Health Law & Malpractice | Wiklundkurucuk Law Firm https://www.wiklundkurucuk.com Istanbul Turkey Lawyers and Law Firms Mon, 12 Apr 2021 10:27:49 +0000 en-GB hourly 1 https://www.wiklundkurucuk.com/ https://www.wiklundkurucuk.com/wp-content/uploads/2021/03/cropped-favicon-32x32.png Health Law & Malpractice | Wiklundkurucuk Law Firm https://www.wiklundkurucuk.com 32 32 Medical Malpractice Law Firm Istanbul,Turkey WiklundKurucuk https://www.wiklundkurucuk.com/medical-malpractice-law-firm-istanbulturkey-wiklundkurucuk/ Mon, 12 Apr 2021 10:27:49 +0000 https://www.wiklundkurucuk.com/?p=226217 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post Medical Malpractice Law Firm Istanbul,Turkey WiklundKurucuk appeared first on Wiklundkurucuk Law Firm.

]]>

Medical Malpractice Law Firm Istanbul,Turkey WiklundKurucuk

Omur Boyu Ehliyet Donemi Sona Erdi

WiklundKurucuk consists of Turkish Medical Malpractice Attorneys and Malpractice Lawyers in Istanbul, Turkey specializing in Turkish Medical Malpractice Law.

Turkish Medical Malpractice Law Firm Istanbul Turkey  WiklundKurucuk has been providing legal services to a wide range of clients in Health Care Law, Pharmaceutical Law and Medical Malpractice Law for over 15 years.

Turkish Medical Malpractice Law Firm Istanbul Turkey WiklundKurucuk consist of medical malpractice lawyers in Istanbul, Turkey specialized in Turkish Medical Malpractice Law and Turkish Pharmaceutical Law.

Our medical malpractice attorneys in Istanbul, Turkey provide high quality legal assistance and legal representation to people and families who are victims of medical malpractice and medical negligence.

The negligence on the part of a medical professional can occur in a variety of ways some of which include: Retained foreign objects after surgery, surgery on incorrect body parts, birth injury, stroke, medication errors including improper medication or inaccurate dosage, poor follow-up or aftercare, premature discharge, disregarding or not taking appropriate patient history, failure to order proper testing, failure to recognize symptoms, anesthesia errors, misdiagnosis, delayed diagnosis, the wrong diagnosis or failure to diagnose, surgical errors, unnecessary surgery, wrong site surgery, misread or disregarded lab results etc.

Damages in Medical Malpractice Cases include medical bills, wage lost, loss of enjoyment of life, physical and mental pain and suffering, future earnings losses etc.

Turkish Medical Malpractice Law Firm Istanbul Turkey WiklundKurucuk has medical malpractice attorneys based in Istanbul, Turkey that specialize in all sub-branches of medical malpractice law and assist their clients with evaluating their case and what their legal rights are.

 

​SERVICES OF A MEDICAL MALPRACTICE LAW FIRM IN ISTANBUL

Malpractice: it refers to professional misconduct concerning medical, lawyer, or any other field. These days, medical malpractice is becoming one of the common terms that people are discussing. So, let’s find out:

  1.  What is Medical malpractice?
  2.  What are the services offered by medical malpractice law firms?
WHAT IS MEDICAL MALPRACTICE?

Medical malpractice happens when any medical clinic, hospital, doctor, or any other medical professional create a health-related problem for a patient. These health related issues occur because of the negligence of doctors or medical staff. The negligence may be the mistakes in treatment, diagnosis, and health management.

There are many strict rules formed by our government for the proper functioning of the medical field. And if you are the one who is suffering from any medical problem because of improper management of doctors and their staff, medical malpractice law firm Istanbul Turkey helps you with their best and expert lawyers.

 

WHAT ARE THE SERVICES OFFERED BY MEDICAL MALPRACTICE LAW FIRMS ISTANBUL TURKEY?

Here are the services that any medical malpractice law firm in Istanbul will provide you:

  •  offer you expert lawyers who work for you to solve your problems through a brief case study
  •  help you in taking testimonies of medical personal, experts, and other outsiders
  •  provide you complete records of respective medical case
  •  doing complete legal analysis and identifying the best solution for your case
  •  working with a lawful attendant to find out case merits and survey clinical records

If you and your family found any casualty of Medical malpractice, it is always great to consult with WIKLUNDKURUCUK Istanbul’s best medical malpractice law firm.

If you or someone from your family suffered an injury because of medical malpractice in Turkey please contact our skilled and experienced medical malpractice attorneys. Please call our office at +90 850 532 73 67 today.

The post Medical Malpractice Law Firm Istanbul,Turkey WiklundKurucuk appeared first on Wiklundkurucuk Law Firm.

]]>
Qualifications of Contract of Work in Aesthetic Medical Interventions https://www.wiklundkurucuk.com/qualifications-of-contract-of-work-in-aesthetic-medical-interventions/ Mon, 12 Apr 2021 09:20:50 +0000 https://www.wiklundkurucuk.com/?p=226178 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post Qualifications of Contract of Work in Aesthetic Medical Interventions appeared first on Wiklundkurucuk Law Firm.

