This is the English version of an article originally published in Turkish: Malpraktis Davası: Doktor Hatası Nedeniyle Tazminat.
A medical malpractice claim (malpraktis davası) is the main legal remedy for a patient harmed by a doctor’s error in Turkey. Medical treatment directly affects a person’s health, and mistakes in diagnosis, treatment or surgery can cause permanent disability or death. In such cases the patient, or the patient’s relatives, may claim compensation for both pecuniary and non-pecuniary loss. This article explains what counts as malpractice under Turkish law, the conditions for a claim, who the defendant is, which court hears the case and the limitation periods that apply.
What is medical malpractice?
Malpractice means “bad practice”. In medicine it refers to conduct by a physician that falls short of the duty of care owed to the patient. Put simply, if the doctor does not follow accepted medical standards and the patient suffers harm as a result, there is malpractice, and a malpractice claim seeks compensation for that harm.
Liability is not limited to doctors. Errors by nurses, midwives and other health personnel are also covered. Shortcomings in the organisation of a hospital can give rise to liability as well, for example inadequate hygiene or faulty equipment. For this reason a claim may be brought against the hospital as well as the physician.
Error or complication?
Not every poor medical outcome is the result of an error, so the distinction between an error and a complication matters. A complication is a foreseeable and accepted risk of a medical procedure. If the doctor exercised the required care, he or she is not liable for a complication. However, mistakes in managing a complication can still lead to liability. The following are typically treated as medical errors:
- Misdiagnosis: the physician fails to diagnose the condition at all, or diagnoses it wrongly.
- Wrong treatment: the wrong medicine or the wrong dose is given.
- Surgical errors: operating on the wrong organ, or leaving a foreign object in the body.
- Failure to inform: the patient is not told about the risks and informed consent is not obtained.
- Neglect: the patient is not treated in time or follow-up is not carried out properly.
These are the most common types of error seen in practice, but each case is assessed on its own facts.
Conditions for a malpractice claim
Several conditions must be met together:
- an intervention contrary to medical standards;
- harm suffered by the patient as a result;
- a causal link between the error and the harm; and
- fault on the part of the physician or the healthcare institution.
The burden of proof generally lies with the claimant patient, so keeping all medical records is essential. The patient file, operation notes, discharge summaries (epikriz) and imaging records are all evidence. Courts rely on expert examination to establish fault, and reports are prepared by the Council of Forensic Medicine (Adli Tıp Kurumu) and university expert panels.
Legal basis of liability
The relationship between patient and physician is, as a rule, a contract of mandate (vekâlet sözleşmesi). Where the doctor undertakes to achieve a specific result, as in cosmetic surgery, the rules on contracts for work (eser sözleşmesi) apply. Where there is no contract, liability in tort applies, based on Article 49 of the Turkish Code of Obligations (No. 6098), which reads:
“A person who causes damage to another by a culpable and unlawful act is obliged to compensate that damage. Even where there is no legal rule prohibiting the harmful act, a person who intentionally causes damage to another by an act contrary to morality is also obliged to compensate that damage.”
Article 17 of the Constitution also protects a person’s physical and mental integrity, and the Regulation on Patient Rights governs the patient’s rights to information and consent. Law No. 7406, which entered into force in 2022, brought important changes: it set up a Professional Liability Board (Mesleki Sorumluluk Kurulu) for physicians working in the public sector, and criminal investigations against public sector doctors now require that board’s permission.
Who is the defendant?
This depends on where the treatment took place.
- Private hospital: the claim is brought against the hospital and the physician. Because physicians must carry compulsory professional liability insurance, the insurer may also be sued.
- State hospital: under Article 129 of the Constitution the claim is brought directly against the administration, not the doctor. The defendant is the Ministry of Health.
- University hospital: the relevant university rectorate is the defendant.
Which court has jurisdiction?
For claims against a private hospital or a doctor in private practice, the consumer court (tüketici mahkemesi) has jurisdiction, because the relationship between patient and physician is treated as a consumer transaction. Third parties with no contractual relationship bring their claim before the civil court of first instance (asliye hukuk mahkemesi). Claims against the insurer are heard by the commercial court of first instance (asliye ticaret mahkemesi).
Claims against public hospitals are heard by the administrative courts as a full remedy action (tam yargı davası). Before filing, a written application to the relevant administration is mandatory. If the administration rejects the application or does not reply within thirty days, the claimant may go to court. In private law disputes, the rules on mandatory pre-action mediation must also be checked, since where mediation is a precondition the claim cannot be filed without first applying to a mediator.
What compensation can be claimed?
The injured patient may claim both pecuniary and non-pecuniary damages.
- Pecuniary damages cover treatment costs, loss of earnings and care expenses. In cases of permanent disability, loss of working capacity is also calculated. If the patient dies, relatives may claim loss of support (destekten yoksun kalma tazminatı) and funeral costs.
- Non-pecuniary damages (manevi tazminat) compensate pain and suffering. The judge sets the amount taking into account the economic position of the parties and the seriousness of the harm. In cases of death or serious bodily harm, the patient’s relatives may also claim non-pecuniary damages.
The amount awarded depends on the circumstances of each case.
Limitation periods
The limitation period depends on the legal basis of the claim:
- Contract of mandate: five years.
- Contract for work (for example cosmetic procedures): five years.
- Tort: two years from the date the claimant learned of the damage and the person liable, and in any event ten years from the date of the act.
- Criminal conduct: if the act also constitutes a crime, the longer criminal limitation period applies.
- Claims against the administration: the application to the administration must be made within one year of learning of the damage, and in any event within five years.
Missing the relevant period means losing the right to claim, so the dates should be checked at the outset.
How the process works
The process starts with gathering evidence. The patient should first request all medical records from the hospital. In private law claims, any mandatory mediation stage is then completed. If no settlement is reached, the statement of claim is filed with the competent court. The court collects the evidence and orders an expert examination. The expert report plays a decisive role in establishing fault, and the court then awards compensation or dismisses the claim.
The criminal side should be considered separately. A doctor’s error may constitute negligent injury or negligent homicide, and a criminal complaint may be filed with the public prosecutor. Evidence in the criminal file can support the compensation claim, but the criminal case and the compensation case proceed independently of each other.
Malpractice cases are technical and require both medical and legal knowledge. Challenging expert reports, choosing the correct court and monitoring limitation periods all need careful attention, and a single procedural mistake can lead to a well-founded claim being lost.
Frequently asked questions
How long does a malpractice case take? It depends on the court’s workload, the expert examination and any objections. In practice these cases usually conclude within one to three years.
Can a claim be brought for every complication? No. A complication is an accepted inherent risk of treatment, and a doctor who took the required care is not liable for it. Errors in managing a complication, however, can lead to liability.
Who is sued for an error at a state hospital? The administration, not the doctor. The defendant is the Ministry of Health, or the rectorate in the case of a university hospital.
Can relatives of a deceased patient claim compensation? Yes. They may claim loss of support, funeral costs and non-pecuniary damages.
More information for foreign clients: English-speaking lawyer in Ankara.
This article provides general information on Turkish law and is not legal advice. Outcomes depend on the facts of each case.
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