Although one of the most confused issues in health law is the distinction between malpractice and complications, the fact that this distinction is not clear in practice leaves a question mark in mind about the responsibilities of medical professionals arising from these issues.
In this direction, while physicians and health personnel will have responsibility for malpractice, they will not be responsible for complications if certain conditions are met.
For this reason, as the K&P Legal Team, which believes that the resolution of disputes in the field of Health Law requires a different approach and experience than conflicts in other fields of law, we believe that it is useful to examine this distinction and the responsibilities arising from these issues in detail.
Before examining the subject of liability, it is necessary to examine which situations will include complications and at what point complications will be distinguished from malpractice. In addition, while the predictable consequences of a medical intervention are described as complications in the medical literature, it will not be enough to absolve the physician from responsibility in medical law to describe the case as a complication.
First of all, let’s look at malpractice, in other words, what is bad doctor practice;
malpractice; 13 of the Turkish Medical Association Medical Professional Ethics Rules. In the article, “ Harm of a patient due to ignorance, inexperience or indifference means “bad practice of medicine”. defined as ” .
The articles regarding the criminal and legal liability of physicians arising from malpractice, which are specifically defined even in the professional ethics rules, are not specifically regulated in our legislation. In this respect, according to the general provisions, crimes that occur as a result of these behaviors of physicians constitute the subject of criminal cases, and torts are the subject of compensation cases:
- In order for the physician’s liability for tortious act and in this context, the claim for compensation to be legal; the doctor’s act is unlawful, a harm has occurred, this damage is due to a faulty behavior of the doctor, and there is a causal link between the act and the result.
- In terms of criminal law, different penal sanctions are envisaged according to the severity of malpractice, according to the Turkish Penal Code. These are the cases of negligent injury, negligent killing and deliberate death by negligent behavior. According to the definitions of these crimes in the law, the difference between negligence and intent is that the perpetrator does not foresee the foreseeable result or does not want the result although he foresees it.
- Behaviors such as misdiagnosis and related wrong treatment, making a wrong choice about the treatment after a correct diagnosis, applying the treatment incorrectly and delaying the treatment, not taking emergency measures when necessary, and performing a surgical intervention without consulting the patient’s clinical findings, contrary to the clinical findings of the patient, are the behaviors of the physicians. are examples of behaviors that may constitute negligence liability. Another important point we will reach in the direction of this definition and examples is that in cases where the result is not predictable, negligence and any liability related to it will not be in question.
Likewise, if there is no fault that can be attributed to the physician as listed above, no liability can be assumed for the result. This will be considered a “complication”.
Complication; It is defined as the undesirable and unavoidable harms that occur unavoidably despite an intervention in accordance with the medical standard, which are accepted by the medical community and which occur unavoidably despite all kinds of precautions are taken. However, it is not correct to think that if the medical experts determine that the situation as a result of medical practice is a complication, there will be no liability; because evaluating a case as a complication does not prevent the physician from going directly to the responsibility.
Failure to go to the responsibility of the physician as a result of complications resulting from medical interventions may be possible in the presence of several conditions;
The physician shall not be liable if the conditions are met, if the patient is informed before the intervention, his/her consent has been duly obtained, and there are no faults such as negligence or carelessness in the formation of the harmful result, by showing the necessary care and attention within the framework of normal risks and deviations in accordance with the concept of the medical standard.
Although the Supreme Court practice is in this direction, for example, the Supreme Court 13. In a 2014 decision of the Civil Chamber, “Although it is written in the “Informed Consent” document signed by the plaintiff on 24.03.2008 that the medical consequences and possible complications of the procedure are explained and that the plaintiff consents to this procedure, this consent must be an informed consent as emphasized above. In the aforementioned document, there is no explanation about the chance of success and duration of the proposed treatment method, the risks that this method carries for the patient’s health, its medical consequences and possible complications. As such, it is imperative for the defendants to inform the patient of the possible outcome and complications prior to surgery. There is also no consent document submitted to the file. It is not clear with the content of the file that the defendant informed the plaintiff about this matter and warned him by making reasoned explanations, whether the plaintiff was sufficiently enlightened, and whether the plaintiff would consent to this operation even if the complications of the operation were known.” is called.
As can be seen, physicians and other medical professionals have many responsibilities, both legal and criminal, regarding the possible consequences that may occur while performing their profession, as well as the difficulties of their profession. Moreover, in cases that may be filed against the physician as a result of malpractice and complications that we have mentioned throughout our article, or in the claims made against the physician, the obligation to prove the opposite is on the physician.
For these reasons, it is beneficial for physicians and all medical professionals to know these distinctions and responsibilities in order to protect themselves against many situations such as those mentioned above.
Ayse Bilge SAHIN
Lawyer / K&P Legal Law Firm