Qualifications of Contract of Work in Aesthetic Medical Interventions
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
- 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.
- 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.
- 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.
- 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.
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