]]>

Qualifications of Contract of Work in Aesthetic Medical Interventions

Omur Boyu Ehliyet Donemi Sona Erdi

In order to understand the legal qualifications of aesthetic medical interventions, first contract of work should be taken into hand. Contract of work is regulated in Article 470 of Turkish Code of Obligations: “Contract of work is the kind of contract that contractor agrees to emerge a work, in exchange party ordering the work agrees to pay a charge.”

Due to its characteristics, contract of work is a private law contract based on one party to make a work emerge and in return, other party to pay a price. The one who owns the debt of making a work come alive is the contractor, and the one who owns the debt of charge is the client.

Differencing from the agency contract, the important point in this contract rather than the work activity itself, is the emergence of an objective and realizable result that emerges with the work, rather than the business activity itself. The operations that cause creation of new form in human body such as aesthetic surgery, prosthesis, hand leg prosthesis, hair transplantation, dental aesthetics constitutes the subject of contract of work. Even if it does not guarantee the full intervention to be made, the content of the new appearance of the formation is specified to the patient.

While the physician is not liable for the failure of the treatment s/he applied according to medical rules and with care, in contract of work, the physician who is undertaken to achieve a certain result will be liable if s/he cannot.

Aesthetic surgeries, nose surgeries, preparation of dental prostheses and hair transplantation performed with the commitment of a certain result have the characteristics of creating.

Although the Court of Cassation does not find it appropriate to make a generalization in terms of all aesthetic surgeries, it has stated that it is possible to make a result commitment in some aesthetic surgeries, especially in cases where medical intervention is performed for the purpose of beautification rather than treatment, depending on the nature of the aesthetic surgery to be performed and the patient’s condition.

In the decision numbered 2009/5712 E. – 2009/6219 K., which was made by the 15th Legal Department of the Court of Cassation on 16.11.2009, it is stated that even if it includes a treatment purpose, to achieve an aesthetic appearance is the main and dominant purpose of the intervention, that all aesthetic medical interventions performed by dentists are the contract of work and its decisions regarding such interventions are based on the provisions of the contract of work.

6. Physician’s Obligations Against the Patient based on Medical Agreement
A. Physician’s Obligations due to Medical Contract

 

  1. Duty of Loyalty and Care

The relationship between the physician and the patient will be applied to the extent that it complies with the agency agreement. Pursuant to paragraph 2 of Article 506 of the Turkish Code of Obligations regulating the debt of personal performance, loyalty and care, the agent is obliged to carry out the works and services s/he undertakes with loyalty and care, taking into account the rightful interests of the principal. In the 3rd paragraph of the same article, regarding the responsibility arising from the duty of care, the liability criterion of the agent is determined as the behavior of a prudent agent who has undertaken similar works and services.

In order to prevent the patient from being harmed, to consider the general condition of the patient, to examine the current symptoms, to choose the right treatment way for the patient, to do not put the patient at risk, to take all kinds of precautions in his/her treatment, to carry out researches that will eliminate this hesitation in cases where there is even a small one and take protective measures, to do application in accordance with the rules of medical science, to fulfill the professional conditions in medical studies, to show the attention and care that can be attributed to anyone according to their professional and life experiences are the requirements of the duty of loyalty and care expected from the agency, which is the physician in this case.

  1. Personal Obligation of Deed

As a debt arising from a medical contract, the physician is obliged to treat his patient him/herself. The same rule is also valid for the physician to diagnose.

According to the Article 506 paragraph 1 of Turkish Code of Obligations, the agency is obliged to carry out his debt in person, to make another do the work is only possible in cases where the agency is authorized, the situation makes it compulsory or the custom is appropiate.

The physician can use auxiliary persons while making a medical intervention. In Article 83 of the Turkish Code of Obligations, it is stipulated that the debtor is not obliged to fulfill the debt personally unless the creditor has an interest in the execution of the debt by the debtor himself.

In terms of the responsibility of the assistant person, the employer can be held responsible in accordance with the liability of the employer regulated in Article 66 of the Turkish Code of Obligations or the liability of the acts of the assistant persons regulated in Article 116 of the same law.

  1. Physician’s Other Obligations Against the Patient

The physician has an obligation of learning the patient’s medical history.

In order to determine the findings and make the correct diagnosis, the physician must examine the patient with modern diagnostic tools and modern in scope of the examination debt, which is a part of the diagnosis and is one of the fundamental obligations of the physician.

Diagnostic obligation can be defined as the decision of the physician as a result of the visual and physical examination of the patient, and the recognition of the disease. It is important to make the treatment planning by making the diagnosis correctly, to decide on the treatment to be applied to the patient and to ensure that this treatment is the right treatment.

What the treatment debt means for the physician is to make a diagnosis based on his professional knowledge and experience after learning the patient’s history and doing examinations, and moreover to determine the most favorable, technologically advanced, the most economically reasonable and the least painful treatment method and to obtain informed consent of the patient in determining the treatment method.

The obligation of prescribing is one of the debts of the physician arising from the medical contract, which includes the request of the physician addressing the pharmacists to give a medicine to the patient. Prescription is accepted as a document in the sense of criminal law.

