Av. Enes ALİŞ, LL.M.
I. THE CONCEPT OF LOSS OF CHANCE
Luck is a concept that has been tried to be explained throughout history. It is stated that luck, on the one hand, causes individual unpredictability and chaos, and on the other hand, provides collective predictability by creating long-term statistics. In this respect, it is stated today that there is an inseparable link between the concept of chance and statistics. As can be seen, the existence of luck varies depending on the perspective. While talking about luck was considered completely unscientific and unphilosophical during the Enlightenment period, today the concept of chance is based on quantum mechanics.[1] temel kavramı olarak görülmekte ve bilim dünyasında kendine bir yer bulabilmektedir.[2]
in French law perte d’une chance, in German-Swiss-Austrian law verlorene Chance or Verlust der Chance1 or “Entgangene Chancen”2, In the Anglo-American legal environment “loss of chance” which is translated into Turkish as "loss of chance".[3] It can be seen that the concept under study cannot be clearly defined in the doctrine. For this reason, in studies where the subject is specifically addressed, event groups or case studies in which compensation for loss of chance is applied are specified instead of the definition of loss of chance.[4] Generally, the following three examples are given: The first is that the lawyer misses the appeal period, the second is that the horse cannot participate in the race because the transporter company cannot get the horse to the race on time, and the third is that the patient dies as a result of the physician related to our subject of study not being able to correctly diagnose the disease of the patient who applied to him.
As can be seen, the common point in all of these examples is that the question of what would have happened if the defendant's faulty behavior could not be answered with any certainty. However, if it were not for the defendant's behavior - even if it cannot be stated with certainty - the case and the race would not have been won, and death or permanent disability would have been prevented. ihtimali There are. Regardless of the question of whether or not they will be compensated, the loss of these possibilities is considered a loss of chance.[5] So in the loss of chance; Due to the behavior of the harmer, the injured party is deprived of the possibility of obtaining a certain benefit or preventing the harm, so it remains hypothetical whether the final gain or final loss will occur.[6]
The concept of chance is used in the sense of both statistical probability and coincidence. As a matter of fact, there is uncertainty in events described as loss of chance, and this uncertainty can only be explained by probability and therefore can be understood in terms of chance and risk. [7]
Law and chance are inherently incompatible. As a matter of fact, while certainty and predictability are among the basic principles of law, chance emerges as the source of uncertainty. However, since coincidence is a part of human life and the law regulates human life, the law must definitely confront the phenomenon of chance. However, it was thought that this problem could be eliminated by excluding coincidence from the scope of law. Later, when it was necessary to allocate a certain area to chance in law, chance or luck was taken under control by the theory of probability, as in other fields. As a matter of fact, probability theory provides the opportunity to both detect events and make predictions about uncertain trends in the past or future.[8]
In legal systems around the world, there are countries that reject the doctrine of loss of chance and others that accept it as is. In addition, there are also legal systems that accept some groups of events but do not accept them in terms of other groups of events, and have adopted a more middle way. In addition to legal systems, the doctrine of loss of chance has also been the subject of international texts. As a matter of fact, it is clearly accepted in the UNIDROIT Principles.[9] 7.4.3 of the UNIDROIT Principles, titled certainty of damage. The first paragraph of the article; While it regulates that the damage that can be determined with reasonable certainty will be compensated, in the second paragraph it is stated that the loss of chance will be compensated in proportion to the probability of occurrence. In the explanation of the article, it is stated that the condition of certainty of damage is also adopted by the Principles, since it is not possible to compensate for the damage that has not occurred or will not occur. In this context, with the first paragraph, it is possible to compensate for future losses that have not yet occurred, but are expected to occur with sufficient certainty. In addition, it is accepted in the second paragraph that future damage also includes loss of chance. [10]
II. THE CONCEPT OF LOSS OF RECOVERY AND LOSS OF SURVIVAL CHANCE
It was in France that the chance of recovery was considered an independent harm for the first time. Courts in this country recognized the loss of recovery in the 60s[11]. Loss of chance of recovery and chance of survival, which is one of the classic examples of compensation for loss of chance, is when the physician causes permanent disability or death of the patient as a result of his own faulty behavior, such as not correctly diagnosing the disease of the patient who applied to him, applying the wrong treatment, neglecting to perform the necessary interventions. The issue subject to compensation is not the direct damage caused by the doctor's faulty behavior. It is the irreversible loss of the patient's chance of recovery or chance of survival if the physician had not acted negligently.
