Malpractice and Legal Liability

Apr 10, 2021Health Law & Malpractice

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.