The debt of using medical technique arises from the obligation of physicians and assistant medical personnel to know how to use the technical tools developed in medical science. In addition to this debt, the physician and the hospital are obliged to use modern and functional technical tools, as well as control obligations.

In aspect of record keeping obligation, information about the surgery or treatment performed by the physician, including care services should be taken under record in a careful, detailed way, which another of the side obligations arising from the medical contract. The physician has the obligation to regularly record the information about the patient to whom he has undertaken his/her treatment and to undertake medical intervention, and to keep these records and other documents.

In scope of duty of confidentiality, the physician is obliged to keep secrets s/he learned about the patient during the medical intervention or the patient’s treatment, and not to reveal them to third parties. The obligation of secrecy is a debt that does not end with the end of the medical activity and must be followed until death in terms of physicians and those who work alongside physicians.

The physician and the hospital are obliged to explain the patient about the use of the medicine, to ensure the correct use of the medical products and drugs, and to warn the patient about the possible risks and side effects of these products and drugs.

The obligation to develop professional knowledge, which is a debt arising from the medical contract, is provided by in-service training. By duly fulfilling this debt, the physician will update his professional knowledge and guarantee standard practice.

  1. Obligations of the Physician in Terms of Interventions Subject to Contract of Work

Although the physician’s obligations arising from the medical contract against the patient are also valid for the aesthetic interventions subject to the contract of work, I will talk about other debts specific to the contract of work.

7.1.      Obligation of Creating and Delivering the Work

As mentioned above, in contract of work, the contractor has the obligation to create the work as specified in the contract and deliver it to the party ordering work, as a result of him/her being liable of the result. As seen, the debt of creating work is clearly regulated as a essential element of the contract of work in Article 470 of Turkish Code of Obligations.

In terms of aesthetic medical interventions subject to contract of work, satisfaction of debt will happen only when the promised result occurs.

Cases where the promised result does not occur it will be accepted as failure of fullfilling the debt whereas cases where the result does not occur as it should have been will be accepted as positive violation of contractual duties.

In cases, which the relationship between the physician and the patient is subject to the contract of work, the contractor physician has the obligation of starting and finishing on time as per the contract between him/herself and the patient. This debt also includes cases where the performance of the physician is delayed according to the terms of the contract although the physician has started working on time and the delay in question makes the completion of the work impossible due to the delay during the performance of the work.

The patient’s exercise of the right to withdraw from the contract will only be possible when the physician’s default in the fulfillment of the contractual debt is not justified.

7.2.      Personal Obligation of Deed

Regulated in the first sentence of Paragraph 3 of Article 471 of Turkish Code of Obligations, the basis of this obligation is the importance of the character, abilities and skills of the contractor who created the work in the contract of work. For this reason, since there is the execution in person rule in the contract of work, the contractor is obliged to do the work personally or to have it done under his/her management.

In the contract of work, since there is the execution in person rule, in cases where the contractor does not do the work personally or have it done under his/her management, s/he will be liable against the party ordering the work.

7.3.      Obligation to Provide Tools, Equipment and Materials

According to Turkish Code of Obligations Article 471 where the obligations of the contractor is regulated, in paragraph 4 it is stated that the liability to provide tools, equipment and materials belongs to the contractor unless the there is an existence of a custom or an agreement. In terms of the medical interventions performed by the aesthetic surgeon, it is not possible for the patient, who does not have knowledge and expertise about the medical intervention to be applied, to supply the materials and tools to be used or to make a choice regarding the tools and materials, even if it is regarded as an instruction. For this reason, the regulations stipulated in law about the party ordering the work to prove materials, will not apply to medical interventions done by physicians.

In the contract of work in which the material is provided by the contractor, if the material is defective, it is adjudged in Article 472 of the Turkish Code of Obligations that the contractor is liable to the party ordering work as a seller.

7.4.      General Notice (Notification) Obligation

In accordance with the first paragraph of Article 482 of the Turkish Code of Obligations, if it is understood that the approximate price determined at the beginning for the work to be created will be excessively exceeded, the contractor must immediately notify the party ordering work. As an obligation arising from the contract of work, the contractor is obliged to notify the employer of the existing negative and important issues on time.

In terms of aesthetic interventions, the plastic surgeon has the obligation of notifying the patient if the intervention will not be possible due to the unsuitability of the body structure by determining whether the patient’s body structure is suitable for the intended medical intervention before or during the intervention. The physician who fulfills this obligation will not be held liable in accordance with the provisions of liability arising from the fault due to the failure to achieve the intended result.

7.5.      Liability for Defects

Along with the obligation of producing the work by the contractor and delivering it to the employer, creating this work without any defects constitutes the principal debt of the contractor. This issue is regulated between articles 474-478 of the Turkish Code of Obligations.

In cases where the relationship between the physician and the patient is regarded as a contract of work, the implementation of the liability for defects will be possible by comparing the situation before the aesthetic medical intervention performed on the patient with the situation after the intervention.

