Malpractice or Complication? The Limits of Physician Liability under Turkish Law
Medical interventions, by their nature, always carry certain risks. An adverse outcome following a medical procedure does not, on its own, mean that the physician was at fault in the specific case. Under Turkish law, two fundamental concepts determine this distinction: malpractice (medical error) and complication. Understanding the difference is crucial for both patients and healthcare professionals.
1. The Legal Basis of Physician Liability under Turkish Law
Under Turkish law, the relationship between physician and patient is, as a rule, characterized as a contract of mandate.[1] According to this contractual relationship, the physician does not guarantee the result of the treatment; however, they are under an obligation to act with due care toward their patient. In other words, a physician’s liability does not arise from failing to achieve the intended result, but from failing to exercise the diligence required to reach that result.
Pursuant to the Turkish Code of Obligations, an agent must act with prudence and attention while performing the mandate. Physicians, within this framework, are required not only to comply with the rules of medical science, but also to adhere to the level of care dictated by general life experience.
Accordingly, the physician must correctly evaluate the patient’s condition, carry out the necessary examinations, choose the most appropriate and safest treatment method, and avoid unnecessary risks. If there is any doubt, the physician must conduct the necessary investigations to eliminate that doubt and take the precautions required to protect the patient.
Patients naturally expect physicians to act with diligence, attention, and care. As emphasized by the Court of Cassation, a physician may be held liable even for slight negligence, because the physician must act not only with professional knowledge and skill but also with a sense of responsibility.
Consequently, a physician who fails to exercise due care is deemed not to have properly fulfilled the mandate, which may give rise to legal liability. Nevertheless, even if a treatment results in an unsuccessful outcome, if the physician has acted in accordance with the general principles of medical science and has exercised the required diligence, liability does not arise as a rule.
2. What Is Medical Malpractice?
Malpractice is defined in Article 13 of the Turkish Medical Association’s Code of Medical Ethics as “harm caused to the patient as a result of ignorance, inexperience, or indifference.” Likewise, the Court of Cassation states that malpractice may be found where the physician has breached their duty of care.[2]
Medical malpractice refers to actions resulting in harm to the patient due to the physician’s lack of knowledge, attention, or diligence. Such errors may occur not only during treatment but also during the diagnostic phase, post-treatment follow-up, or organisational processes within the healthcare institution.
The most common types of malpractice include:
- Diagnostic errors: incorrect or delayed diagnosis, inappropriate treatment as a result, or progression of the disease.
- Treatment errors: choosing an improper treatment method, administering incorrect medication or dosage, or acting contrary to medical standards.
- Failure in post-treatment obligations: not performing necessary follow-up or failing to monitor the patient adequately after treatment.
- Medical organisational failure: harm arising from deficiencies in staff, equipment, or institutional processes.
- Undertaking without competence: performing procedures outside the physician’s field of expertise without sufficient knowledge or experience.
- Failure to seek consultation: not obtaining, or unduly delaying, the opinion of another specialist when necessary.
- Failure to inform the patient of an error: concealing a medical mistake from the patient, which constitutes a breach of the physician’s duty of candour and disclosure.
- Inadequate informed consent: failing to adequately inform the patient about the treatment, risks, and alternative methods.[3]
All of the above may constitute a breach of the physician’s duty of care and give rise to legal liability. Administering the wrong medication, failing to comply with sterilization rules, or not performing necessary examinations are examples that may be considered malpractice.
Pursuant to Article 506/2 of the Turkish Code of Obligations, the physician’s duty of care is determined according to “the conduct expected of a prudent professional acting in the same field.” Accordingly, each medical intervention is assessed within its own circumstances, and the physician’s liability is identified through a holistic evaluation of both the medical and legal aspects of the case.
3. What Is a Complication?
A complication is defined as an undesired outcome that may occur during or after a medical intervention, despite compliance with medical standards, and is considered unavoidable even when all necessary precautions have been taken. In other words, even if the physician fully complies with medical standards and exercises due diligence, certain risks may still occur. These situations are regarded as complications.
