In recent years, our country has become very popular internationally in terms of aesthetic operations. According to the data of the International Society of Aesthetic Plastic Surgery (ISAPS), it ranks sixth in terms of surgical and non-surgical aesthetic interventions. The scope of these aesthetic interventions is very wide and we can count procedures such as hair transplantation, fat grafting / fat removal, nose beautification surgeries in this context.
In this article, the relationship between the physician and the patient in aesthetic operations and the legal responsibility of the aesthetic physician are examined.
Legal Nature Of The Contract Between The Physician And The Patient
According to the generally accepted view in the doctrine, the relationship between the patient and the physician is in the nature of “contract of agency” (Although there are some authors who characterize the contract between the physician and the patient as a contract of work, atypical contract, contract of service, we will not enter into this discussion in our article).
Article 502 of the Turkish Code of Obligations defines an agency contract as follows: “A contract of attorney is a contract whereby the attorney undertakes to perform an act or perform a transaction of the principal.” In power of attorney agreements, the element of “trust” is very important as the agent will be an expert in his/her field. In addition, due to the nature of the contract, the principal does not have the opportunity to supervise the works and transactions carried out by the agent for the performance of the contract. Likewise, in the contract between the physician and the patient, the patient does not have the opportunity to supervise the actions of the physician, and must rely on his professional knowledge and experience. In the contract between the physician and the patient, there is a process commitment, not a result commitment, as required by the power of attorney contract.
Differentiating The Nature Of The Contract Between The Aesthetic Physician And The Patient
Aesthetic operations involve different paradigms from general surgical operations due to the nature of the work. This issue has caused the contract regarding aesthetic operations to be characterized differently from general surgical interventions in Turkish doctrine. Due to two different situations, the contract between the physician and the patient in aesthetic surgery will be characterized differently;
- Aesthetic surgery is performed out of medical necessity
- Aesthetic surgery for the sole purpose of beauty
According to the doctrine and jurisprudence of the Court of Cassation, if the aesthetic intervention is performed as a result of a medical necessity, the relationship between the patient and the physician is within the scope of the power of attorney contract, which we have explained in detail above, and the physician’s liability arises within this scope.
As a matter of fact, if the intervention is performed solely for the purpose of beautification and with aesthetic concerns, a “contract of work” will arise between the physician and the patient.
According to Article 470 of the TCO, a work contract is a contract in which the contractor is obliged to create something in return for a price. In terms of aesthetic surgery, the concept of “work” is the “result” that the physician undertakes to produce on behalf of his patient. This result may manifest itself as a beautiful nose or new hair as a result of hair transplantation. The fact that the physician is responsible for the “result of the operation” in addition to being responsible for the work and procedures performed by the physician in accordance with the operation is one of the situations that distinguish aesthetic physicians from other physicians.
Obligations Of The Aesthetic Physician
In Turkish law, the obligations imposed on physicians can be listed as ‘Duty of care, duty of notification, duty of diagnosis, duty of confidentiality, duty of personal treatment, duty of disclosure’.
Physicians also have responsibilities arising from contractual obligations. In order to determine these liabilities, it is important to determine which type of contract the relationship between the physician and his/her patient is based on.
According to the provisions of the power of attorney contract, the obligations of the agent can be counted as; the obligation to show due diligence while performing the work, the obligation to perform the work faithfully, the obligation to perform the work in accordance with the instructions of the principal, the obligation to perform the work assigned to him personally, and the obligation to account. Consequently, in the relationship between the physician and the patient, the physician will be civilly or criminally liable to the patient if he/she fails to comply with these obligations. Within the scope of this responsibility, the physician may be ordered to pay compensation or be punished if his/her actions are of a criminal nature.
Moreover, in accordance with the nature of the power of attorney contract between the physician and the patient, the physician must personally see the work. According to Article 504 of the TCO, the manner and conditions under which the attorney will carry out the work shall be determined by the contract between the parties. However, if the parties do not determine this, then the scope of the power of attorney is determined according to the “nature of the work”. In the relationship between the patient and the physician, since the patient cannot know the requirements of the medical field, the physician will determine the works to be performed within the framework of the duty of care and loyalty.