The first condition for the contractor to be held responsible for the work s/he produced is being defective, will be possible by delivering the completed work to the party ordering the work as stated in Article 474 of the Turkish Code of Obligations.

The other condition is that the completed and submitted work is being defective. The absence of the qualifications agreed in the contract between the parties or the existence of the deficiencies in the required qualifications is considered as a defect. In determining the defect, it is necessary to compare the qualifications sought in the contract between the parties and the qualifications of the work, based on the fact that the employer may be considered justified in terms of the content of the contract and what kind of work he might have expected according to the implied covenant of good faith and fair dealing. The responsibility of the contractor due to defect will be in question in cases where the defect in the work cannot be attributed to the party ordering work. Considering the article 476 of the Turkish Code of Obligations, which regulates the responsibility of the employer, in terms of medical interventions in the field of aesthetic, plastic and reconstructive surgery, the defect in the work was that born from the instruction given by the patient or could be attributed to the patient for any reason, despite the explicit notice of the physician, if the work turns out as defective, the patient will not be able to exercise his/her rights.

Regardless of the purpose of the aesthetic medical intervention, in terms of the health of the patient, the physician has to avoid this medical intervention in cases where there is a risk in doing.

The non-acceptance of the work by the party ordering work constitutes another condition for the contractor to be subject to liability provisions arising from defects. Since the work is defective, the employer’s ability to exercise his/her rights also depends on his/her fulfillment of the deeds of reviewing and notifying.

In terms of the medical interventions applied by the physician, the patient’s use of his/her right to refrain from approval is interpreted as rescission of contract. It is accepted that, as a rule, the employer cannot use his / her alternative right to do rescission of contract in cases where the work is destroyed, the change in its form is caused by a reason for which the employer is responsible, or if he / she uses this work despite knowing the defect in the work.

In the case that the defect in the work or the breach of the contract does not constitute a sufficient basis to justify the exercise of alternative right to do rescission of contract, the employer may exercise his / her right of choice to request a reduction in the rate of defect from the price, which is in the nature of using the resolutive formative right. The second condition to be able to use the right of deduction from the price is that if the defect has reduced the value of the work created. However, it is foreseen that this issue will not be in accordance with the medical agreement between the patient and the physician.

Another option specified in the Turkish Code of Obligations, if it does not require an excessive expense, is one of the optional rights granted to the party ordering work to request the repair of the work free of charge, at the contractor’s expense. Elimination of the defect is accepted as a new work in the relationship between the physician and the patient, which is in accordance with the contract, aiming to make the work without defects, and the physician’s expenses belonging to his own. In terms of using this alternative right, the repair will only be carried out with the patient’s declaration.

In cases, which the contractor refuses to correct the defect or is not in a position to rectify this defect, the party ordering work has the right to demand that the defect to be rectified by a third party, at the contractor’s own expense. If the physician refrains from fulfilling this debt, the first paragraph of Article 113 of the Turkish Code of Obligations will be applied.

In accordance with Paragraph 2 of Article 475 of the Turkish Code of Obligations, it is stated that the employer reserves the right to claim compensation according to the general provisions. As a rule, in the compensation of damages caused by the defective work of the contractor, the fault will be based on the liability. Since demanding compensation from the contractor is based on general provisions, the employer is not obliged to fulfill the burden of review and notification.

The post Qualifications of Contract of Work in Aesthetic Medical Interventions appeared first on Wiklundkurucuk Law Firm.

]]>
The Notion of Medical Intervention for Aesthetics https://www.wiklundkurucuk.com/the-notion-of-medical-intervention-for-aesthetics/ Sat, 10 Apr 2021 14:12:21 +0000 https://www.wiklundkurucuk.com/?p=226162 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post The Notion of Medical Intervention for Aesthetics appeared first on Wiklundkurucuk Law Firm.

]]>

The Notion of Medical Intervention for Aesthetics

Omur Boyu Ehliyet Donemi Sona Erdi

Medical Intervention for Aesthetics is defined as interventions that are done to eliminate the deformations that are congenital or occurred by a stimulus, an accident, an injury or a disease or by itself that cause distortion on one’s physical appearance or without a deformation, in order one to have a more beautiful look, be happier and more contented spiritually.

Some of the aesthetic interventions does not require the usage of scalpel like injection of silicone to the lips or interventions to eliminate the wrinkles in the forehead, therefore are not classified as surgical interventions. On the other hand, most of the medical intervention for aesthetics are done under the surgical branch of plastic and reconstructive surgery, and its sub-group cosmetic surgery. 

Medical interventions for aesthetics are classified according to their aims as physical recovery, spiritual healing and just interventions for cosmetics. 

Interventions like recovery of the congenital abnormalities or recovery of loss of tissue or organs due to an accident or a stimulus or by itself that occurred afterwards are classified as aesthetic medical interventions for physical recovery. 

Treatment of spiritual discomfort caused by the abnormalities that occurred by various factor or congenitally is aimed by the medical interventions for spiritual healing. 

Medical interventions that just aim for beautification are the medical intervention demands of people that don’t have a mental illness or have a treatment purpose but have the desire to look more beautiful or gain a reputation. 

