Private hospitals and other healthcare institutions are the preferred choice for many people seeking treatment and high-quality healthcare services. Although high-quality services are expected at private hospitals and healthcare institutions, problems and errors in treatment sometimes occur, leading individuals to take legal action. In this context, we list the types and forms of liability arising from medical errors or faulty services.
Private hospitals are defined as follows in the Private Hospitals Law numbered 2219;
“Health centers established or to be established for the purpose of treating patients admitted to hospitals other than official state hospitals and private administration and municipal hospitals, or for providing medical care to those who have recently fallen ill until they regain their strength, and for providing maternity care, are considered “private hospitals.” The conditions for their establishment, operation, and closure are subject to the provisions of this law”.
This law regulates the rules by which private hospitals are regulated. According to the provisions of the law, private hospitals are institutions that are outside the scope of public administration, provide services to the public, are subject to the approval of the Ministry of Health, and are supervised by the Ministry of Health. In addition, with the amendment made to the Regulation on Private Hospitals of Universities, hospitals belonging to foundation universities have also been included in the scope of private hospitals.
LEGAL LIABILITY TYPES
In terms of liability, three different legal relationships may arise between the patient and the private hospital operator: “contract,” “agency without authorization” and “ wrongful act.”.
I- LIABILITY ARISING FROM THE CONTRACT
1- Legal Liability Arising from the Hospital Admission Contract
Contracts made between private hospitals and patients or their legal representatives concerning the diagnosis, treatment, and care of patients are referred to as hospital admission contracts. While the main purpose of a hospital admission contract is the treatment of the patient, other care services such as accommodation, food, cleaning, and security are also covered by the contract.
Hospital admission agreements may be in writing, or they may be established through the implied expressions of intent of the parties. Hospital admission agreements are divided into two categories: full hospital admission agreements and split hospital admission agreements. Full hospital admission agreements have their own subcategories. In addition to these, diagnosis and treatment agreements are also explained below.
a) Full Hospital Admission Contract
a.1) Full Hospital Admission Contract without Physician Contract
A full hospital admission contract is established between the hospital management and the patient/legal representative, and the hospital is responsible for all care and treatment services. In full hospital admission contracts, the patient directly chooses the hospital, and the hospital delegates the treatment procedures to one of the physicians it employs under a service contract.
In full hospital admission agreements without physician contracts, the hospital management is liable to the patient and their relatives for hospital care services, medical interventions by physicians employed as agents, and damages caused by other personnel, in accordance with Article 116 of the Turkish Code of Obligations. Even if the physician is not employed by the hospital, if the hospital calls in an external physician to participate in a specific part of the treatment while the patient’s treatment is ongoing, the hospital management will also be liable for the interventions of the consulting physician in accordance with Article 116 of the Turkish Code of Obligations.
Since there is no contractual relationship between the physician and the patient and/or their legal representative in the hospital admission agreement, the physician has no right to demand payment from the patient. The right to request payment belongs to the hospital, which will pay a certain portion of the collected fee to the physician. However, the Supreme Court has stated that even if there is no contractual relationship between the physician and the patient, the physician is still liable to the patient under the agency agreement.
a.2) Full Hospital Admission Contract Attached with Physician Contract
In a full hospital admission contract with a physician contract attached, there is both a hospital admission contract between the patient and the hospital and a treatment contract between the patient and the physician who will carry out the treatment. This situation will generally arise when a hospitalized patient requests that their surgery be performed by a physician other than the hospital physicians or by a physician who works at the hospital but has been specifically chosen by the patient. In such cases, there is no contractual relationship between the hospital operator and the physician; rather, there is a separate physician participating in the hospital’s treatment and care services at the patient’s specific request.
In this situation, the patient may hold both the hospital and the physician liable under the contractual relationship. While the private hospital is responsible for care and treatment services, the physician with whom the patient has a separate contract is also responsible for treatment services. The physician and the private hospital share joint and several liability toward the patient for treatment services. .
