Compensation Claim for Malpractice in Medical Intervention

Compensation Claim for Malpractice in Medical Intervention. Medical malpractice, or “medical error” in technical legal terms, refers to the occurrence of harm to a patient as a result of the actions of healthcare professionals or institutions that contradict professional standards. In modern medical law, the relationship between a physician and a patient is not merely a medical process but a complex legal status surrounded by constitutional rights, contract law, and tort law principles. When an erroneous medical intervention occurs, the process of compensating for the physical and psychological damages suffered by the patient is shaped through the violation of specific fundamental rights. This report provides an in-depth analysis of the five fundamental rights patients possess in damage lawsuits filed due to medical malpractice, the legal consequences of violating these rights, the actuarial criteria used in determining compensation amounts, and current judicial practices.

Legal Foundations of the Distinction Between Medical Malpractice and Complications

To determine legal liability, it is essential to first define the fine line between medical malpractice and complications. Article 13 of the Turkish Medical Association (TTB) Medical Ethics Rules defines medical malpractice as harm to a patient due to ignorance, inexperience, or indifference. In contrast, a complication refers to risks inherent in the nature of a medical intervention that cannot be prevented even if one acts in accordance with the standards accepted by medical science. As emphasized in judicial decisions, a physician is liable for “injustice, not misfortune”; in other words, a “fault” must be present for a damage to be compensated.

The existence of medical malpractice requires criteria such as deviation from standard and current practices, lack of skill, or neglect of the patient. However, accepting a situation as a complication initially does not completely absolve the physician of responsibility. If a complication occurs and the physician fails to manage this situation in accordance with current guidelines or fails to provide adequate follow-up, the process evolves into malpractice. In this context, “complication management error” is one of the most common and debated types of medical errors before judicial authorities.

Types of medical malpractice can be classified across a wide spectrum, including diagnostic errors (misdiagnosis), treatment errors (incorrect technique or medication application), exceeding the limits of expertise (authority), lack of information and exceeding the limits of consent, lack of care, and violation of the duty of confidentiality. Each of these violations represents an infringement on one or more of the five fundamental rights detailed below.

First Right: The Right to Benefit from Health Services and Treatment in Accordance with Medical Requirements

Every individual has the right to benefit from all types of medical services required by their health needs in a manner befitting human dignity. This right encompasses not only admission to a hospital but also the execution of diagnosis, treatment, and care processes in accordance with the current data and standards of medical science.

Duty of Care in Diagnosis and Treatment

One of the physician’s primary obligations to the patient is to take the patient’s history (anamnesis) completely, perform the necessary examinations meticulously, and use appropriate diagnostic methods to make the correct diagnosis. An error at the diagnostic stage can render the entire treatment process faulty. For example, a patient receiving unnecessary or incorrect treatment as a result of a misdiagnosis is considered a violation of medical protocols and gives rise to liability for compensation.

During the treatment process, the “selection of the appropriate treatment method” and its technically flawless application are essential. Situations such as the application of incorrect techniques or procedures, sterilization deficiencies, faulty anesthesia applications, or the use of inappropriate filling materials constitute a violation of this right. When determining the physician’s responsibility, the “standard of an experienced specialist physician” is taken as the basis; that is, it is evaluated whether the care shown is what an average physician in the same branch should have shown.

Organizational Fault and Service Fault

Malpractice may not be limited to the personal actions of the physician alone. Situations such as the failure of the healthcare institution to provide appropriate equipment, insufficient personnel employment, failure to maintain hygiene conditions, or mismanagement of record-archiving processes are referred to as “organizational fault” or, in administrative law, “service fault.” Deficiencies in infection control, in particular, are accepted by judicial authorities as gross negligence requiring the direct compensation liability of the institution.

Second Right: The Right to be Informed and Enlightened

Regulated between Articles 15 and 20 of the Patient Rights Regulation, this right guarantees that the patient is fully informed about their own health status, the medical procedures to be applied to them, and their possible consequences. Information must be provided in a simple, clear, and unambiguous manner that the patient can understand.

Scope and Method of Information

In medical malpractice cases, the lack of information can be considered a ground for compensation even if the intervention is successful. According to the Patient Rights Regulation, it is mandatory to inform the patient on the following matters:

Information Item	Scope Details
Nature of the Disease	Probable causes of the disease and how it will progress.
Details of Intervention	By whom, where, and how the intervention will be performed and its estimated duration.
Alternative Methods	Other diagnostic and treatment options, their benefits, and risks.
Possible Complications	Probable risks that may arise during or after the intervention.
Refusal Status	Probable benefits and risks that may arise in case of refusal of treatment.
Critical Recommendations	Characteristics of the medications to be used and critical lifestyle suggestions for health.

Judicial decisions frequently emphasize that informing is not merely a simple signature on an “informed consent” form, but a process that requires the patient to truly comprehend the situation. If the obligation to inform has not been fulfilled, the intervention becomes an unlawful attack on the patient’s physical integrity.