The post The Notion of Medical Intervention for Aesthetics appeared first on Wiklundkurucuk Law Firm.

]]>
The Notion of “Medical Intervention” https://www.wiklundkurucuk.com/the-notion-of-medical-intervention/ Sat, 10 Apr 2021 14:10:43 +0000 https://www.wiklundkurucuk.com/?p=226157 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post The Notion of “Medical Intervention” appeared first on Wiklundkurucuk Law Firm.

]]>

The Notion of “Medical Intervention”

Omur Boyu Ehliyet Donemi Sona Erdi

The general frame and the borders of medical intervention is determined by our Constitution and European Convention on Human Rights and Biomedicine. In their enlightenment, medical intervention is every operation done in order to diagnose a deficiency or a disease regarding a person’s mind and body health; to palliate or to prevent the worsening of a disease in the cases where treatment is not possible, to reduce the pain, to prevent possible upcoming diseases or to aim family planning on a legal basis, by authorized people by law according to rules and principles the medical science sets forth.

According to Regulation of Patient Rights, Article 4, paragraph 1, section g, medical intervention is defined as, “Medical intervention: Physical and mental initiative carried out within the boundaries of medicine in accordance with the relevant professional obligations and standards for the protection of health, diagnosis and treatment of diseases, applied by people authorized to perform the medical profession.” 

In the way of embracing thoughts asserted in the doctrine, medical intervention may be defined as; physical and mental initiative within the boundaries of medicine, in which the practice is carried out by the persons authorized to perform the medical profession, within the framework of diagnosis, treatment or legal purpose, in accordance with the benefit expected from the intervention to be made

As seen above, four fundamental conditions are required for medical intervention, which are: the intervention being made by the physician (medical personnel), indication, informed consent of the patient and the intervention being in accordance with the parameters of medical science.  

1.A. Medical Intervention to Be Carried Out by Authorized Persons

Authorization to make medical intervention will be lawful when it is granted by law. The ones that have the authority to make medical intervention are physicians, midwifes, medical personnel, nurses, dentists, caregivers, dental prothesis technicians and pretomists. Yet, the authority belongs to the physicians in essence. Consequently, general rules for the authorization are as follows:

The definition, name, the authority borders and the duties of the profession must be regulated legally. 

To right to do the profession should be gained by the related education in the field. 

The diploma or profession document should be approved/accepted by the Ministry of Health

1.B. Medical Necessity (Indication)

According to Article 17, paragraph 2 of the Constitution, no one’s physical integrity might be violated except medical necessity. Indication is the valid ground for medical assistance or making medical intervention. Therefore, indication is one the elements that legalizes the medical intervention. 

1.C. Elucidation and Consent 

In order for a person to freely and soundly decide on a operation to be carried out on him/her, s/he must know the content of the operation, possible outcomes, possible benefits or harms of the operation, that is, s/he must be enlightened

According to Regulation of Patient Rights, Article 15:

“Patient should be informed about the matters as follow:

  1. a) The possible reasons underlying the disease and how it will possibly proceed
  2. b) How, where and by whom the medical intervention will be made and estimated duration of the procedure,
  3. c) Other choices of diagnosis and treatments, the benefits and harms these choices will    cause, and possible effects of them on the patient’s overall health,

ç) Possible complications

  1. d) Possible benefit and risks in case of rejection 
  2. e) The important features of the medications to be used 
  3. f) Recommendations on lifestyle that are critical for the patient’s overall health,
  4. g) How to get medical assistance on the same subject when needed.”

 

According to Article 26 of Turkish Medical Association Profession Ethics Rules, informed consent is defined as, “The physician should enlighten the patient about the patient’s health condition and the diagnosis, the type of the recommended treatment method, the chance and duration of the treatment method, the risks of the treatment method fort he patient’s health, the usage and possible side effects of the medications, the consequences of the disease if the patient does not accept the recommended treatment, possible treatment options and the issues of risks. The enlightenment to be made should be in an appropriate manner that pays attention to the cultural, social and mental state of the patient. The information should be given in a form understandable by the patient. The patient him/herself determines the people to be informed besides him/her. All kinds of health-related initiatives can be made with the free and informed consent of the person. The consent obtained is invalid if it has been obtained through pressure, threats, incomplete disclosure or deception.”

Elucidation liability belongs to the physician that proceeds the treatment, makes the intervention. Person to be enlightened is the patient that will be subject to the medical intervention. Patient him/herself is the one that should directly be informed about the medical intervention s/he will face in order to use his/her own right to determine his/her own future. The extent of the enlightenment is stated in Article 15 of the Regulation of Patient Rights and Article 26 of Turkish Medical Association Profession Ethics Rules. Unless there is an emergency, reasonable and appropriate time to decide should be allowed to the patient. As by the rule, elucidation should be made one day before the surgery at latest. 

It is of great importance that the physician fulfills the obligation of elucidation in the aspect of the consent to be given by the patient regarding the intervention to be performed. The consent statement should be made before the intervention or depending on the nature of the concrete incident, the latest at the time of the intervention. Although consent can be given explicitly or implicitly, either one will not remove the physician’s obligation to inform.  Consent, as a rule, can be explained verbally. However, the provisions in the legislation regarding obtaining written consent are reserved. Previous consent can be revoked at any time. 