2) Split Hospital Admission Agreement
There are two separate contracts in the split hospital admission contract to which the patient is a party. The patient enters into two independent contracts, one with the hospital for accommodation, food, cleaning, security, and other care services, and the other with the physician for treatment services.
In split hospital admission agreements, the patient or their legal representative has separated the obligations and areas of responsibility of the physician and the hospital. Therefore, in split hospital admission agreements, the hospital is only responsible for care services, while the physician is only responsible for treatment services.
Therefore, the hospital bears no responsibility for the treatment, and the physician is not an agent of the hospital but an independent debtor. However, if the personnel assisting the physician are hospital personnel, the hospital may be held liable under Article 116 of the Turkish Code of Obligations. Similarly, the hospital is liable under Article 116 of the Turkish Code of Obligations for any negligence on the part of the personnel used in the provision of care services. If the physician performs the treatment services and medical intervention with his own team, the physician who performs the treatment will be liable under Article 116 of the TCO for the actions of his agents.
3) Diagnosis and Treatment Contracts
Contracts between private healthcare institutions and organizations that provide outpatient diagnosis and treatment and patients/legal representatives are referred to as diagnosis and treatment contracts. Unlike hospital admission contracts, these contracts do not include hospital care services as they do not involve inpatient treatment. The healthcare institution’s sole obligation is to diagnose and treat the patient.
The Legal Qualification of Hospital Admission Contracts
The Court of Cassation considers the legal relationship between a private hospital and a patient to be a contract of agency. However, since hospital admission contracts do not solely pertain to medical treatment, they are generally considered to be mixed contracts. While the provisions of an agency contract are generally applied, the provisions of other contract types, such as lease or service contracts, may also be applied to the extent they are appropriate for other services. Additionally, medical interventions such as prosthetics, aesthetic surgeries, and tumor removals are evaluated under the scope of a work contract.
Obligations of private hospitals in the hospital admission contract consist of;
- Providing medical diagnosis and treatment for patients,
- Providing hospital care,
- Informing patients,
- Obtaining patient’s consent,
- Duty of loyalty and care,
- Duty to keep records,
- Duty of confidentiality.
Deficiencies in terms of the necessary measures to be taken for authorization, representation, duty, and protection against the patient harming themselves are considered organizational failures. Violations of obligations related to patient protection are classified as practice errors. In cases where a private hospital obtains certain medical services from another institution through service procurement, it is obligated to ensure compliance with the standards applicable to such services. The hospital operator is also responsible for these services. It cannot be exempted from organizational responsibility on the grounds that the institution or personnel providing the service is responsible.
In order to determine the responsibility of the private hospital within the scope of hospital care, it is useful to examine the most detailed decision of the Court of Cassation General Assembly of Civil Law, numbered 2009/13-393 E., 2009/452 K., dated October 21, 2009. In the relevant decision, the General Assembly assessed the private hospital’s failure to take the necessary measures to protect the patient’s safety – specifically, leaving a mentally ill patient prone to suicide alone in a room without staff supervision and the presence of a television cable in the room – as a fault on the part of the hospital. It also noted that there was a suitable causal link between this negligent behavior and the patient’s death.
Informing patients and obtaining their consent are the obligations that most frequently give rise to disputes in practice. This is because, in order to obtain legally valid consent, patients must be informed of the advantages and disadvantages of the proposed medical intervention, its likelihood of success, the possible consequences of not undergoing the intervention, and the complications that may arise, particularly death. Indeed, the Supreme Court has defined legally valid consent as consent that is sufficiently informed, given freely and consciously, without coercion. Informed consent consists of three stages: diagnosis disclosure, process disclosure, and risk disclosure.
Informing the patient should be done in simple language that they can understand, without using medical terms as much as possible, and without leaving room for hesitation or doubt. If the medical intervention is not urgent, the patient should be given sufficient time to weigh up the options, taking into account factors such as their educational background and age. If necessary, an interpreter should be used.
