AESTHETIC and OTHER MEDICAL INTERVENTIONS, DOCTORS and THEIR LIABILITIES
MEDICAL INTERVENTIONS
Malpractice means medical error practices and is the harm to the patient due to the lack of knowledge, experience or miscondution. Patients who are harmed due to faulty aesthetic or medical practices may claim compensation against the hospital, medical center or doctor where the medical treatment was provided.
Although malpractice includes incorrect medical practices, the issues that are described as complications that cannot be predicted or cannot be prevented if foreseen are different subjects. As long as the complications are within normal limits, they do not constitute liability for compensation, but complications that ocur as a result of the doctor’s faulty practices give rise to the patient’s right to compensation.
LEGAL PROVISIONS TO BE APPLIED
Its essential to determine the legal relationship between the doctor and the patient in aesthetic operations. Because, depending on the nature of the medical practice performed, the provisions of “the contract of mandate” or the provisions of “the contract of work” may be applied. For instance, the provisions of the work contract apply to the procedures such as rhinoplasty and dental implants. As other examples, the provisions of mandate contract are applied in matters that do not have aesthetic purposes, such as organ transplantation and heart surgery. In this case, it varies depending on the nature and type of medical application performed, and a seperate evaluation must be mad efor each procedure.
OPERATIONS EVALUATED WITHIN THE SCOPE OF AESTHETICS
Aesthetic operations include some changes made on the body, and liposuction (fat removal), vaginal procedures, augmentation plasty (breast enlargement), dental implant and dental prosthesis procedures are evaluated within this scope. Aesthetic operations are not limited to these procedures only, and can be described as atesthetic depending on the content and the type of the operation. Since aesthetic procedures are considered within the scope of the work contract because a result is promised, the responsibility of the doctor, practise or hospital in this regard is heavier than medical treatments for therapeutic purposes.
COMPENSATION CASE DUE TO DEFECTIVE OPERATION
If the patient is harmed due to faulty aesthetic or other operations performed, the patient has the right to demand compensation. The scope of damage includes all kinds of material and moral compensation suffered by the patient. Here, the scope of pecuniary compensation includes other financial compensation items, including the service fee paid, other treatment expenses that the patient had to pay due to complications, loss of earnings suffered by the patient, and damages resulting from the deterioration of his economic future. The scope of non-pecuniary compensation includes pain, suffering, grief and suffering due to a faulty operation.
There are certain conditions for a patient who has suffered damage due to faulty aesthetic procedures or other operations to claim compensation. There must be a faulty medical practice by the doctor, a violation of material and moral integrity and damage, and a causal link between the doctor’s faulty medical practice and the damage suffered by the patient.
In assessing the pecuniary damages suffered by the patient, the damage is calculated by an expert using certain calculation methods. While calculating the damage by the expert, a report is prepared by taking into account the doctor’s fault before, during or after his medical practice and the damages that occurred to the patient as a result. The courts also award pecuniary compensation in accordance with this expert report. In terms of moral damage, non-pecuniary compensation is calculated by evaluating the pain, grief, suffering and suffering experienced by the person.
POINTS CONSIDERED WITHIN THE SCOPE OF COMPENSATION
A patient may suffer harm due to aesthetic procedures or other operations performed by a doctor in various ways. Here, the doctor may be held responsible if the aesthetics performed do not comply with the promised result or if complications occur after the medical procedure.
Supreme Court of Appeals, 15. Civil Chamber E. 2018/479, K. 2018/1458 ve T. 10.04.2018
“In aesthetic operations, the contractor, that is, the doctor who performs the aesthetic operation, is obliged to fulfill his actions in accordance with the purpose and wishes of the employer, that is, the patient. Although the deformity in the plaintiff’s nose is medically defined as a complication, since the nature of the work contract guarantees the result, the deformity in his nose must be corrected with a second operation.” Since it is understood from the information and reports in the file that this is necessary, an additional report was received from the last expert board as to whether the price paid by the plaintiff due to the re-surgery was fair, considering the information and documents presented in the attachment of the document dated 10.07.2015 and the invoice dated 25.07.2014 in the file, and this fee was adjudicated. “It was not correct to reject the request for full financial compensation when it should have been received, and it was deemed appropriate to reverse the decision.”
Supreme Court of Appeals, 15. Civil Chamber, E. 2018/182, K. 2019/930 ve T. 04.03.2019
“In case of complications, it is the contractor’s (physician’s) responsibility to ensure proper disclosure and complication management. In the report taken by the court, it was stated that the plaintiff had a painful mass in the upper medial part of the left chest, a painful hard mass in the lower part of the right breast, 3 cm surgery scars under both breasts, the left breast appeared larger, the right breast appeared larger. It has been stated that it looks more saggy than the left. When the concrete incident is evaluated, it is understood that the aesthetic intervention performed on the plaintiff did not result in the benefit of the plaintiff business owner and that the aesthetically smoother and upright position of the breast did not occur as originally intended. In this case, since the defendant doctor did not perform his work in accordance with the contract, the refund of the paid amount of 5.178,00 TL and non-pecuniary damages at the appropriate rate should have been awarded, but it was not correct to decide to reject the case, and the decision was deemed appropriate to be reversed. …”
Supreme Court of Appeals, 15. Civil Chamber, E. 2019/2716, K. 2019/3692 ve 30.09.2019
“…according to the scope of the file, it is understood that the deformity that occurred after the operation performed by the defendant and could not be corrected was corrected by another specialist. In his defense, the defendant stated that they called the plaintiff for the second operation, but he did not come. The defendant’s performance includes a commitment to results in accordance with the provisions of the work contract regulated in the Code of Obligations, and it is understood that this commitment was not fulfilled in the first operation. Since the plaintiff, whose trust has been shaken, cannot be expected to go to the defendant for the second operation, it was not right to make a decision based on an incomplete examination, although the plaintiff’s expenses for the nose-related aesthetic operation should be calculated with a report from a new expert panel and an evaluation should be made in terms of the claim for non-pecuniary damages.”
As can be seen above, the doctor has great responsibility for aesthetic medical interventions and other operations performed by doctors, offices, medical centers or hospitals. If patients suffer/harm as a result of faulty medical interventions, patients have the right to claim all material and moral damages suffered. Patients who request the necessary legal assistance in this regard can contact our office and receive the necessary legal assistance.
Av. Mehmet Said SARIBAŞ
info@saribasakbaba.av.tr
