Aesthetic Malpractice in Turkish LawIn case of medical failure of the surgeon, doctor, hospital or health center; patients and victims can claim on court for compensation due to aesthetic malpractice in Turkish Law.
Aesthetic operations have a number of features different from other medical interventions. When opening a lawsuit, the situation that results from the medically different, aesthetic operation and medical intervention is also legally different in that manner. The basic information about filing a lawsuit against the aesthetic doctor, surgeon and/or hospital, and the legal issues you should consider when you decide to file a lawsuit are explained below.
Plastic Surgery (Aesthetic Surgery)
Aesthetic medical interventions which aimed at visual improvement of human body are varied; such as nose beautification surgeries, hair transplantation, inserting silicone for breast enlargement, removal of moles that disrupt the outer appearance, laser application to the hairs in the body, removal of excess fat in the abdomen are included in the aesthetic surgeries. With these interventions, it is aimed to eliminate the unwanted image in the body and make it more desirable.
Aesthetic medical interventions in the field of surgical operations are considered as sub-branches of plastic and reconstructive surgery.
According to the Turkish law, medical intervention must include an indication condition, also referred to as a medical requirement, in order to be lawful. Aesthetic operations may be intended for direct treatment of illness or injury, or may involve indirect treatment without a disease or injury. Because aesthetic interventions also include psychological situations created by unwanted bodily image. Therefore, it is accepted that medical necessity exists in the form of psychological indication.
Aesthetic interventions have the treatment relationship between the patient or client and the doctor or physician, as in other medical interventions for the purpose of treatment. Interventions for non-treatment and beautification purposes are handled within the scope of the work contract. In a dispute over a rhinoplasty (aesthetic nose surgery) intervention, the the Supreme Court of Turkey described the legal relationship between the patient and the physician as a “work contract”.
Doctors / Surgeon Responsibilities
The principal obligation of the physician or doctor is the diagnosis and treatment according to the proxy agreement. But in the work contracts, the physician who will perform the aesthetic intervention has to generate and complete the work. The debts and liabilities of the plastic surgeon arising from medical interventions for aesthetic purposes in accordance with the Turkish law for the work contracts can be listed as follows;
- Obligation to chose the most appropriate treatment for diagnosis
- Obligation to generate the work,
- Debt of doing the work in person,
- Debt of loyalty and care,
- Obligation to the patient illumination, to be informed.
Aesthetic interventions aimed at beautification in terms of liability are distinguished from other medical interventions in terms of the nature of the work contract. The surgeon is obliged to guarantee the liability against shame in addition to the other doctors liabilities. That is, in addition to the debt of care, surgeon can also be held responsible for not generating the result. This will require more care for the surgeon. In the doctrine, in cases where it is not possible to undertake surgical aesthetic interventions, the work contract is not counted as a work contract and the need for the implementation of the proxy contract might be also claimed.
It should be noted that the responsibility of doctor for medical malpractice in aesthetic surgeries is the responsibility of the defect. The criterion for this responsibility of the surgeon is based on an experienced specialist doctor. According to the Turkish Law (TBK 115.3), since the aesthetic interventions are considered as the field of practice of the medical profession requiring expertise, if the terms in the contracts state that the surgeon shall not be responsible for the slight defect or any defect, those terms are considered null and void for the contracts between the surgeon or doctor and the patient.
The doctor, physician or surgeon who will perform the aesthetic intervention should inform the patient about the intervention to be performed, explain the intervention in detail, and illuminate the patient in a way that the patient understands.
Informing the patient is one of the legal requirements of the medical intervention, if the patient is not adequately illuminated, the medical intervention is unlawful and the patient may claim to the doctor.
The patient should be informed of all necessary information within the scope of the medical intervention. Since serious changes shall occur as a result of medical intervention, the physician should clarify and explain the intervention and possible results to the patient and the information should be more detailed in aesthetic interventions that are not intended for treatment. Because work contract shall be applied instead of proxy contract when there is no treatment for medical intervention like plastic surgery according to Turkish Law.
Since there may be irreversible situations after the medical intervention, the patient to be treated should be given an appropriate time to make the right decision. The informing should be done one day before the medical treatment for the most appropriate. The duration of the informing should be kept longer because the informed consent is more important in applications with a high risk, wide scope or requiring further intervention and the results are permanent.
It should be noted that the possible risks for information are of subjective importance to the patient. In aesthetics where the image is vital if there is an actor or photomodel for example after aesthetic intervention, the scar that may remain on the face of these people should be clearly and absolutely explained in detail.
If the patient is a child, the legal guardian (generally father and mother) should be informed. In such cases, the child should be informed as much as he / she can understand, and as much as possible, their participation in the process and treatment should be ensured.