 

1.D. Medical Intervention in Accordance with the Parameters of Medical Science 

In order for the medical intervention to be lawful, it should be performed in accordance with the parameters of the medical science. 

Article 11 of Regulation of Patient Rights states: “The patient has the right to request diagnosis, treatment and care in accordance with the requirements of modern medical knowledge and technology.  

Diagnosis and treatment of a deceptive nature or contrary to the principles of medicine and the provisions of the legislation on medicine cannot be made.”

As indicated in the article, the patient has the right to request diagnosis, treatment and care in accordance with the requirements of modern medical knowledge and technology. If intervention is performed careless, neglective and contrary to the requirements of medical science, the operation of the physician will be against the law. Malpractice, meaning compensation action might be commenced against the physician that performed an unlawful intervention. As a law firm located in Istanbul, we might help you commence this action in the area of health legislation. An attorney with expertise on Health Legislation area should be consulted to before commencing such actions, otherwise the chances of losing the case is very high. 

The post The Notion of “Medical Intervention” appeared first on Wiklundkurucuk Law Firm.

]]>
Malpractice and Legal Liability https://www.wiklundkurucuk.com/malpractice-and-legal-liability/ Sat, 10 Apr 2021 14:08:29 +0000 https://www.wiklundkurucuk.com/?p=226152 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post Malpractice and Legal Liability appeared first on Wiklundkurucuk Law Firm.

]]>

Malpractice and Legal Liability

Omur Boyu Ehliyet Donemi Sona Erdi

According to Article 13 of Turkish Medical Association Profession Ethics Rules, malpractice means a patient getting harm due to physician’s ignorance, inexpertness or negligence. 

Complications such as consented risk, unwanted side effects, etc. are situations where the consequence was unforeseen or could not be prevented by the knowledgeable methods, whereas the term malpractice is used for situations where the consequence could have been prevented either by foreseeability or taking measures, but due to a mistake in the processes of foreseeability or taking measures, consequence happens. In the cases where the patient’s informed consent is obtained, the situation exists is consented risk – medically called complication, where the physician does not have liability due to the emerging harm. 

What is meant by a mistake in practice, which is based on all stages of the intervention, such as before the medical intervention to be applied by the physician, the moment of the intervention and after the intervention, is the failure to show the care that should have been shown according to the medical standards and experience, and therefore any physician intervention that does not seem appropriate to the incident.

The physician won’t have liability due to the medical intervention in cases where the consequence did not case despite the physician being acted in accordance with the rules and requirements of the medical science since the duty of the physicians is not healing the patient for certain. 

Since intention cannot be applied to the cases of medical intervention, malpractice may only occur by negligence.  

 

8.1. Failure in Diagnosis 

Physician, due to performance of obligation, needs to do all the required medical intervention and analysis and evaluate the results in accordance with the orders of medical science in order to diagnose. Otherwise, mistakes done within this process are counted as failure in diagnosis. 

Although the physician is not obliged to be successful in diagnosis, what is expected of him/her is the obligation to intervene, perform examinations and tests and reach a diagnosis as required by his expertise and the current disease in the case. 

In the cases where a fundamental mistake is made, a failure in diagnosis exists despite the symptom of the disease being very clear or a misdiagnosis is made due to the fact that fundamental control examinations are not performed, the incorrect evaluation of findings is considered as a serious violation of the duty of care.

 

8.2. Mistaken Treatment

All kinds of medical interventions that the necessary care due to medical science rules was not shown or done contrary to the standard of a specialist physician, mistaken decisions given by the physician during or after the medical intervention are considered as treatment mistakes. Mistaken treatment may occur by physician’s failure to perform the medically necessary action or by taking an action that is not medically necessary. 

Usage of unmodern and risky methods in diagnosis and treatment is considered as malpractice and causes liability of the physician. 

Failure to use existing technical tools, despite being necessary for the treatment, is considered as severe malpractice. 

Failure to perform a medical intervention although it is necessary constitutes the most basic mistake encountered within the scope of treatment mistake, which is legally considered as negligent act, in addition, delaying the intervention can be evaluated within this scope.

One of the most important groups in aspect of malpractice is failure to do necessary test and examinations. 

Keeping the state of medical science in the period of medical intervention in mind, principle of proportionality should be taken as a basis in the diagnosis and treatment methods to be applied by the physician to the patient. In other words, cases where balance disorder occurs are considered as mistaken treatments. 

If the physician is not in a position to perform the medical intervention required by the branch, s/he must refer the patient immediately. In case, where the necessary intervention cannot be made in the referred place, the responsibility for the damage arising from the delay lies with the physician. 

Physicians are obliged to consult with their colleagues who are experts in their field. When consultation is not applied, malpractice may arise. 

 

8.3. Management of Complication

Physician is not liable for a complication that may occur during a medical intervention. Liability may be in question when the complication is not managed as supposed to be. In order for a physician to be liable in management of a complication, neglect should exist.  