Third Right: Informed Consent and the Right to Refuse Treatment

The fundamental condition for the legality of a medical intervention is the consent given by the patient with their free will. Consent is legally valid only when given at the end of an enlightened information process. According to the Constitution and legal regulations, no person’s physical integrity may be touched without their consent, except in cases of medical necessity and situations prescribed by law.

Validity and Limits of Consent

Although consent in medical interventions is not subject to any specific form, it is taken in writing in practice for ease of proof. However, consent obtained unlawfully, immorally, or through the corruption of the patient’s will is void. If the patient is a minor or incapacitated, consent is obtained from the guardian or trustee; however, in emergency situations involving a life-threatening risk, the intervention can be performed without waiting for the consent of the guardian or trustee.

The patient also possesses the right to withdraw their consent at any time and stop the treatment. In this case, the risks arising from stopping the treatment must be explained to the patient and recorded with a report. Interventions without consent are evaluated within the framework of “acting without mandate” (negotiorum gestio) provisions in medical law and are subject to a general 10-year statute of limitations.

Fourth Right: The Right to Privacy and Protection of Personal Data

It is essential to respect the private life and privacy of the patient while providing health services. This right covers both physical privacy (not having others present during examination and treatment) and informational privacy (keeping health data confidential).

Confidentiality of Health Data and Access to Records

Information obtained due to health services cannot be disclosed in any way, except for legal obligations. According to the Personal Data Protection Law (KVKK), which came into force in 2016, health data is in the status of “special quality personal data.” The patient’s privacy preferences on the e-Nabız system are protected within this scope, and health workers’ access to this data is subject to strict rules.

Another important right of the patient is the right to examine their own medical records and receive a copy. The physician and the hospital have a “duty to keep records”; because in malpractice cases, deficiencies in the file or the failure to keep records in accordance with the rules can lead to the burden of proof shifting or resulting in a disadvantage for the institution.

Fifth Right: The Right to Application, Complaint, and Filing a Lawsuit

The patient has the right to all kinds of applications, complaints, and lawsuits with the claim that their rights have been violated. This right also includes the remediation of material and moral damages resulting from a faulty medical intervention. Malpractice cases can be the subject of both civil (compensation) and criminal cases. If an injury has occurred as a result of the physician’s error, “negligent injury” is triggered; if death has occurred, the crime of “causing death by negligence” is considered.

Types of Compensation and Claimable Damages

There are two main categories in a compensation lawsuit:

Material Compensation: Additional treatment expenses incurred due to incorrect treatment, medication costs, loss of earnings due to loss of labor force, and compensation for loss of support in case of death are within this scope.
Moral Compensation: It aims to alleviate the pain, suffering, and sorrow experienced by the patient or their relatives in case of death with a material equivalent.

In determining the amount of moral compensation, the degree of bodily harm, the impact of this harm on daily life, and the social-economic status of the parties are taken into account by the judge.

Actuarial Parameters in Material Compensation Calculations

The amount of material compensation is not determined randomly; it is based on specific scientific criteria and data. This calculation process is the mathematical determination of the decreases in assets and probable expenditures caused by the faulty intervention.

Basic Calculation Criteria

Criterion	Description and Impact
Labor Force Loss Rate	The percentage of permanent damage (disability) in the person’s physical integrity. It is the basic multiplier of compensation.
Age of the Person	How long the person can work until the “passive working age” (usually age 65).
Monthly Earnings	Mathematical calculation of loss of earnings based on the person’s real income or minimum wage.
Fault Rate	The share of the physician or institution in the medical error. The compensation amount is determined proportionally to this rate.
Remaining Life Expectancy	The expected lifespan calculated using the TRH 2010 Life Table.

Obligation of the TRH 2010 Life Table

As of 2021, the Court of Cassation has ruled that the TRH 2010 Life Table, which contains data suitable for the realities of Turkey, should be taken as the basis instead of the foreign-sourced PMF 1931 table previously used in compensation calculations. This table contains statistics on the age, gender, and mortality rates of individuals in Turkey and, as it predicts a longer average lifespan for women, it leads to higher compensation amounts, especially for female beneficiaries.

Compensation for Loss of Support and Right Holders

If the faulty medical intervention results in death, those whom the deceased supported while healthy can claim this compensation. It is not mandatory for these people to be heirs; it is sufficient to prove that there was a “support relationship” between them and the deceased.

Calculation periods for children vary according to education:

General limit for male children is 18 years; 20 years if they are receiving high school education.
The limit is 22 years for female children; for children (male or female) receiving higher education, compensation can be calculated up to the limit of 25 years.

Competent Courts and Litigation Procedure

Where a malpractice lawsuit will be filed depends on the nature of the institution where the intervention was performed. This distinction is of vital importance so that the case is not dismissed on procedural grounds before entering the merits.

