Malpractice: How to Protect Yourself from Physician Errors
“EVERY PHYSICIAN IS RESPONSIBLE FOR EVERY INTERVENTION HE MAKES.”
Malpractice: How to Protect Yourself from Physician Errors
In recent years, medical malpractice lawsuits have become a major problem in the field of healthcare. Physicians’ malpractices can seriously threaten the health of patients, which is the beginning of a long journey for victims. However, it is very important to know your rights and understand what you need to do in this process.
What is a doctor’s error malpractice lawsuit?
It is a lawsuit filed when a healthcare provider (e.g., doctor, nurse, or hospital staff) harms a patient by failing to meet professional standards or perform due care.
Malpractice; It can be defined as a situation of harm caused by a healthcare worker violating his obligation to care for his patient. This can include situations such as misdiagnosis, incorrect treatment, or providing inadequate information. However, we must not forget that the mere existence of a health error is not enough to make a malpractice claim; Actual damage must have occurred as a result of this error.
In order to file a malpractice lawsuit;
Making a visible mistake while diagnosing the patient, delaying the diagnosis, neglecting the patient by not performing the necessary tests,
Incorrect, incomplete or erroneous treatment to be applied to the patient, Error or negligence in the use of medication, etc., surgical errors and negligence,
Lack of organization of the hospital or practice, lack of adequate doctors or equipment, consultation situations,
Consultation → A disease or a condition in a patient may be a matter of concern to more than one branch of medicine. In such a case, the physician should seek help from doctors of other fields. This is called a consultation.
Failure to provide the necessary care after the medical intervention applied to the patient, lack of care for the patient, indifference,
It must be shown that the doctor acted contrary to standard medical practice or did not exercise the level of care and attention that would normally be expected during the procedure.
To file a lawsuit with a malpractice claim, it must be shown that the patient has been harmed. This damage can be physical, emotional, or financial. There must be a causal relationship between the doctor’s error and the patient’s harm. In other words, it should be shown that this behavior directly caused the patient to be harmed as a result of the doctor’s error.
Malpractice Criminal Liability;
“In Article 13 of the Turkish Medical Association (TTB) Rules of Professional Ethics in Medicine, it is generally defined as follows: Harm to a patient due to ignorance, inexperience or indifference means “malpractice of medicine”.
“Negligence” occurs in cases where there is inexperience, ignorance and indifference by the physician and the relevant health institution in violation of the rules. Pursuant to Article 22/2 of the TCK No. 5237, the crime of malpractice, negligent injury and negligent homicide comes to the fore.
As a result of malpractice caused by a physician or health institution due to fault, as a result of the death or injury of the patient, TCK 85. Or 89. The provisions of the article are applicable.
Malpractice Compensation Liability;
The grounds of the physician’s liability due to malpractice can be listed as follows: Breach of contract, tort and acting without a power of attorney. As a rule, liability is contractual liability. However, in cases where there is no contract between the physician and the patient, tort liability will be in question.
Types of Compensation
a. Financial Compensation
Patients and their relatives have the right to claim material damages incurred due to malpractice. As an example of financial compensation claims; treatment and hospital costs, loss of earnings, extra surgery costs, compensation for deprivation of support, funeral expenses, travel and accommodation fees. While only the patient himself can claim the loss of earnings, the patient’s spouse, parents and children will be able to claim the compensation for deprivation of support in the event of the patient’s death.
b. Non-Pecuniary Damages
In order to compensate for the moral damages suffered by the patient and their relatives due to malpractice and the decrease in their personal values due to these damages, an amount of moral damages that will not lead to the enrichment of the injured person may be requested.
Jurisdiction and Jurisdiction
In compensation lawsuits filed due to breach of contract;
As a rule, compensation lawsuits to be filed against physicians and private hospitals due to malpractice will be filed due to breach of contract, and the court in charge of these cases will be the “consumer court”.
In compensation lawsuits filed based on tort liability;
In cases where there is no contractual relationship between the physician and the patient, the compensation cases to be substituted by going to tort liability will be heard in the “civil court of first instance”, which is the court of general jurisdiction.
Doctor’s Error (Malpractice) Compensation Lawsuit Statute of Limitations
A lawsuit for compensation due to malpractice based on service defect against public hospitals such as state hospitals, research hospitals, university hospitals, family health centers is filed in the administrative court. Before filing a lawsuit in the administrative court, a written application with a claim for compensation must be made to the relevant administration within 1 year and in any case within 5 years following the learning of the damage and the physician’s error. If the application is denied, a full judicial action may be filed for malpractice.
If the administration rejects the written claim for compensation submitted to it by the person concerned, in whole or in part, a lawsuit for compensation for doctor’s error must be filed by applying to the administrative court within 60 days following the rejection of the application. If the compensation request is not answered by the administration within 30 days, it is interpreted as the rejection of the compensation request of the person concerned. A lawsuit can be filed due to malpractice within 60 days after the claim for compensation is considered rejected.
The extended statute of limitations arising from criminal law does not apply to lawsuits filed against the administration. Doctor’s error lawsuits to be filed against private hospitals or doctors due to tort are time-barred after 2 years after the damage and the indemnity obligation are learned, and in any case 10 years from the date of the act. However, if the right to compensation arises from an act that causes a penalty that requires a longer statute of limitations according to the criminal law regulations, the provisions of the criminal law are taken as the basis when determining the statute of limitations.
A 5-year statute of limitations is stipulated in malpractice lawsuits to be filed against a private hospital or physician based on a power of attorney agreement or a work contract.
If the physician engages in a grossly defective medical practice, there is a statute of limitations of 20 years, regardless of the nature of the grossly defective procedure.
A 10-year statute of limitations applies to compensation lawsuits for doctor’s error filed due to working without a power of attorney without obtaining consent before performing medical intervention on the patient.
Criminal lawsuit statute of limitations does not apply to malpractice compensation lawsuits filed due to breach of contract.
Finally, it should be noted that plastic surgeries are also considered within the scope of the work contract.
Mediation process in malpractice cases
In malpractice cases; It is obligatory to consult a mediator before filing a lawsuit before the court. Your lawsuit filed without resorting to mediation will be dismissed due to procedural deficiencies.
Finally, what you need to do step by step to seek your rights in a malpractice lawsuit;
- Access the Necessary Documents: Gather all the documents related to your treatment process (hospital records, prescriptions, x-rays, etc.). These documents will be critical to supporting your claims.
- Get an Expert Opinion: Contact another healthcare professional to have the incident evaluated. Expert opinion will be helpful in ensuring the validity of your malpractice claim.
- Contact a Lawyer: Since malpractice cases are highly technical and sensitive, it is important to seek support from a health law attorney who specializes in this field. This lawyer will take the actions required by the malpractice litigation process, collect evidence, and protect your rights.
- Litigation Process: If all the conditions are eligible, you can start the process of filing a lawsuit for compensation. This stage is important in terms of putting your claims in a legal framework.
After all…
One wrong decision can darken a life; Every health service requires attention and care. Being a victim of malpractice can be a burden both physically and psychologically. No matter how great your wealth is, everything is lost when you lose your health. However, do not forget that it is vital to know your rights and take the right steps in this process where you are victimized by healthcare professionals. The error of a health professional is not just a medicological matter, but a slice of an individual’s life.
You can fight to protect yourself and hold those guilty accountable.
Remember that health is important for everyone, and if you encounter a situation that negatively affects your health, you are not alone. We are together in the search for rights!
