LEGAL RESPONSIBILITY OF THE PHYSICIAN

Entrance

The legal responsibility of physicians constitutes a significant part of health law and aims to protect the quality of healthcare services, ethical standards, and patient rights. In Türkiye, the legal responsibility of physicians is determined by various legal regulations and examined under two main categories: medical malpractice and ethical violations. This article will systematically address the scope, legal framework, and practical problems encountered in the legal responsibility of physicians.

I. Scope of the Physician's Legal Responsibility

The legal responsibility of physicians is assessed under two main areas: medical malpractice and ethical violations. The legal basis for these responsibilities is determined in Türkiye by the Code of Obligations (BK), the Turkish Penal Code (TCK), and various Ministry of Health regulations.

II Medical Malpractice

Medical malpractice is harm caused to a patient as a result of a physician acting without adhering to professional standards. In Türkiye, medical malpractice cases are generally handled within the framework of the liability provisions of the Code of Obligations and the penal provisions of the Turkish Penal Code.

 Within the Framework of the Law of Obligations

Article 41 of the Turkish Code of Obligations stipulates that "Parties to a contract must act in accordance with the principles of good faith and honesty during its performance." Physicians are held liable under Article 41 of the Code of Obligations when they fail to act in accordance with the contract they have made with a patient, and this results in harm to the patient. Here, the physician is expected to exercise due diligence and adhere to professional standards.

 Within the framework of the Turkish Penal Code

Article 85 of the Turkish Penal Code regulates the crime of "causing death or serious injury to a person intentionally or negligently." This article defines the criminal liability of physicians in cases of negligence in medical practice. The criminal sanctions that physicians will face if they intentionally or negligently cause harm to a patient are addressed within the framework of this article.

I.II. Ethical Violations

Physicians' ethical responsibilities are defined by professional ethical codes and health legislation. The ethical codes published by the Turkish Medical Association ensure that physicians respect patient rights and adhere to professional standards.

 Patient Information Obligation

The obligation to inform patients is based on general rules determined by the Ministry of Health. According to the ethical codes of the Turkish Medical Association, physicians are required to inform their patients about treatment options, risks, and possible outcomes. This obligation is a fundamental principle in the process of obtaining patient consent and ensures that the patient has full information throughout the treatment process.

 Privacy Protection

Respecting patient privacy is an ethical obligation for physicians. Article 8 of the Patient Rights Regulation published by the Ministry of Health stipulates the protection of patient information confidentiality: “Patients' health information may only be shared with the explicit permission of the patient or if required by law.” This regulation clearly defines the physician's obligation to protect the patient's personal data.

II. The Legal Framework of the Physician's Legal Responsibility

The legal responsibility of physicians is determined by various legal regulations. In Türkiye, these regulations comprehensively address responsibilities related to both medical malpractice and ethical violations.

II.I. Turkish Penal Code (TCK)

Manslaughter by Negligence Article 85- (1) A person who causes the death of another person through negligence shall be punished with imprisonment from two to six years. (2) If the act results in the death of more than one person or the death of one or more persons together with the injury of one or more persons, the person shall be punished with imprisonment from two to fifteen years.

Experimentation on humans Article 90- (1) A person who conducts a scientific experiment on a human being shall be punished with imprisonment from one to three years.

II.III. Ministry of Health Regulations

Regulations published by the Ministry of Health define the standards that physicians must adhere to in their practice. For example, the Patient Rights Regulation defines the rights of patients and the obligation of physicians to respect these rights. Furthermore, the "Medical Deontology and Ethics Rules" regulation details the ethical responsibilities and professional standards of physicians.

III. Practical Problems in the Legal Responsibility of Physicians

Problems encountered in the legal responsibility of physicians can stem from a variety of reasons. These problems include legal uncertainties, lack of training, and difficulties in implementation.

III.I. Legal Uncertainties

Legal uncertainties affecting the legal responsibility of physicians can lead to difficulties in implementation. In particular, uncertainties can arise regarding issues such as the establishment of standards and the role of expert opinions in medical malpractice cases. These uncertainties can create difficulties in determining a physician's responsibility and increase the complexity of legal processes.

III.II. Educational Deficiencies

The lack of adequate training among physicians regarding their legal and ethical responsibilities can lead to problems in practice. Continuous training on legal responsibilities enables physicians to better fulfill these responsibilities. Furthermore, increasing training programs to ensure compliance with ethical and professional standards may be necessary.

III. III. Implementation Challenges

The challenges physicians face in providing healthcare services can affect their legal responsibilities. For example, limited resources, heavy workloads, and systemic deficiencies can lead to malpractice. Overcoming these challenges impacts both the overall functioning of the healthcare system and the professional responsibilities of physicians.

 

3rd Civil Chamber, Case No. 2011/19821, Decision No. 2012/4726.