III. DOCTOR'S RESPONSIBILITY
Within the framework of the physician-patient relationship, the physician may have legal, criminal, administrative and ethical responsibilities.[12] Generally considered, it can be seen that the doctor-patient relationship and the legal liability arising from this relationship are not regulated by separate rules in legal systems. For this reason, disputes on the subject are resolved within the scope of general obligations law rules, in other words, contract law and tort law.[13]
A. TYPES OF LEGAL LIABILITY OF THE PHYSICIAN
1. Fault Liability
Since there is no special regulation based on other types of liability in the field of legal liability of the doctor, liability arising from medical activities is, as a rule, based on fault liability.[14] If there is a valid contract previously established between the doctor and the patient, the 112nd and subsequent articles of the TCO regarding the legal liability of the doctor apply, and in the absence of such a contractual relationship, the 49th and subsequent articles of the TCO regarding tort are applicable. Since the constitutive element of liability according to these articles is fault, the doctor is only responsible for the damage that occurs as a result of his medical activities if he is at fault, and cannot be held responsible if he is not at fault. [15]
2. Causal Liability
Ordinary cause liability is included in the legal liability of the physician due to Articles 66 and 58 of the Turkish Code of Obligations, which are typical examples of this type of liability. When the doctor uses assistants during his medical activities, he is held responsible for the damages caused by these assistants to patients who are not in a contractual relationship with him, according to Article 66 of the Turkish Code of Obligations.[16] In case the construction and maintenance deficiencies in medical devices and machines with certain qualifications used during these activities cause damage, liability arises in accordance with Article 69 of the Turkish Code of Obligations. [17]
Since there is no special regulation in the field of medical liability based on danger liability, this type of liability cannot find application in the legal liability of the doctor. However, the fact that a tiny mistake made by doctors during medical activities can lead to extremely important and irreparable damages for human health and life has led to the emergence of opinions suggesting that the principle of danger liability should be included in this field as well. [18]
B. REASONS FOR THE LEGAL LIABILITY OF THE PHYSICIAN
When legal systems are examined, it is seen that medical liability generally gives rise to both contractual liability and tort liability.[19] As a matter of fact, there is actually a contractual relationship between the doctor and the patient; However, while fulfilling this contract, the physician directly interferes with the patient's bodily integrity and may cause secondary damage in the process. In this context, it may be left to the patient's choice as to which type of responsibility to apply, and sometimes it may be seen that one type of responsibility comes to the fore with established practice. In addition, in the German legal environment, the relationship between the patient and the doctor is defined as acting without power of attorney and culpa in contrahendo It is also accepted that it may lead to liability.[20]
1. Contractual Liability
In order for the doctor to have contractual liability, birinci şart It is the existence of a treatment contract established between the doctor and the patient. The dominant view in Turkish law, as in Switzerland, accepts that this contract is a contract of agency.[21] Secondly, n order for the doctor's contractual liability to emerge, the doctor must violate the contract between the doctor and the patient, that is, TCO. According to Article 112, "the debt must not be fulfilled at all or not as required". Third condition is harm. Where there is no damage, there can be no obligation to compensate. The fourth condition is The doctor has deliberately or negligently violated the obligations imposed on him by the treatment contract. In other words, the doctor must cause the damage through a faulty behavior that is condemned or disapproved by the legal order. Article 112 of the Code of Obligations includes the presumption of fault for contractual liability. In other words, according to this article, the debtor who does not fulfill his debt at all or properly is considered to be at fault.[22] It is up to the debtor to prove that she is not at fault. The fifth and last condition is is the appropriate causal link. The doctor is only liable for damages that are the proper consequence of his faulty medical activity. If the doctor's faulty behavior cannot be described as the proper cause of the damage, that is, if there is no appropriate causal link between the doctor's faulty behavior and the damage caused to the patient, no compensation obligation arises for the doctor.[23] It is up to the injured party to prove the existence of a proper causal link.[24].