In cases where the physician does not notice the complication on time, although noticing on time, not taking necessary precautions or although noticing and taking necessary precautions, the medical intervention being done being under the current standards of medical science, complication will transfer into malpractice, and the liability of physician will arise. 

 

8.4. Violation of Obligations after Treatment 

The debt of care in medical interventions is not only limited to the care to be shown during the treatment, but this debt remains valid for post-treatment. The physician may give advice and warnings to the patient about the post-treatment period, inform the patient or, if necessary, impose some obligations on the patient after the treatment. In other words, despite the end of the relationship between the patient and the physician, it continues to exist. Violation of this obligation is also considered a medical malpractice.

The physician should constantly monitor the process and success of the treatment applied to the patient. Control and surveillance failure such as the inadequacy of post-operative observation, failure to take protective measures, are considered medical malpractice.

 

8.5. Failure of Undertaking

While undertaking the treatment of the patient, the physician should have an evaluation of whether s/h has sufficient knowledge, equipment and experience to provide the medical standard, and if s/he comes to conclusion that s/he cannot achieve the standard, s/he should consult other physicians or refer the patient to a specialist or hospital. In the case where the specialty of the physician is exceeded, the failure of undertaking will occur.

As a rule, hospitals should have the best technical medical standard and existing equipment should be kept in the most modern state. If the hospital fails to meet these standards, by notifying the patient about this situation and the referral should be done to the hospitals with the said technical standards. 

 

8.6. Physician’s Obligation to Notify about the Malpractice

In the case where the health condition of the patient requires this notification, if the physician has a justified suspicion of having a mistake in his/her practice or if s/he is absolutely sure, s/he is obliged to report this situation to his/her patient. Despite the existence of this obligation, the failure of the physician to notify his patient is also accepted as a malpractice.

 

  1. Physician’s Legal Liability Due to Aesthetic Medical Interventions 

9.1. Elements of Liability Arising from the Medical Agreement

The violation of the contract of work by the physician or aesthetic surgeon due to the commissive or omissive act must have occurred in terms of liability due to the breach of the contract. Since the physician has an objective duty of care due to the contract, the violation of this obligation will result in the physician’s liability due to both the breach of the contract and the illegality.

A fault, which constitutes another condition of the physician’s contractual liability, can be defined as intent -knowingly and willingly fulfilling the unlawful outcome- or although unlawful, predictable and preventable outcome is not desired, but not taking the necessary precautions to prevent such an outcome. Both the doctrine and Court of Cassation accept that the physician has liability for even a slight fault.

The liability of the aesthetic surgeon or physician due to the breach of the contract depends on the existence of damage besides the fault. The element defined as the cause-effect relationship between the damage that has occurred and the incident causing the physician to be held responsible is the causal relation. It is one of the necessary conditions for the aesthetic surgeon or physician to be liable for breach of contract.

9.2. In the Aspect of Aesthetic Medical Interventions Subject to Agency Contract   

According to the agency contract, the medical intervention of the physician is aimed at treatment, therefore unlike the contract of work, the physician does not have a liability due to the failure to achieve the aimed result. The liability arises due to the lack of care s/he has shown during the process. In other words, the physician that didn’t show the necessary care will be held responsible due not performing properly as the agency contract required.

9.3. In the Aspect of Aesthetic Medical Intervention Subject to Contract of Work

In the medical interventions subject to contract of work, rather than the behavior of the physician, since the result is the important element, the liability of the physician will arise in cases where the physician was loyal to duty of care as much as s/he could, s/he applied all necessary methods in accordance with objective proportion and within reason, but nevertheless, the desired aesthetic result is not reached. 

The main aim of the aesthetic medical interventions subject to contract of work is to make something occur. Therefore, besides the debtor’s debt of creating the work and submitting it, s/he has responsibility in aspect of the choice and the quality of the materials. 

Other results in aspect to aesthetic medical interventions subject to contract of work can be listed as the physician’s debt of guarantee against the patient due to a fault being born, the patient’s alternative rights such as claim to compensation, demand of a remedy, rescission of the contract or price cut demand from the cost. 

9.4. Legal Liability due to Tort in Aesthetic Medical Interventions

When the patient has got damage as a result of the aesthetic medical intervention made by the physician, with the presence of other conditions in aspect of liability, the liability to compensation of the physician will arise in accordance with the provisions of tort. 

The post Malpractice and Legal Liability appeared first on Wiklundkurucuk Law Firm.

]]>
Legal Characteristics of Physician and Patient Relationship https://www.wiklundkurucuk.com/legal-characteristics-of-physician-and-patient-relationship/ Sat, 10 Apr 2021 14:06:25 +0000 https://www.wiklundkurucuk.com/?p=226148 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post Legal Characteristics of Physician and Patient Relationship appeared first on Wiklundkurucuk Law Firm.

]]>

Legal Characteristics of Physician and Patient Relationship

Omur Boyu Ehliyet Donemi Sona Erdi

Despite not being regulated specifically in Turkish Law of Obligations, the agreement between the physician and the patient that may be defined as contract on physician practice is established by the mutual and consentaneous, implicit or explicit declaration of intention of the parties as stated in Article 1 of the Turkish Law Obligations, regulating the establishment of contracts. 