"Case Law Text"

COURT: PRIMARY CIVIL COURT

The plaintiff requested 5,000 TL in material damages and 5,000 TL in moral damages, along with interest and costs, from the defendant. The court dismissed the case, and the judgment was appealed by the plaintiff's attorney.
SUPREME COURT DECISION
After it was determined that the appeal request was within the time limit, all the documents in the file were read and considered. In the lawsuit petition; the defendant claimed that the plaintiff suffered pain and sensitivity in his teeth and gums to the doctor The plaintiff, who went to court, was fitted with 18 prosthetic teeth without any treatment of her gums, but her pain and complaints became unbearable, and further.. to the doctor The plaintiff, who left, was told that after her gums were treated, the prostheses needed to be replaced, and then the defendant dentist.. to your doctor Despite applying for treatment, her request was denied, whereupon she sought another to the doctor It was alleged that the plaintiff, who had been receiving treatment for months, paid 5,000 TL to a new doctor, and requested a decision for the collection of 5,000 TL in material damages and 5,000 TL in moral damages. The court dismissed the case on the grounds that the defendant's fault could not be proven, and the judgment was appealed by the plaintiff's attorney. The case concerns a claim for material and moral damages arising from the manufacture of a prosthesis. The underlying legal relationship alleged to have occurred between the parties is a "work" contract as defined in Article 355 of the Turkish Code of Obligations. The plaintiff is the contractor; the defendant is the owner of the work. In a work contract, the contractor undertakes to produce a result, namely a "work," when entering into a contractual relationship with the owner of the work. In this sense, a work is the tangible or intangible result of a work activity. In this respect, a work contract differs from a service contract. On the other hand, in a work contract, unlike the elements in an agency contract, at the end of the work; Since the aim is to achieve a specific desired result, and the contractor is obligated to create and deliver the work, a contract for the manufacture of a prosthesis is not an agency contract but a "work" contract. The contractor is obligated to perform the work undertaken in a work contract with loyalty and diligence. It is the contractor's duty of "loyalty" to perform the work in accordance with the trust placed in him by the client, in a manner that benefits the client, and to refrain from any action that would harm the client (Turkish Code of Obligations, Article 357). The degree of care that the contractor is obliged to show in the performance of his undertaking is similar to the duty of care that an employee is obliged to show in an employment contract (Turkish Code of Obligations, Article 321), according to Article 356/I of the Turkish Code of Obligations. However, as accepted in doctrine and practice, considering the contractor's independent work and expertise in the field, responsibility The duty of care is considered to be heavier than that of an employee working under an employment contract. The duty of care is regulated in Article 96 of the Code of Obligations responsibility It is a special form. The legislator, in the contract for work.. responsibilityBy not leaving the matter to the outcome of the contract and by establishing a specific provision, the court has shown the importance given to the duty of care. Accordingly, in case of contrary behavior, the client is only obligated to prove the existence and amount of the damage. The contractor, on the other hand, is obliged to prove that they took all necessary precautions, exercised due diligence, faithfully performed their obligation, and were not at fault. The contractor's duty of care continues until the delivery of the work and requires the contractor to refrain from causing damage to the client. In summary, the dispute should be resolved according to the legal rules explained and applicable in the concrete case. In the expert report on which the judgment is based, it is stated that the plaintiff worked for the defendant between February 9, 2007 and March 6, 2007 in the doctor He received treatment and had 14 dental prostheses fitted; he applied to the defendant again on April 27, 2007, and had a panoramic X-ray taken; these X-rays are images that help in the definitive diagnosis; and between May 23, 2007, he had a second, non-party consultation in the doctor It was stated that the plaintiff received treatment, that the treatments administered did not follow the order of urgency, but that it could not be definitively determined that the fault alleged by the plaintiff originated from the defendant. Although the court made its decision based on this report, the plaintiff was arrested on April 27, 2007 by the defendant to the doctor It is confirmed that he applied and a panoramic X-ray was taken. This X-ray is available in the file… Oral and Dental Health Chief Physician's Office According to the panoramic film in the report dated 14.12.2007, it was stated that the periodontal and endodontic treatments that should have been performed before starting prosthetic treatment were not performed to the necessary extent. Therefore, the plaintiff should have consulted a second doctor before the defendant in the doctor He had a panoramic film taken, second physician Considering that the imaging studies conducted during the treatment were also submitted to the file, and that a report should have been obtained from the Forensic Medicine Institute to determine whether the treatment was medically appropriate, whether it achieved the desired result, and whether the defendant was at fault, based on these panoramic films and imaging studies, the decision was made with an incomplete examination, which is incorrect and necessitates reversal. Therefore, the judgment rendered without considering the principles explained above is erroneous, and the appeals are justified for these reasons. Accordingly, the judgment is REVERSED pursuant to Article 428 of the Code of Civil Procedure, and the advance appeal fee shall be returned to the appellant upon request. The decision was made unanimously on February 27, 2012.

Conclusion

The legal responsibility of physicians is critical to the reliability and effectiveness of the healthcare system. The legal framework in Türkiye includes regulations concerning both medical malpractice and ethical violations when defining physicians' responsibilities. However, implementation problems and legal ambiguities can complicate the fulfillment of these responsibilities. It is essential for physicians to adhere to legal and ethical standards and receive continuous training to improve the quality of healthcare and protect patient rights. These regulations and implementation issues in health law play a significant role in ensuring the professional development of physicians and patient safety.