transactions of the administration.

GYNECOLOGY MALPRACTICE CASES

Obstetrics and gynecology are branches with a high risk of malpractice. Malpractice lawsuits are frequently seen in practice due to severe physical and mental disabilities resulting from medical intervention during childbirth, and even the consequences of death. Malpractice cases in the field of obstetrics generally consist of the following subjects:

• Forgetting foreign objects in the body
• Damage to another organ
• Ovarian cyst and high blood pressure,
• Post-operative complications
• Delay in treatment
• Fertility-reducing errors
• Physical and psychological damage.

DENTIST MALPRACTIS CASES

Sometimes a power of attorney and sometimes a work contract is established between the patient and the dentist. If the dentist does not make a commitment to the patient, a proxy contract is established. If there is a commitment, the contract of work comes to the table. For example, contract of work in cases of prosthesis or implants; A power of attorney agreement has been established in dental treatment.

According to the Supreme Court, the dentist will be considered fully responsible for all his faults. For this reason, the dentist has to pay all the damages suffered by the patient. However, if the patient is negligent or faulty in the formation of the defect, the compensation is discounted.

MALPRACTIS CASES ON NURSING

The responsibility of the health worker comes to the fore in all procedures that are carried out against scientific standards and cause harm to the patient. In practice, malpractice usually occurs when the nurse injects the patient, inserts serum, administers medication or dressing.

Drop foot syndrome is the most common case. In this case, the Supreme Court examines whether it is correct to apply the injection due to discomfort. At the same time, it also examines whether any errors exist. The determination of this situation is determined by the Forensic Medicine Institute or the committee formed by the members of the relevant department of the University hospitals.

COMPENSATION TIMELINED DUE TO DOCTOR’S FAILURE

The statute of limitations for filing a malpractice lawsuit based on fault of service in the administrative court against the state hospital, one year from the discovery of the doctor’s error, and in any case, within five years from the date of the event, a written application can be made to the relevant administration for pecuniary and non-pecuniary damages. The administration must respond to this request within 30 days. If the administration gives no or negative response within 30 days, the patient must be sued for malpractice within 60 days.

In malpractice cases based on the wrongful act of the patient, the doctor, the statute of limitations is two years and ten years in any case, starting from the date the injured party learned of the damage. However, in cases where the TPC stipulates a longer statute of limitations, the compensation is determined according to the statute of limitations for criminal proceedings.

MEDIATION IN MALPRACTIS CASES

According to the Official Gazette dated 28/7/2020, a mediation requirement was introduced for medical malpractice occurring in private hospitals. Accordingly, the patient who suffers from medical malpractice must first apply to the mediator.

Malpractice lawsuits are on the rise. For this reason, it has become an issue that is discussed all over the world and a solution is sought. In case of malpractice, which can be experienced frequently as a result of medical applications, you can contact us and get professional support.