According to this contract that is informal, consensual, burdening both sides with debts and requiring instantaneous performance, the physician is under the debt of diagnosis, treatment or medical intervention, whereas the patient is under the debt of paying in return of this act. 

According to the second paragraph of article 502 of Turkish Law of Obligations, provisions about agencies, as long as suitable, may be applied to the labour contracts that aren’t regulated in the Law itself.

In our legal system, the dominant opinion both in doctrine and in practice supports that provisions of agency contract should be applied to the relation between the physician and the patient. 

In order to accept that the physician has responsibility due to the contract:

  1. There must be an either implicit or an explicit established contract between the patient and the physician. 
  2. There must be a breach of contract caused by the physician. 
  3. The patient must suffer pecuniary or incorporeal. 
  4. The physician must infringe his/her obligations that were determined by the contract intentionally or neglectfully, must have acted with fault by failing to do his job either as a whole or not as meant to be. 
  5. Damage of the patient must have occurred to the misconduct of the physician. 

The post Legal Characteristics of Physician and Patient Relationship appeared first on Wiklundkurucuk Law Firm.

]]>
Conditions of Compliance with the Law of Medical Interventions for Aesthetic Purposes https://www.wiklundkurucuk.com/conditions-of-compliance-with-the-law-of-medical-interventions-for-aesthetic-purposes/ Sat, 10 Apr 2021 14:02:14 +0000 https://www.wiklundkurucuk.com/?p=226142 Curabitur fringilla malesuada magna, in vehicula tortor hendrerit quis. Cras dolor odio, faucibus elementum egestas a, auctor sed nisl. Suspendisse in odio justo. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Cras ut laoreet nibh, ac luctus enim.

The post Conditions of Compliance with the Law of Medical Interventions for Aesthetic Purposes appeared first on Wiklundkurucuk Law Firm.

]]>

Conditions of Compliance with the Law of Medical Interventions for Aesthetic Purposes

Omur Boyu Ehliyet Donemi Sona Erdi

Conditions may be listed as the person going to make the medical intervention to be a physician, in other words the practice of the medical profession by those who are legally authorized, the presence of the indication in the intervention, the elucidated patient’s consent, intervention to be done regardful in accordance with medical standards.  

Above, we have mentioned the same issues we did in the notion of medical intervention; therefore, we won’t touch on same issues again. The important matter in medical interventions for aesthetic purposes is the presence of the indication. 

Indication, meaning the necessity of the medical intervention, is compulsory in the aspect of compliance with the laws of medical intervention to be done by a physician, a dentist or an authorized medical personnel according to the intervention. Indication is one of the conditions that makes the medical intervention of the physician in compliance with the laws.

Although there is often no medical indication in the applications that we will exemplify with interventions such as aesthetic interventions and circumcision, the presence of psychological indication is accepted as such interventions have the purpose of treatment, albeit indirectly, except for circumcision. In other words, the fact that medical interventions performed outside of diagnosis, treatment and protection purposes that do not constitute the primary purpose of gaining health to the person, are in compliance with the law means that the type of social and psychological indication is also accepted.

However, there is an important point to take into consideration. Since there is no necessity in medical interventions applied for aesthetic purposes, even if the patient has given consent to the medical intervention to be applied, the physician must avoid the intervention in cases where the danger is high and there is a possibility of great harm, and an action to the contrary makes the physician’s action unlawful.

 

4.1. Indication in terms of aesthetic interventions with different purposes

  1. In terms of Aesthetic Interventions for Healing Physical Discomfort 

Since the main purpose of eliminating the existing anomaly that has occurred either congenitally or later spontaneously or as a result of an accident and providing an aesthetic appearance, is treatment; regarding the existence of a medical indication and the lawfulness of the intervention, both the Doctrine and the Court of Cassation adopt the same opinion and evaluate such medical interventions in accordance with the law in the presence of general conditions regarding compliance with the law.

  1. In Terms of Aesthetic Interventions for Healing Mental Disorders 

Since aesthetic interventions for healing mental disorders, although being indirectly, have the purpose of treatment, despite not being medical, presence of psychological or social indications are sufficient enough for such interventions to be considered in compliance with law. 

 

  1. In Terms of Aesthetic Interventions Aiming Just Beautification

Since aesthetic interventions with just beautification purposes does not qualify for treatment purposes directly or indirectly, even if the consent of the patient is present, are considered unlawful in the doctrine according to the majority. 

However, the de facto shared opinion in Turkish legal practice is that these interventions will be accepted in accordance with the law when they do not have an insignificant effect on the physical or mental health of the person, they are not applied in a way that causes unacceptable consequences for the society, there is no medical condition in terms of the patient’s life and health, the subject of the intervention is not contrary to the law and morality and the consent of the patient to be intervened is obtained. The Court of Cassation also accepts such aesthetic interventions that do not have a treatment purpose in compliance with the law, even if they are purely for beautification.

The post Conditions of Compliance with the Law of Medical Interventions for Aesthetic Purposes appeared first on Wiklundkurucuk Law Firm.

]]>