In daily life, we have to take the road to the hospital whether we want to or not. So much so that sometimes we want to go to the doctor even for a mild headache that we cannot diagnose.In fact, as we get older, doctors become almost our greatest friends.For this reason, medical science has had a separate place in every stage of history.Undoubtedly, the most important reason for this is that the subject of medical science constitutes human life and is a completely unique field of expertise.Because an incorrect diagnosis and subsequent incorrect treatment can turn a person’s life upside down, as well as even lead to the complete termination of his life. For this reason, the practitioners of medical science, that is, the responsibilities of doctors, are heavy in every aspect.So what should we do if this responsibility is violated by doctors?
Law, as an institution that judges all areas of life, also has the final say in the field of Health.For example, the appointment / assignment of a doctor to a hospital and even the collection of medicines from pharmacies constitute the subject of administrative law, one of the subheadings of law.However, one of the rights guaranteed in our Constitution is the right to Health.
The right to health is guaranteed in our Constitution as follows:
The inviolability of a person, his material and spiritual existence
ARTICLE 17- Everyone has the right to life, to protect and develop his material and spiritual existence.
Except for medical obligations and cases written in the law, the integrity of the person’s body cannot be touched; it cannot be subjected to scientific and medical experiments without his consent.
Health services and environmental protection
ARTICLE 56- Everyone has the right to live in a healthy and balanced environment.
It is the duty of the State and citizens to improve the environment, protect environmental health and prevent environmental pollution.
The state organizes health institutions to plan and provide services from a single source in order to ensure that everyone continues their lives in physical and mental health; to increase savings and efficiency in human and material power, and to realize cooperation.
The state fulfills this duty by taking advantage of its health and social institutions in public and private sectors and supervising them.
General health insurance may be established by law for the widespread provision of health services.
As can be seen; Our Right to Health is also guaranteed in our Constitution, which we accept as the guarantee of our fundamental rights and freedoms.So, despite these assurances, if we have been victimized due to the doctor’s mistake, will we be able to hold the doctor responsible?In other words, how do we hold the doctor/hospital management or the state that assures us accountable?
The doctor or the hospital is obliged to compensate the damages caused by all the mistakes made during the treatment phase. In this case, patients should defend their rights by filing a lawsuit for compensation for damage.
It is also contrary to the legal relationship between the doctor or the hospital to harm the patient due to the fact that he does not perform his duty of care or treatment fully or Decisively or incompletely. For this reason, the doctor is obliged to compensate the material and moral damages caused to the patient as a result of incorrect treatment separately as material compensation and moral compensation.
However, the undesirable result that occurs as a result of a treatment will not always be evaluated in this way. The harm suffered by the patient; the doctor’s or the hospital’s;
– Ignorance,
– Inexperience,
– Lack of Care,
– Carelessness,
– Imprudence,
– Incompetence,
– Failure to Follow the Rules,
if it has occurred for one of the reasons, there is a “medical error”, that is, a “doctor’s error”, and in this case, we have the right to file a claim for material and moral compensation.
And to whom should hostility be directed in the case we will open?In other words, in the case that we will open as a plaintiff, who will be the other party to the defendant?Here, we need to make 2 distinctions in the form of incorrect treatments originating from public hospitals and originating from private hospitals:
1) WRONG TREATMENTS IN PUBLIC HOSPITALS
Compensation cases arising from the defects committed by civil servants and other public officials in the exercise of their powers can only be filed against the administration, that is, the state, to which the hospital is affiliated. The administration is obliged to compensate for the losses caused by the “defect of service” of doctors who are public servants.Therefore, the medical responsibility for the treatment carried out in public hospitals lies with the state.Therefore, we will have to file a Full Judicial Case in the Administrative Courts in the case we will open due to the problems caused by public hospitals.
2) WRONG TREATMENTS IN PRIVATE HOSPITALS
There is an employer/employee relationship between private hospitals and doctors working within the hospital. Dec.For this reason, the private hospital that employs the doctor is responsible for the damage together with the doctor in his capacity as the person who employs and operates it. A lawsuit for compensation should be filed against the doctor and the private hospital.Therefore, in the case we will open, we will have to file a claim for material / moral compensation in the Judicial Jurisdiction by showing both the doctor and the hospital as the defendant.
As a result; If we are victimized due to the wrong of the hospital or the doctor, we should use our legal right in case the conditions mentioned above have also occurred and we should definitely benefit from the help of a lawyer who is an expert in his field in this process.
The Supreme Court Decisions that we think will benefit our subject are as follows:
T.C.
