In order to speak of the physician’s negligence in medical intervention, “medical standards” must not be applied by the physician. Failure to apply the standard in the medical intervention in question can be seen in different ways. To create a framework in general terms
- Making a clear mistake in diagnosis
- Incorrect, incomplete or incorrect medical intervention, i.e. the treatment to be applied
- Failure to provide the necessary care after the medical intervention
In such cases, it can be said that the standard practice in medical intervention has been violated, and the patient or the patient’s relatives will be entitled to compensation for the damage and a criminal action. In determining the medical standard in question; the time and place of the medical intervention and the possibility of the physician to apply this standard will be taken into consideration. In the decisions rendered by the Court of Cassation, it is stated that the medical standards must be determined in order to establish a judgment in the case.
As a result of the intervention that causes malpractice, the physician may be liable for compensation to the patient or the patient’s relatives in addition to compensation, criminal and administrative liability. As a rule, the compensation in question is paid to the patient, but in cases where the patient’s death is in question, the patient’s relatives will also be entitled to claim compensation. There will be two types of compensation.
Material Compensation
The patient may be entitled to financial compensation due to damages and deviations resulting from the intervention. In cases where material compensation is in question, the material damage suffered by the patient due to the medical intervention is compensated. For example, the type of compensation to be awarded in cases where the patient has to undergo a new surgery and the patient suffers loss of earnings due to the damage suffered is material compensation. Pursuant to Article 42/1 of the Code of Obligations, as a rule, the burden of proof of the damage required by the pecuniary compensation belongs to the patient who has been harmed by the medical intervention; in cases where the determination of the damage cannot be determined, the judge determines the pecuniary compensation in accordance with the characteristics of the concrete event in accordance with Article 42/2 of the Code of Obligations.
Moral Compensation
In cases where there is a damage or diminution in the personal characteristics and spiritual values of the patient, moral compensation is awarded. Examples of the right to moral compensation include the patient’s withdrawal from the society, the decrease in the will to live, and the pain suffered in line with the operations performed. The determination of moral compensation is quite difficult compared to the determination of material compensation. In this case, some issues such as the economic and social status of the parties to the case are taken into consideration by the judge.
In case of malpractice, it is not possible for the judge or lawyer to determine malpractice – complication in the lawsuit to be filed. An expert will need to be appointed to the file for the determination of malpractice – complication. It is generally seen that university faculty members from the relevant department are appointed as experts within the scope of the file. In cases, the file is generally referred to the Forensic Medicine Institute. In a decision rendered by the 13th Civil Chamber of the Court of Cassation, it was emphasized that in order to determine the fault of the doctor named in the incident, it is mandatory to conduct an examination with an expert board consisting of experts and, if necessary, to consult the opinion of the Forensic Medicine Institute.
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