If you think of medical malpractice under Turkish law as a painting, the doctor is the painter, the patient is the canvas, and the law is the frame that says what counts as “art” and what counts as “damage.”
Sometimes a bad result is like a crack in old varnish – a complication that could happen even if the artist did everything right. Sometimes it’s a crooked line cut straight through the face of the portrait – a preventable mistake. Turkish law spends a lot of time trying to tell those two apart.
1. The legal canvas: which rules shape medical malpractice?
Medical malpractice in Türkiye is not gathered in a single “Medical Malpractice Code.” Instead, it’s painted across several layers of law:
- Turkish Code of Obligations (TCO) No. 6098 → general rules on tort and contractual liability, including compensation and statute of limitations.
- Turkish Penal Code (TPC) No. 5237 → crimes such as negligent injury (taksirle yaralama) and negligent homicide (taksirle öldürme).
- Fundamental Law on Healthcare Services No. 3359 → basic organisation of health services and some liability/recourse mechanisms for public institutions.
- Patient Rights Regulation → informed consent, access to records, dignity, complaint mechanisms.
- Compulsory Financial Liability Insurance for Medical Malpractice → mandatory professional liability cover for physicians.
On top of this, there are countless Yargıtay and Danıştay decisions that fill in the details: what is “standard of care”? When is consent valid? What counts as a complication rather than negligence?
2. What is “medical malpractice” in the eyes of Turkish law?
Legally, not every unwanted outcome is malpractice. Turkish doctrine and case-law typically look for four core elements, like four colours mixed on the same palette:
- Duty of care
- There must be a treatment relationship: hospital admission, clinic visit, surgery, etc.
- Breach of the standard of care
- The doctor or institution deviated from accepted medical practice (lex artis) – wrong drug, wrong dose, ignoring clear symptoms, failing to monitor, operating on the wrong side, etc.
- Causation
- That deviation must be linked to the harm; it is the brushstroke that actually ruined the picture, not just a mark somewhere in the margin.
- Damage
- Physical injury, worsening of condition, loss of chance, financial loss, or non-pecuniary damage (pain, suffering, loss of quality of life).
If one of these colours is missing, the painting may be ugly, but it is not, in law, “malpractice.”
A central distinction in Turkish practice is between:
- Unavoidable complications → accepted medical risks, even with proper technique and care;
- Preventable errors → cases where another competent physician in similar circumstances would almost certainly have avoided the result.
Courts lean heavily on expert reports – often from the Forensic Medicine Institute or university hospitals – to decide which side of that line a case falls on.
3. Three dimensions of liability: civil, criminal, disciplinary
Think of a single brushstroke that goes wrong. The same stroke can be criticised in three different galleries:
3.1. Civil liability – compensation
Under the Code of Obligations, the patient (or relatives) may seek pecuniary and non-pecuniary damages when a negligent medical act causes harm.
- Private hospitals / private doctors
- Claims usually go to civil or consumer courts (often treated as consumer disputes).
- The hospital is typically liable both for its own organisational faults (insufficient staff, poor equipment, record-keeping) and vicariously for its employed doctors and nurses.
- Public hospitals and some university hospitals
- Here, the painter works for the State. Claims are generally brought as full remedy actions (tam yargı davası) before administrative courts, based on service fault (hizmet kusuru).
In both settings, the patient is asking the law to “restore the canvas” as far as money can: treatment costs, loss of earnings, and moral damages.
3.2. Criminal liability – negligent injury or death
Where the conduct crosses a certain threshold, the same facts may also engage the Penal Code:
- Negligent injury (taksirle yaralama)
- Negligent homicide (taksirle öldürme)
The State then evaluates not just “was the painting ruined?” but “was the way it was ruined criminally blameworthy?” Criminal proceedings may run in parallel with civil or administrative claims.
3.3. Disciplinary liability – professional sanctions
Separately, doctors can face disciplinary investigations by professional chambers or administrative bodies:
- Warning, fine,
- Temporary suspension,
- In serious cases, steps that effectively end a professional career.
So one surgical error can result in:
- Money damages,
- A criminal record,
- A damaged licence – three galleries, three very different consequences.