The main stages of information are treatment (safety) informing, decision (diagnosis, process, risk) informing, post-treatment informing as follows:
- The treatment (safety) informing is intended for the patient's informed consent. It is pre-informing of the patient for safety like current health status of the patient, for process of the treatment to be applied, for drugs to be used.
- In the diagnostic informing, the causes of the disease are explained to the patient, and the disease and possible complications are explained to him / her.
- The process informing is to provide the patient with detailed information about the process before and after the intervention.
- Risk informing is to inform the patient about possible complications.
- Post treatment informing is post-informing regarding after treatment is to explain to the patient what he / she needs to pay attention for rapid recovery.
If the doctor does not inform the patient properly, the medical intervention will be deemed unlawful, and even if the doctor does not have a fault, the responsibility of the doctor will arise from all negative consequences of the intervention. Failure to inform the patient of the content and possible consequences of the surgical procedure, in order to avoid fear of the patient, may constitute a violation of the obligation to inform for the surgeon.
There is no specific shape requirement for medical informing, it also can be verbal. However, the form of the information and the consent of the patient should not be in the form of a consent letter with general and abstract statements and forms. Information about medical treatment should be included the chance of success of the method, possible alternatives of the intervention and treatment, the duration of application and treatment, the risks that exist for the disease, the possible consequences and the complications that may occur.
Since medical intervention is a violation of body immunity, this intervention becomes lawful only with informed consent. It should be noted that the proof of fulfillment of the obligation of information and informed consent is on the physician and the hospital in accordance with the Turkish Law.
Malpractice - Medical Failures
Lawsuits filed due to malpractice in aesthetic operations mostly arising from breach of care. In a decision of the Supreme Court, evaluated the aesthetics of the patient's abdominal region and considered the legal liabilities of the contract between the parties as a work contract, and emphasized the obligation of loyalty and diligence of the the doctor and surgeon.
In the event of a legal defect, medical failure, malpractice after aesthetic surgery (such as if the face is not in the desired shape, the nose falls or breaks or the denture does not fit into the mouth), the customer or person whose plastic surgery failed (patient) have a right to claim / request one of the following optional rights:
- Remedy of the defect without paying any fee from the surgeon.
- Refund of the contract paid and the refund of the defective work.
- Price discount if the surgery can be accepted unwillingly in a defective shape
- Compensation for the pecuniary and moral damage caused by the defect.
Pecuniary Damages (Financial Compensation)
In aesthetic interventions, the financial losses incurred in the interventions and the expenses incurred for the operation and the loss of earnings and the future economic losses arising from the operation as considering pecuniary damages are covered by the financial compensation.
The party to cover the financial compensation must be borne by the physician, hospital, health center or public depending on where the aesthetic intervention is performed. Compensation should be given to the patient who has suffered the loss. In case of death of the patient, it may be decided to pay financial compensation to relatives and heirs.
Physical losses under the Article 54 of the Turkish Code of Obligations, the loss is calculated by taking into account the monthly income of the patient, possible working life and life expectancy.
Permanent or temporary losses and disability due to not able to perform the work properly. It is calculated according to the income and salary of the person at that time. This loss is calculated for a non-employed person by considering future work and income.
Future Monetary Effects
The external appearance of the patient refers to the loss caused by the loss of earnings, even if he / she cannot continue his / her previous job. Difficulties such as modeling, acting, or finding a partner, which are important in terms of appearance, should be taken into consideration in calculating the damage.
Non-Pecuniary (Moral) Damages (Spiritual Compensation)
Pursuant to Article 56 of the Turkish Code of Obligations, it is possible to file a lawsuit in order to provide the person who has suffered harm as an amount of non-pecuniary damage.
Non-pecuniary damage due to aesthetic intervention; arising from an ugly image of the individual can be expressed as pain, sorrow, sadness, grief and humiliation. In the assessment of non-pecuniary damage; gender, age, occupation, marital status, social life and personal situation of the person are taken into consideration.
In many aesthetic interventions, although the pain suffered due to the intervention is not generally high, it is possible for the patient to request non-pecuniary compensation in case of suffering after the intervention with unpredictable results. In case of the patient knew the pain he had suffered after the intervention with incomplete information before the intervention, then there would be non-consent to the intervention, so there is moral compensation.
Aesthetic Surgery Lawyer
Medical intervention, liability and damage should be assessed with the expert during and after the decision-making process to file a lawsuit against the aesthetic doctor. Legal advice from an experienced lawyer is strongly recommended for aesthetic (plastic) surgeries.
ISTLEGAL Law Office has been providing legal support in a professional manner for a long time to the clients who want to sue doctors, surgeons, health centers, hospitals due to accidents, undesirable situations and defective appearances in aesthetic interventions and plastic surgeries.