Physician liability under Turkish law is fault-based. Therefore, where no fault can be attributed to the physician, liability does not arise. The Court of Cassation has repeatedly stated that if the physician has fulfilled all medical requirements, undesired results that occur despite this cannot be attributed to them.[4]
Since the physician–patient relationship is based on a contract of mandate, the physician’s liability does not arise from the failure to achieve the desired result, but from the failure to diligently perform the effort required to reach that result. The physician does not guarantee recovery; they are obligated to act in accordance with medical science, conduct necessary examinations, choose the correct method, and carry out the process carefully.
Every medical intervention carries inherent risks. What matters is that the physician foresees these risks and takes the necessary precautions. If the physician has acted diligently and in accordance with medical standards, they cannot be held liable even if an adverse result occurs.
Thus, the physician’s duty is not to guarantee the patient’s recovery but to provide the most appropriate, careful, and diligent medical intervention. When an adverse result is unavoidable despite all necessary medical precautions, the physician is not legally liable.
4. Informed Consent
Medical interventions directly affect an individual’s bodily integrity; therefore, for such interventions to be lawful, the patient’s consent is required. For this consent to be valid, the patient must be adequately informed—this is known as informed consent.
Informed consent refers to the patient’s voluntary approval after being informed of the purpose of the intervention, possible benefits, risks, alternative methods, and the likelihood of complications. The concept is closely tied to the patient’s right to make informed decisions regarding their own body.
According to Article 15 of the Patient Rights Regulation, the physician must provide this information before beginning treatment. If informed consent is not obtained, the intervention is considered unlawful—even if medically correct—and may be classified as malpractice.
The Court of Cassation has established that the burden of proving that the patient was informed and provided consent rests with the physician.[5] Therefore, the information provided and the consent obtained should be documented in writing and tailored to the circumstances of the specific patient, rather than relying on generic forms.
In conclusion, informed consent is not only a legal requirement but also one of the fundamental principles of patient rights and medical ethics.
5. Malpractice or Complication?
Whether an undesired outcome following a medical procedure constitutes malpractice or a complication is generally determined through expert medical reports. However, the Court of Cassation emphasizes that the evaluation should not focus solely on the outcome; rather, the physician’s conduct before, during, and after the intervention must be assessed in terms of diligence.[6]
The expert must examine, in detail, whether the necessary medical precautions were taken, whether the risks were adequately explained to the patient, and whether the physician intervened appropriately and in a timely manner if a complication occurred.
Conclusion
Each medical intervention has its own specific circumstances; the same event may be considered a complication in one case and malpractice in another. Therefore, every situation must be assessed within its unique medical and legal context.
For a detailed legal evaluation and tailored advice regarding your specific matter, you may contact us at +90 542 562 01 49 or email us at info@lotuslawfirm.com.tr.
META AÇIKLAMASI
Learn the difference between medical malpractice and complication in simple terms. Understand your rights, what doctors are responsible for, and how Turkish law protects patients.
[1] Turkish Court of Cassation (Yargıtay), 13th Civil Chamber, Decision E.1994/8557, K.1994/2138 (4 March 1994).
[2] Turkish Court of Cassation (Yargıtay), 13th Civil Chamber, Decision E.2014/26571, K.2015/33584 (18 November 2015).
[3] Hatice Nur Aktaş, Liability and Complication in Medical Malpractice (Master’s Thesis, Ankara Yıldırım Beyazıt University, Institute of Social Sciences, Private Law Department, Ankara, 2021), pp. 45–66.
[4] Dr. Zeynep Özcan & Ayşe Betül Özcanoğlu, “Evidentiary Issues Arising from the Distinction Between Malpractice and Complication in Light of the Case Law of the Court of Cassation,” Journal of the Court of Jurisdictional Disputes, Year 8, Issue 16 (December 2020), p. 297.
[5] Turkish Court of Cassation (Yargıtay), 13th Civil Chamber, Decision E.2006/10057, K.2006/13842 (19 October 2006).
[6] Turkish Court of Cassation (Yargıtay), 13th Civil Chamber, Decision E.2009/13214, K.2010/3694 (23 March 2010).