The Patient Rights Ordinance is a piece of legislation that we also use to determine the obligations and responsibilities of private hospitals. Under the ordinance, informing the patient verbally is considered sufficient. However, since the burden of proof lies with the hospital, in practice, the patient is informed in writing. In accordance with Article 26 of the Patient Rights Ordinance, the hospital must also prepare a consent form.
Legal Qualification of Diagnosis and Treatment Contracts
The diagnosis and treatment agreement between private hospitals and healthcare institutions and patients is a proxy agreement. The main element of a proxy agreement is that the proxy undertakes to act with due care toward the client without being subject to time constraints. Private healthcare institutions and organizations are not responsible for the success of diagnosis and treatment, but rather for exercising the necessary care when performing medical interventions on the patient. If the care required by medical science has been exercised in diagnostic and treatment activities, the private healthcare institution or organization will not be liable even if the patient suffers harm.
On the other hand, medical interventions such as prosthetics, cosmetic surgery, and tumor removal are evaluated under the scope of the work contract.
Conditions of Liability Arising from the Contract
In order to discuss the contractual liability of a private hospital operator, there must be a valid contract between the private hospital and the patient, the contract must have been breached, there must be fault, damage, and a causal link between the breach of contract and the damage.
The primary obligation arising from the hospital admission contract for the private hospital operator is the treatment of the patient. In addition to the primary obligation, there are also secondary obligations such as informing the patient, showing loyalty and care, keeping records, and maintaining confidentiality. If the private hospital operator fails to fulfill any of the obligations it has assumed under the hospital admission contract, it will be obliged to compensate the patient for the damage suffered.
In terms of determining responsibility, fault is examined in two ways as intent and negligence.
In practice, intent is rarely found in acts that could cause harm to the patient. However, intent arises in cases where the physician intervenes despite the absence of an indication in order to receive payment. Negligence, on the other hand, is the failure of the physician to exercise the care that an average physician would exercise, in other words, a lack of care.
Neither the hospital nor the doctor can guarantee that the patient will recover. Such a guarantee cannot be expected from either the hospital or the doctor. However, they are obliged to show the utmost attention, care, and effort for the patient’s recovery. As explained in detail above, the fact that the medical treatment contract is an example of a proxy agreement means that the proxy is not bound by an obligation of result but is only obliged to show the attention and care required by his profession to achieve the result. While the hospital is obligated to aim for a definite outcome and provide healthcare services appropriate to this goal under this contract, it will not be held responsible for the treatment not yielding positive results as long as it has demonstrated the necessary care and diligence.
II. Liability of Private Hospitals and Healthcare Institutions for Wrongful Acts
As a rule, any medical intervention on the human body violates bodily integrity and, consequently, personal rights. Therefore, even if there is a contractual relationship between the private healthcare institution and the patient, contractual liability will compete with non-contractual liability. For medical intervention to be considered lawful, the patient must consent to the intervention, and the intervention must be carried out with due care within medical standards for the benefit of the patient. If a private healthcare institution intervenes unlawfully due to its fault and damage occurs as a result, the healthcare institution will be liable for wrongful act. On the other hand, even if there is a contractual relationship between the patient and the private healthcare institution, in the event of the patient’s death as a result of medical intervention, the patient’s relatives may only file a lawsuit based on tort liability. For the private healthcare institution to be liable for wrongful act, the conditions of unlawful act, fault, damage, and appropriate causal link must be present.
The liability for wrongful acts of private healthcare institutions and organizations generally arises in two ways. The first is liability based on negligence arising from the organizational obligations of the private healthcare institution, and the second is strict liability arising from the actions of auxiliary persons.
The fault of private healthcare institutions appears as risks that do not fall under the concept of complications due to organizational faults. Private healthcare institutions are under a duty of care even if there is no contractual relationship between them and the patient. Violation of the duty of care also gives rise to liability for wrongful acts. For this reason, private healthcare institutions must organize their services, personnel, and equipment in such a way as to prevent harm to patients. When assessing the fault of private healthcare institutions and organizations, objective criteria should be used, and the care that a private healthcare institution should show to a patient under the same circumstances and conditions should be sought. For this reason, the existence of fault in each medical incident should be examined by taking into account the characteristics of the incident, such as the specific situation of the physician, the specific situation of the patient, and the capabilities of the healthcare institution.