Private Hospitals and Independent Physicians (Civil Jurisdiction)

Compensation lawsuits to be filed against independently working doctors, private hospitals, medical centers, and polyclinics are generally heard in Consumer Courts. This situation stems from the fact that the relationship between the patient and the private institution is considered a “consumer transaction.” However, if there is a commercial relationship between the parties (in some cases, in recourse relationships between insurance companies), Civil Courts of Peace or Commercial Courts of First Instance may also be competent.

Public and University Hospitals (Administrative Jurisdiction)

For errors occurring in state hospitals, training and research hospitals, and university hospitals (regardless of whether they are state or foundation universities), a “Full Remedy Action” (Tam Yargı Davası) must be filed in Administrative Courts. A lawsuit cannot be filed directly against a physician due to interventions in public hospitals; according to the Constitution, the lawsuit is directed against the relevant public institution (Ministry of Health or University Rectorship).

Mandatory Mediation and the Professional Liability Board

As of 2025, mandatory mediation is a prerequisite for litigation in malpractice cases to be filed in Consumer or Commercial Courts; meaning a mediator must be consulted before filing a lawsuit. In cases filed in administrative jurisdiction, there is no obligation for mediation; however, there is a requirement to apply to the relevant administration and request compensation before filing a lawsuit.

Furthermore, with a new regulation introduced in 2022, the authority to decide on recourse against health personnel working in public institutions and universities has been given to the Professional Liability Board. The Board evaluates whether the physician intentionally abused their duty and their fault status, finalizing the recourse decision within one year.

Statutes of Limitations and Forfeiture Periods

The right to claim compensation due to a faulty medical intervention is subject to specific periods. These periods vary according to the basis of the lawsuit.

Nature of the Lawsuit	Statute of Limitations	Start Date
Administrative Jurisdiction (Public)	1 Year / 5 Years	1 year from learning of the damage, 5 years in any case.
Tort (Private)	2 Years / 10 Years	2 years from learning of the perpetrator and damage, 10 years in any case.
Contract of Mandate	5 Years	From the date the breach of contract occurred.
Contract for Work (Aesthetics)	2 Years	From the date the defect was learned or the work was delivered.
Acting Without Mandate	10 Years	From the date the unauthorized intervention was performed.
Gross Negligence	20 Years	General upper limit in medical applications where the physician is grossly negligent.

If the malpractice action also constitutes a crime and a longer statute of limitations is envisaged for this crime in the Turkish Penal Code (for example, 15 years in fatal cases), this criminal statute of limitations also applies to the compensation lawsuit.

Expert Examination and the Importance of Proof

Since claims of medical malpractice are technical matters requiring expertise, courts must obtain an expert report before making a decision. During the expert examination, all data in the patient’s file, radiological images, laboratory results, and nurse notes are meticulously examined. The distinction between malpractice and complications must be made by specialized experts.

Burden of Proof and Evidence

The general rule in civil lawsuits is that each party proves its own claim. However, the burden of proof regarding informed consent lies with the physician or the hospital; that is, the institution must prove that the necessary information was given to the patient. To prove faulty intervention, not only official documents but also witness statements, scientific opinions, and e-Nabız records can be used as any kind of legally compliant evidence.

Landmark Decisions and Specific Cases

Current decisions of the Court of Cassation and the Council of State guide the determination of standards in medical law.

Pregnancy Follow-up and Birth Errors: In a landmark decision, the application of artificial labor (induction) by a midwife without consulting a doctor, resulting in the baby’s lack of oxygen, was accepted as a gross medical error. The equation “Induction = Doctor + Patient” was emphasized as a medical rule.
ROP Lawsuits in Premature Babies: The 3rd Civil Chamber of the Court of Cassation ruled that in cases of blindness occurring as a result of failure to perform eye examinations (ROP follow-up) of premature babies in accordance with standard protocols, there is a violation of the heavy duty of care by the hospital and the physician, and compensation must be paid.
Violation of Stabilization: Referral or discharge of a patient who comes to the emergency department without stabilizing their vital functions is directly considered malpractice regarding the negative results that will arise.
Misdiagnosis and Unnecessary Treatment: In cases where the patient is misdiagnosed and their healthy organ is removed or they are subjected to heavy treatments (chemotherapy, etc.) unnecessarily, it is accepted that the physician did not comply with medical protocols, and high moral damages are awarded.

Conclusion and Evaluation

Compensation lawsuits filed due to faulty medical intervention serve the purpose of protecting the individual’s most fundamental right to life and physical integrity. The five fundamental rights detailed within the scope of this report (information, consent, standard treatment, privacy, and litigation rights) are legal mechanisms that provide the power balance between the patient and the healthcare system.

While the TRH 2010 life tables and actuarial criteria used in calculating the compensation amount aim to remedy the victimization mathematically in the fairest way, new structures such as the Professional Liability Board try to provide the professional security of physicians. Paying attention to procedural requirements such as statutes of limitations, determination of the competent court, and mandatory mediation in the process of seeking rights is the key to access to justice. Medical law is a field that is constantly renewed with developing technology and changing judicial precedents, and it is of great importance for victims of faulty medical intervention to receive support from experienced lawyers for the healthy management of the process.

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