DOCTORS’ PROFESSIONAL LIABILITY
Health law sets out norms that regulate the liability of doctors against the hospitals, clinics, colleagues, other hospital personnel and most importantly against patients in the broadest sense. Doctors’ one of the most important responsibilities to the patients is informed consent and the regulations concerning thereof.
The notion of informed consent means an authorized doctor informing the patient clearly, thoroughly and without leaving any doubt, on the risks, benefits, harms, consequences and alternatives of the medical intervention which the patient is to consent, and the patient consenting to the operations with unimpaired judgment. Informed consent is not regulated by laws concerning health law and is not clearly defined in general legal norms.
While lawyers tend to base the notion of informed consent on the fundamental rights and freedoms in the constitution, the notion of informed consent should be considered within the framework of the provisions of attorneyship contract in Law of Obligations. As per article 506/2 of the Code of Obligations, an attorney who undertakes services must consider the justified interests of the other party and carry out the works and services with loyalty and diligence. Due to the reason that a doctor enters into an attorneyship contract with the patient, as per the obligation of loyalty and diligence he has to inform the patients on all details and refrain from all behaviors that might impair the patient’s judgment.
Fault of doctor, in other words, malpractice, is the harm of patients due to the acts committed by physicians against the medical rules or the law. Malpractice has consequences such as pecuniary damage, moral compensation and criminal liability. In the calculation of financial compensation; In order to correct the wrong application, new treatment costs, life-long treatment costs in case of permanent damage, life-long maintenance costs in case of need of care, compensation of lost wages in case of loss of labor force and compensation of deprivation of support of the relatives of the patients in mortal cases are taken into consideration. If the physician has caste or negligence in the wrong treatment and there is no reason for compliance with the law, it is possible that the crimes committed against the body integrity in Criminal Law will occur. In such cases, the physician may be involved in investigations and public cases arising from the Criminal Laws as well as the private law cases we have previously explained.
As it is seen, although Health Law interacts with many basic law branches, it also includes many sub-branches which require expertise in medical, administrative or other fields outside the legal field. For this reason, judges, arbitrators and mediators cannot control the law in cases related to Health Law or other remedies; frequently consulted expert opinion.
In this sense, the lawyers who will work in the field of Health Law must be in contact with specialist physicians, health staff and even hospital managers; obtain reports or opinions from these authorities and authorities, if necessary; have the necessary expertise to compare their expert reports and opinions with those of the decision-maker.
The notion of Patient Rights in the relevant regulation; It is defined as the rights of individuals who benefit or need to benefit from health services and are protected by the Constitution, international treaties, laws and other regulations. The most basic rights of patients are the right to access services, the right to non-discrimination and the right to choose between treatment or institutions. Apart from these, the rights of patients have been explained starting from Article 6 of the Patient Rights Regulation. First, the patient’s right to be informed; This includes the information about the quality of the service, the condition of the disease, the procedure to be applied and its aftermath. This right to information includes when, how long and under what conditions the health services will be used; It may also be related to the expertise, title and job descriptions of the doctors and personnel that will provide the service.
Another patient right is the right to privacy, which is regulated in article 21 of the Regulation and the following. The Health Law protects the patient’s privacy before and after the treatment and during the execution of the treatment. This protection is valid for the period after the health service is taken and it is continued by keeping the acquired information continuously. Finally, in case of violation of patient rights, the persons concerned are given the right to apply, complaints and litigation.