Physician Liability and Medical Interventions
Physicians can only be held liable for the procedures they perform due to their mistakes. In medical interventions, it may be possible for a damaging result to arise for the patient at any time. Even if the necessary interventions have been carried out by the physician and care and attention have been taken, deviations of medical interventions and damages may occur due to the medical intervention, while in some cases, such damages and deviations may occur due to the physician’s fault.
Article 13 of the Code of Professional Ethics for Physicians regulates malpractice, i.e. malpractice.
Differentiating Malpractice from Complications
As a result of malpractice, the physician will be criminally and legally liable, but these responsibilities cannot be mentioned in case of complications, that is, if a new disease or problem occurs with the treatment applied in addition to the patient’s existing disease.
Although today’s technology is advanced and state-of-the-art, there are still many uncertainties in the medical world. In addition, psychology and physiology vary from person to person, the same disease may show different symptoms in each person, and different treatment methods may need to be applied. The physician and the relevant health institution will not be held liable for the procedure in question if negative results occur contrary to what is expected despite acting in a manner required by medical science and in a manner that is not contrary to the rules. In cases where there is fault on the part of the physician and the relevant health institution, criminal and civil liability will arise.
Article 13 of the Turkish Medical Association (TMA) Code of Professional Ethics for Physicians regulates malpractice of medicine, and the relevant article states that “Harm to a patient due to lack of knowledge, inexperience or indifference means “malpractice of medicine””. As it can be understood from the text of the article, malpractice/physician error is the case of a deviation in the existing disease of the patient as a result of the ignorance, inexperience, indifference, misdiagnosis and incorrect treatment arising from this indifference, incomplete treatment of the physician or health institutions that are the center of medical intervention, and causing a new disease.
Understanding Negligence and Liability
In cases where there is inexperience, ignorance and indifference by the physician and the relevant health institution in violation of the rules, in short, “negligence” is involved in malpractice. In the second paragraph of Article 22 of the Turkish Criminal Code No. 5237, the definition of negligence is given with the provision “Negligence is the realization of an act without foreseeing the consequence specified in the legal definition of the crime due to violation of the obligation of attention and care.” Malpractice will result in negligent injury and negligent homicide. As a result of the death or injury of the patient as a result of malpractice committed by the physician or the health institution due to negligence, the provisions of Article 85 or 89 of the Turkish Penal Code will be applied in the criminal dimension. In the legal dimension of malpractice, compensation provisions will be applied to the physician.
Malpractice will be in question if the treatment applied or expected to be applied as a result of the disease is below the standards of treatment that has been applied completely correctly or if it is excessive, and it can be realized by an executive or negligent act. In other words, in order for the legal and criminal liability of the physician to arise, there may be a violation of the duty of care, as well as if the necessary medical intervention is not performed at all. For this reason, there is no difference whether the act that causes malpractice is performed through an executive or negligent act.
The Principle of Fault in Medical Interventions
The “principle of fault” plays a major role in medical interventions and malpractice. The physician’s fault is generally manifested in three areas:
- – During the treatment of the patient (diagnosis, determination of the medical intervention to be applied, surgery and post-treatment care)
- – During clarification and notification of the defect and during the preliminary inspection
- – Regarding the provision of appropriate conditions for the patient (sufficient and qualified personnel in the health institution, availability of medical equipment and equipment necessary for treatment, cooperation between physicians and personnel who are obliged to help)
Conditions for Determining Physician Fault
Malpractice occurs in all three areas mentioned above. In order to talk about the physician’s fault due to negligent acts, certain conditions must be met. These conditions are:
Although the physician is in a situation where he/she can show the necessary care and attention according to the knowledge and experience that he/she has acquired or should have acquired in line with his/her personal characteristics and abilities, if he/she fails to show the said care and attention, the defect condition in which malpractice is in question is realized.
If the result that occurs in the patient as a result of the medical intervention is a foreseeable result, another one of the fault conditions for malpractice will be realized. In this case, the physician must be able to know in advance the damage that will occur in the patient’s health due to the equipment and position of the physician.
As can be understood from the conditions required for the realization of fault, the criterion taken into consideration for the physician’s fault to be in question is the element of subjectivity. For example, the physician cannot be subjectively expected to fulfill his/her duty of care as a result of the surgery he/she deems necessary in a situation where it is not possible for the physician to have prior knowledge about the patient and the existing disease, and it cannot be mentioned about the emergence of a responsibility of the physician in this direction.
Evaluating Physician Responsibility and Training
For each physician, an assessment will be made in this regard, taking into account his/her current position and equipment. In short, in cases where the physician is expected to show care and attention, fault liability may be in question, while fault cannot be mentioned in cases where the obligation to show care and attention cannot be expected.
For example, it cannot be said that a physician serving in a health center and a university professor are in the same position and have the same knowledge and experience. In addition to this, it should be noted that no physician can be held criminally and legally liable for compensation on the grounds that he/she received inadequate training at the medical faculty where he/she was educated, that he/she does not have sufficient experience, and that he/she cannot follow the medical developments in his/her field. In this case, only in the determination of the fault and the criminal dimension of the incident, a change can be seen in the ratio of the amount of the penalty or compensation in question.
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