Can a Case for Material and Moral Compensation Be Filed For Compensation Of The Damage Caused By the Defects Of The Doctor And the Private Hospital During Diagnosis And Treatment – Supreme Court Decision

T.C. SUPREME

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Basis: 2013/26332
Verdict: 2014/5046
Decision Date: 25.02.2014

COMPENSATION CASE – DAMAGE CAUSED DUE TO THE DEFECTS OF THE DOCTOR AND PRIVATE HOSPITAL DURING DIAGNOSIS AND TREATMENT – WHAT KIND OF INTERVENTION AND PROCEDURES WERE CARRIED OUT WITH WHAT SHOULD BE DONE – DECISION BASED ON THE RESULT BY RECEIVING A REPORT SUITABLE FOR SUPREME COURT SUPERVISION

SUMMARY: The case is related to the claimant’s request to remedy the damage caused due to the defects of the defendant doctor and the private hospital who undertook the diagnosis and treatment of the plaintiff during the diagnosis and treatment. In the event the work to be done by the court, will be chosen from the relevant disciplines of the University, and diseases of the eye, composed of a board of expert witnesses, through the defendants ‘ legal position and responsibilities and, together with the current evidence in the file, are evaluated as a whole, and what needs to be done, what are the interventions and processes, the need of Medicine and according to the rules whether the defendant should be attributed to the defect in the event explaining the reasons for, parties, and thereby conducive to heed the supervision of the court and the Supreme Court is to decide on an appropriate report to the result to be achieved. It is contrary to the procedure and the law that the court has established a sentence by ignoring this aspect mentioned. It requires disruption.

(818 P. K. m. 321, 386, 387, 388, 390, 394) (4721 P. K. m. 4) (1086 Pp. K. m. 240)

Lawsuit: At the end of the trial of the material and moral compensation case between the parties, the file was examined upon appeal by the plaintiff’s lawyer within the period of the decision made to dismiss the case for the reasons written in the decision, and the case was discussed and considered Decisively.

Decision: the plaintiff found innate discomfort in his eyes, cataract problems due to the defendant and that the other defendant to the hospital by the doctor applied the dressings are necessary but after the surgery she was discharged had been operated by the situation went from bad to worse, he didn’t bring in acts of the defendants arising from the treatment instead of surgery that have suffered damage and his right eye will not be able to return back wrong, this situation is serious about life, psychology and social distress, the plaintiff dropped into, material and moral losses for malpractice occurred, noting that more in relation to the rights and claims without prejudice 250.000,00 TL material, 25.000,00 TL a total of 275,000 just spiritual,00 TL has prosecuted the claim of the defendant’s decision to demand and collection.

The defendants have requested that the case be dismissed.

The court decided to dismiss the case on the basis of the report of the Forensic Medical Institution and on the grounds that the procedures performed were in accordance with the rules of medicine, there was no medical error; the verdict was appealed by the plaintiff.

1- The case is related to the request of the defendant doctor, who undertakes the diagnosis and treatment of the plaintiff, and the private hospital to remedy the damage caused by their defects during diagnosis and treatment. The basis of the case is the proxy agreement and is based on the violation of the duty of care (BK 386-390.mad.) Although the proxy is not responsible for the failure to achieve the result that he turned to while performing the work subject to the mandate of the proxy, he is responsible for the damages arising from the lack of diligence of the efforts he made to achieve this result, the work and transactions he performed, his behavior. The responsibility of the deputy depends, in general, on the rules regarding the responsibility of the employee. He has to act diligently like a surrogate worker and is responsible for even the slightest defect (Art. BK 321/1). For this reason, all the defects of the doctor and the hospital that are within the professional field should be accepted as an element of responsibility, even if it is slight.

In order not to harm the patient, the surrogate must fulfill all professional conditions, determine the patient’s condition from a medical point of view on time and without delay, take the measures required by his concrete condition in full, determine and apply the appropriate treatment again without delay. In cases that cause even minimal Decisiveness, it is obliged to conduct research that will eliminate this hesitation and, in the meantime, take protective measures. When making a choice between various treatment methods, it is necessary to take into account the characteristics of the patient and the disease, to avoid attitudes and behaviors that will put him at risk, and to choose the safest way Dec. Indeed, the client (the patient) has the right to expect meticulous care and attention from the attorney who performs a professional job at all stages of treatment. A proxy who does not perform the duty of due diligence should be deemed to have failed to perform his/her power of attorney as required in accordance with the provision of Article BK 394/1.

The plaintiff in a concrete case; the discomfort in his eyes due to cataract in the right eye and an innate eye he saw even less of the defendant that the defendant was being operated on by the doctor 18/02/2010 other in the hospital, he was discharged after the surgery, but on the same day, intense pain and the discharge starts right in the eyes when she applied for the defendant by the same doctor again and the doctor was dressing in the eye, the defendant is not due to the defect of the right eye was damaged in the way at the back, stating that the material and moral damages claimed. The defendant hospital wished to Decry the unjust and unwarranted case by arguing that it had performed its actions perfectly, that there was no ill-founded connection between the plaintiff’s discomfort and the treatment, that the plaintiff was unfair in his claims. The other defendant doctor, on the other hand, stated that there was no defect that could be imposed on him, that he fulfilled the requirements of his duty, that the claimant’s request for material and moral compensation was unfair and exorbitant, and wished that the unjust and unwarranted case be dismissed. By the court, Forensic Medicine dated 16/12/2011 and numbered 9296 3. Based on the report of the Specialized Board, it was decided to dismiss the case. In the aforementioned report; supkapsu rear of cataract surgery and medicine and science made by the defendants that conform to the plaintiff’s condition as we can understand from the current file in the testimony of the doctor, the patient is operated to suppress the eye, therefore, camurlastig of the cornea (the inside collapsed) surgery may leak from the wound suturing of the incision with the idea that there had been noted that the action of this situation are of a nature that may occur with the patient, and also after this stage, the wound suturing to prevent leakage of the process conform to medicine and science, it has been reported that there is no attributable defect that can be attributed to the cataract surgery performed by the defendant’s doctor and the wound leakage repair operations performed by another physician afterwards.

As stated in the report, which is the basis for the decision, there is a claim that this complication occurred because the plaintiff pressed on the operated eye, but it seems that the plaintiff has objections to this issue. In this context, the expert report must necessarily meet the objections of the parties and be enlightening. The judge should also check whether the expert opinion is in accordance with the scope of the file (TMK.nun md. 4, HUMK.nun md. 240). The determined practices and case law of our department are also in this direction. For the reasons explained, the report of the Forensic Medicine Institution is insufficient and cannot be based on the verdict. Work to be done by the court in this case, will be chosen from the relevant disciplines of the University, and diseases of the eye, composed of a board of expert witnesses, through the defendants ‘ legal position and responsibilities and, together with the current evidence in the file, are evaluated as a whole, and what needs to be done, what are the interventions and processes, the need of Medicine and according to the rules whether the defendant should be attributed to the defect in the event explaining the reasons for, parties, and thereby conducive to heed the supervision of the court and the Supreme Court is to decide on an appropriate report to the result to be achieved. It is contrary to the procedure and the law that the court has ruled in writing by ignoring this aspect mentioned. It requires disruption.

2- According to the reason for the violation, there is no need to examine the plaintiff’s other appeals for the time being.

Conclusion: It was unanimously decided on 25.2.2014 that the decision was OVERTURNED in the interest of the plaintiff for the reasons described in the first paragraph above, and that there was no place to examine the plaintiff’s other appeals for the reasons described in the second paragraph.

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