SUPREME
4.law office
E.2016/8262
K.2016/10219
T.19.10.2016
REQUEST FOR MATERIAL AND MORAL COMPENSATION DUE TO TREATMENT ERROR (Damage Suffered by the Defendant, Who Is a Doctor at the University Medical School, as a Result of the Pacemaker Provided by the Other Defendant Company to the Plaintiff by Surgery – A Lawsuit Cannot Be Filed in Administrative Courts Against Real and Private Legal Entities / The Plaintiff Claims That the Defendant Suffered Damage Due to the Actions of the Company, Jul-de-sac Will Be the Place of Resolution of the Case from the Point of View of the Defendant Company)
The Administrative Organization of the need to be seen of cases has not been the case in judicial proceedings ( other defendant who is a doctor in medical school and university that you provide to the company by the defendant the plaintiff with the operation of the pacemaker due to compensation of the damage suffered as a result of attaching to real and legal persons of private law could not be prosecuted in court against the administrative/legal entity of the company, the plaintiff suffered damage due to the action of the defendant that the defendant is present in the request and forth from the direction of the company can be seen in the case of judicial proceedings )
SUMMARY: The case is related to the request for material and moral compensation due to the treatment error. In the incident that is the subject of the case; The defendant, who is a doctor at the University Medical Faculty, requested material and moral compensation by stating that the pacemaker provided by the other defendant company was damaged as a result of the surgical insertion of the plaintiff. Jul. Only the relevant administrative organization can be sued in the places of administrative jurisdiction. According to this legal regulation, a lawsuit cannot be filed in administrative courts against real and private legal entities. Since the plaintiff claims that he has suffered damage due to the actions of the defendant company, which is a legal entity, and makes a request, the judicial jurisdiction is the place of hearing and resolution of the case from the point of view of the defendant company. While a decision should be made by the court in accordance with the conclusion to be reached by examining the merits of the defendant company, the decision should be overturned because the rejection of the lawsuit petition due to the court’s non-duty in terms of the judicial method is not in accordance with the procedure and the law.
LITIGATION : the complaint against the defendant by the plaintiff’s attorney with pecuniary and non-pecuniary damages made by the trial court on the request for at the end of hostility from the direction of the defendant due to the denial of judicial review of the case from the direction of the other defendants due to the decision of the Supreme Court of examination as requested by the plaintiff’s attorney within the time period, but once the petition of Appeal has been decided upon the adoption of the examination by the judge with the report was discussed by examining the papers in the file:
DECISION: 1- ) According to the articles in the file, the evidence on which the decision is based, and the compelling reasons in accordance with the law, the plaintiff’s appeals against the defendants … and … should be rejected,
2- ) The other defendant of the plaintiff … Ltd. Şti. as for the appeals related to;
The case is related to the request for material and moral compensation due to the treatment error. The court decided to dismiss the case due to the absence of hostility and lack of duty; the verdict has been appealed by the plaintiff’s attorney.The plaintiff, by the defendant during heart surgery at University Medical Faculty Hospital … the doctor, the pacemaker is inserted in the other defendant supplied by the company, however, the pacemaker because of failure to exercise the function in question is faulty and can be operated in another hospital again and a new pacemaker is inserted, and thus you are free of health problems by stating he wanted his education material and moral damages from the defendant.
The court rejected the case filed against the defendant … due to the absence of hostility, and the case filed against the defendant Company and … was decided to dismiss with a bet, since it should be heard in the administrative court.
In the incident that is the subject of the case; … The defendant, who is a doctor at Jul University Medical School, has filed a claim for material and moral compensation stating that he suffered damage as a result of the pacemaker provided by the other defendant company being surgically inserted into the plaintiff. 2 Of the Administrative Trial Procedure Law No. 2577 on who the hostility will be directed to in cases to be opened in administrative judicial places. in accordance with the article, only the relevant administrative organization can be sued in places of administrative jurisdiction. According to this legal regulation, a lawsuit cannot be filed in administrative courts against real and private legal entities. Since the plaintiff claims that he has suffered damage due to the actions of the defendant company, which is a legal entity, and makes a request, the judicial jurisdiction is the place of hearing and resolution of the case from the point of view of the defendant company.
In this case, by the court, the defendant in terms of the company should be made an appropriate decision to be reached by examining the result of the essence when written with respect to the court’s judicial review on the grounds of not gorevsizlig because of the petition to be rejected because it didn’t comply with the law and procedures, the reversal was required.
CONCLUSION: It was unanimously decided on 19.10.2016 to OVERTURN the appealed decision for the reason shown in paragraph (2) above, to reject the plaintiff’s other appeals for the reasons shown in paragraph (1), and to refund the fee received in advance if requested
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