Legal Characteristics of Physician and Patient Relationship

Apr 10, 2021Health Law & Malpractice

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.