4. Informed consent: the sketch beneath the paint
In painting, the underdrawing – the first sketch on the canvas – is often invisible in the final work but absolutely decisive for its structure. In Turkish medical law, informed consent plays a similar role.
- Constitutional basis: Article 17 of the Constitution protects bodily integrity and forbids medical intervention without consent except in cases expressly allowed by law.
- Patient Rights Regulation: guarantees the right to be informed, to consent, to refuse or stop treatment, and to access records.
For consent to be valid:
- The patient must receive clear, understandable information about diagnosis, proposed intervention, main risks, alternatives, and consequences of refusal;
- The decision must be voluntary;
- The patient must have capacity;
- The process should be properly documented, usually via a consent form coupled with an explanation.
Recent studies of high-court decisions show a striking pattern: in a large share of malpractice cases, Yargıtay and Danıştay have overturned lower-court judgments or ruled against physicians specifically because informed consent forms were missing or incomplete, even where the medical technique itself was defensible.
In other words: even if each brushstroke is technically acceptable, if the painter never told the owner what he planned to paint, the law may still find fault.
5. Burden of proof and expert reports: who must show the “wrong stroke”?
On paper, under general civil-procedure and tort principles, the patient (plaintiff) must prove:
- the error,
- the damage,
- and the causal link.
In practice, however, the situation is more nuanced:
- Medical records, operation notes, nursing charts and consent forms are all in the hands of the hospital or clinic.
- Courts therefore often expect the healthcare provider to produce complete records and demonstrate adherence to accepted practice.
- When documentation is poor or missing, this evidentiary imbalance often plays against the provider, especially on issues like informed consent and postoperative follow-up.
The heart of any medical malpractice file is usually the expert report:
- Panels of specialists examine the file and answer:
- Was the indication for treatment correct?
- Was the technique appropriate?
- Were complications managed according to guidelines?
- Would the same damage probably have occurred even without the alleged error?
You can think of the expert report as the art critic that tells the court whether what happened on the canvas is a forgivable crack in old paint or an inexcusable slash.
6. Statute of limitations: how long does the painting stay on the wall?
Time limits are strict and can kill an otherwise strong claim.
For civil compensation claims based on tort, Article 72 TCO provides:
- 2 years from the date the injured party learns of the damage and the responsible person,
- In any event, 10 years from the date of the act.
If the medical act is also a criminal offence and penal law prescribes a longer limitation period, that longer period applies to the civil claim as well (the so-called “extended criminal statute of limitations”).
For administrative full remedy actions (public hospitals), separate limitation rules and pre-action application periods apply; missing them can bar the claim entirely.
So, in legal terms, every painting has a period during which you can complain that the artist ruined it. After that, the frame closes.
7. Practical steps for an injured patient
From a practical viewpoint, someone who suspects medical malpractice in Turkey should usually:
- Obtain medical records
- Request your full file from the hospital’s patient rights or records unit; use national e-health systems where available. You are entitled to copies.
- Note dates carefully
- Operation date, discharge date, when you first realised the damage – all are crucial for limitation.
- Seek an initial legal and medical assessment
- A lawyer familiar with health law can review the file and, if needed, obtain a preliminary expert opinion before filing suit.
- Choose the correct forum
- Private or public provider? Consumer/civil court or administrative court?
- In some cases, criminal complaint may also be strategically important.
- Be realistic about risk and result
- Not every bad outcome is compensable. The key is whether the doctor fell below the accepted standard, not whether medicine managed to erase every trace of illness.
8. Painting, risk and responsibility
In the end, medical malpractice under Turkish law is all about distinguishing:
- the crack in the paint that time would have caused anyway,
from - the careless stroke that should never have touched the canvas.
The law does not demand perfection from doctors. It asks for reasonable skill, diligence, respect for patient autonomy, and honest documentation. When those elements are present and the result is still tragic, the law tends to see a dark but legitimate painting.
When they are missing – when there is no proper consent, no records, clear deviation from standard practice – the same law is prepared to say:
“This is not art. This is damage. And someone must repair it, as far as money and justice allow.”
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