In cases falling within the scope of a contract of work, certain ancillary obligations are also imposed on physicians due to the nature of the contract. The obligation to avoid unnecessary risk is a comprehensive manifestation of the physician’s duty of loyalty and care. It is obvious that every medical intervention involves serious risks. As a matter of fact, the physician must observe the balance between the risk and the expected benefit of the intervention in the treatment to be applied to the patient. In this context, the physician is obliged to choose the least risky method. The obligation of consultation refers to the obligation of specialized physicians to work together in patients involving more than one specialty. Interdisciplinary work is necessary for accurate diagnosis and appropriate treatment. Physicians are also obliged to respect the privacy of patients. As a matter of fact, according to Article 21 of the Patient Rights Regulation; “It is essential that the patient’s privacy is respected. The patient may also explicitly request that his/her privacy be protected. All medical interventions are carried out with respect for the patient’s privacy. ” In addition, in order for the medical intervention to be lawful, the consent of the patient must be obtained in accordance with the law. The lawfulness of the consent depends on the physician’s compliance with the duty of disclosure.
Liability for Damages in Case of Breach of the Duty to Inform
There are many risks in surgeries performed for aesthetic purposes. In order for physicians’ medical interventions to be lawful, the patient must be diagnosed in advance and the patient must be informed about the treatment to be applied and the possible risks. As a matter of fact, according to Article 18 of the Patient Rights Regulation, “Information shall be given in as simple a manner as possible, without hesitation or doubt, and in a manner that the patient can understand in accordance with his/her social and cultural level.” The burden of proving that this obligation has been duly fulfilled lies with the physician. The physician who fails to prove that he/she has obtained informed consent and the consent of the patient will be legally liable and will be obliged to compensate the patient’s damages.
Physician’s Contractual Liability
The physician is obliged to produce the result that he/she has undertaken under the “contract of work”. In this context, the physician has the obligation to fulfill his work with great care. The burden of proof is on the physician to prove that he fulfills his duty of care. The physician must prove that he/she has shown the care of an average physician in his/her interventions. Otherwise, the patient may file a malpractice lawsuit and request compensation for the damages. Within the scope of breach of contract, the patient will be able to claim from the court; In addition to material compensation claims such as treatment costs, loss of earnings, loss of earning power, loss of working power, damages arising from the shaking of his economic future, he will also be able to claim non-pecuniary damages due to the distress caused by the undesirable appearance caused by the aesthetic intervention.
Criminal Liability of Physician
Criminal liability may arise as a result of the physician’s actions. For example, if the patient loses his/her life as a result of the physician’s negligent act; it constitutes the crime of negligent homicide and the physician may be punished as a result of the criminal case opened.
Similarly, if the aesthetic physician shares the patient on social media without the consent of the patient, the crime of privacy may occur.
Physician’s Liability arising from Wrongful Act
Tort liability is a general liability regulated under the Code of Obligations and includes the elements of “illegality, fault, damage and causal link”. In other words, if the patient is harmed as a result of the physician’s negligent behavior during the intervention, tort liability may be invoked. The physician’s negligent behavior may occur by violating a rule of law that prohibits the harmful act or by harming another person with an immoral act even if there is no prohibitive rule of law. Fault may be caused by intent or by a breach of the duty of care. However, in cases of force majeure, damage caused by the patient’s own fault or the fault of a third party, the causal link will be severed and the physician will not be liable.
In cases where there is no contract between the physician and the patient, this type of liability may arise in the event of the occurrence of the conditions, or if there is a contract, but the damage has occurred as a result of the breach of the contract, or if the damage has occurred as a result of the physician’s negligent behavior in a matter that is not regulated in the contract, this type of liability may be applied. However, this time the burden of proof of fault will be on the patient, not the physician.
It should also be noted that in cases where the physician works in a private hospital within the scope of a service contract or as a civil servant in a state-owned health institution, tort liability will arise since there will be no direct contractual relationship between the physician and the patient.
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