In liability for wrongful acts, as a rule, the injured party must prove the existence of fault. It is very difficult for a patient who has no experience with private healthcare institutions and is in a weak position to prove fault. Considering this situation, it has been accepted that the private healthcare institution or physician’s behavior contrary to medical deontology and professional rules constitutes a presumption of fault. If the patient proves that there has been a breach of medical standards (professional fault), the private healthcare institution or physician must prove that there was no fault according to the specific circumstances and conditions of the case in order to refute the presumption against them.
III. Liability of Private Hospitals and Healthcare Institutions as Employers
Although the obligation of medical diagnosis and treatment is assumed by the hospital due to its nature and scope, it is an obligation that the hospital can only fulfill with the assistance of doctors and other personnel.
Since the private hospital fulfills these obligations through its agents, it is liable to the patient under the principle of “liability for the acts of an agent” set forth in Article 162 of the Turkish Code of Obligations, provided that there is an employment relationship between the hospital and the agent and the other conditions specified in the law are met. Additionally, the hospital is liable to the patient under the principle of “liability of the employer” in accordance with Article 66 of the Turkish Code of Obligations.
IV. Liability for Acting Without Authorization
Treatment without authorization refers to treatment administered without the patient’s consent.
For a situation of acting without authority to occur, there must be a state of necessity. In the event of a state of necessity, the patient will not be in a position to express their will regarding whether or not to receive treatment, and therefore no contractual relationship can be established between the patient and the physician.
Additionally, depending on the specific circumstances of the case, treatment without consent may be one of the factors considered in determining the hospital’s liability toward the patient. In such cases, the liability principles outlined in Article 527 of the Turkish Civil Code will be taken into account.
Can a Liability Waiver Agreement Be Made Between Private Hospitals and Healthcare Institutions and Patients?
In accordance with the provisions introduced by TCO No. 6098 regarding non-liability agreements (Articles 115/3 and 116/3), private hospitals and healthcare institutions that provide services requiring expertise and practice their profession cannot enter into non-liability agreements, provided that they are not liable for minor faults committed by themselves or their assistants.
Compensation Liability of Private Hospitals and Healthcare Institutions
The patient’s pecuniary damages, as listed in the Turkish Code of Obligations, include treatment expenses, loss of earnings, losses arising from the reduction or loss of working capacity, and losses arising from the disruption of economic future; in the event of death, funeral expenses, damages to persons deprived of support, and treatment expenses until death if death does not occur immediately.
Additionally, the patient and, in cases of severe injury or death, their close relatives are entitled to compensation for emotional distress.
Statute of Limitations
Medical treatment contracts established between patients and physicians are classified as proxy agreements, and therefore the rights of the parties arising from the contract are subject to a five-year statute of limitations.
However, the situation is different for hospital admission contracts, which are a type of mixed contract. Mixed contracts are contracts that contain provisions belonging to more than one type of contract, and where appropriate, other contracts may be applied by analogy, taking into account the balance of interests between the parties.
Since the weaker party in the hospital admission contract is the patient, a ten-year statute of limitations may be applied in accordance with the patient’s interests. However, if the patient’s liability is based on principles such as liability for the actions of an assistant, tort liability, or unauthorized conduct, there is no doubt that the applicable statute of limitations periods will apply.
The statute of limitations is ten years for general breach of contract, five years for claims based on a contract for work, and five years for a proxy agreement. In the case of unauthorized work, the general statute of limitations of ten years applies.
In cases of tort, the statute of limitations is two years from the date the injured party becomes aware of the damage and the liable party, and in any case, ten years from the date the act was committed.
However, it should be noted that if the claim for compensation arises from an act that constitutes a criminal offense subject to a longer statute of limitations under criminal law, the criminal statute of limitations will apply.