In cases where the outcome of the patient's treatment depends on factors beyond the physician's activities and ability, the physician cannot guarantee the outcome of the treatment.[25] The physician who is bound by an agency contract is not responsible for the achievement of the result he/she is working towards, but for the diligent execution of his/her efforts to achieve this result.[26]
However, in a situation where the physician's skills are sufficient to achieve the desired result and the outcome of the patient's treatment does not depend on factors other than the physician's activities, it is difficult to evaluate the relationship between the physician and the patient within the framework of an agency contract. If it can be understood without any doubt that a certain result has been agreed to be achieved, it would be appropriate to accept the contract between the parties as a contract of work.[27]
The obligation under a work contract is not in the nature of a performance of work, which is the subject matter of an agency contract. Unlike an agency contract, a work contract aims to obtain a material or non-material, but objectively determinable result at the end of the work. If the treatment contract is in the nature of a contract of work, it imposes an obligation on the physician to produce a result that is objectively observable, rather than the work itself.[28] Especially plastic surgeries[29] treatment in which the dentist undertakes the filling of a tooth or the making of a prosthesis[30], TBK's 470 ff. It constitutes the subject of the work contract in accordance with the articles.[31] Accordingly, in cases that constitute a contract of work, the fact that the physician fails to achieve the intended result causes the physician to be deemed to have failed to perform the obligation properly, and the physician's performance obligation turns into a contractual indemnity obligation.[32]
Apart from that, judicial bodies may also consider that a professional error[33] In cases where it is clearly in question, they decide that the duty of care arising from the power of attorney contract has been breached. In particular, in cases where the physician was mistaken about a matter that he should have known while practicing his profession or neglected to take the measures required by science to prevent the damaging event, they decide that he is liable for the damage incurred without the need for further investigation.[34] For example, in the event that the environment in which the treatment is carried out and the materials used during the treatment are not kept sterile, the judicial bodies accept that the physician will be directly responsible for the damage caused; thus, aggravating his/her responsibility.[35]
Unless otherwise agreed by the parties, the degree of care to be exercised by the physician shall be determined according to objective criteria.[36] In other words, the criterion for accepting the existence of negligence and imprudence in the intervention consists of the usual care that an intermediate level person, that is, a cautious physician, would show under the same conditions, regardless of the subjective qualities of the person causing the damage.[37] However, the physician's working conditions are also taken into account when determining the degree of care that should be shown.[38] For example, in a big city, the degree of care expected from an experienced physician who has almost all kinds of diagnosis and treatment opportunities at his disposal is appreciated more than the degree of care expected from a physician who has just started his career in a small settlement.[39]
Finally, since the power of attorney contract is a contract based on the mutual trust of the parties, a non-liability clause to be included in the power of attorney contract, which requires the doctor and his assistants to work diligently, would be contrary to the content of this contract.[40] In the treatment contract, which is a type of power of attorney contract, a condition that eliminates the possible responsibilities of the physician and his assistants that may arise from lack of care should not be considered valid, as it will also eliminate the trust in them.
2. Liability Arising from Tort
Unless there is a previous explicit or implicit contract between the doctor and the patient, the source of liability is, as a rule,[41] constitutes a tort. Thus, liability arises either from tort in accordance with TBK.Article 49, or from the acts of auxiliary persons in accordance with TBK.Article 66, which are cases of causal liability, or from construction and maintenance deficiencies in the things owned (medical instruments and machines of a certain nature) in accordance with TBK.Article 69 [42]
In order for the doctor to have liability arising from tort, first of all, the doctor must commit a positive (executive) or negative (negligent) behavior.[43] to search ikinci The condition is to create a violation of the law with the behavior in question. As a rule, any intervention into the personal assets of third parties is unlawful.[44] and the fact that the person intervening is a doctor does not change the situation. In order for such an intervention not to be considered unlawful, there must be a justifiable reason. These justified reasons for medical interventions are; It means having the patient's consent, acting in accordance with the patient's interest, and using a lawful public power. What is necessary for medical intervention to constitute a tort? üçüncü şart zarardır. Yukarıda da değinildiği gibi zararın olmadığı yerde tazminattan bahsedilemez. Doktorun hukuka aykırı fiilinden doğan zararı tazminle yükümlü olması için gereken dördüncü şart kusurlu hareket etmiş olmasıdır (TBK.m.49). Yalnız bu şart kusura dayanmayan bir sorumluluk türü olan TBK. m.66 gereğince istihdam eden sıfatıyla sorumluluğunda ve m.69 gereğince eser maliki sıfatıyla sorumluluğunda aranmaz.[45] Son olarak ise doktor sözleşmesel sorumlulukta olduğu gibi, haksız fiil sorumluluğunda da, hukuka aykırı davranışının ancak “genel hayat tecrübelerine, olayların normal akışına göre sebep olabileceği zararlı sonuçlarından” sorumludur.[46] Doktor davranışıyla uygun illiyet bağı içerisinde bulunmayan sonuçlardan sorumlu değildir.[47]
3. Comparison of Doctor's Contractual and Tort Liability
The act that causes harm can sometimes be both a breach of contract and a tort.[48] The situation where the doctor causes bodily harm to the patient with whom she has a contractual relationship through a treatment that is not fit for purpose.(dişil) The situation where the doctor causes bodily harm to the patient with whom he has a contractual relationship through a treatment that is not fit for purpose.(eril)[49] can be given as an example of this situation. In this case, the doctor will act contrary to the contract stipulating the treatment and the doctor's contractual liability will arise. In addition, the same situation constitutes a tort when the contract between the doctor and the patient is not taken into account, as the order "do not harm anyone", which the legal order directs to everyone and must be obeyed by them, is violated. In this case, since there is a competition of rights, the question arises as to which liability the injured party will base on.
According to the dominant view in the doctrine and adopted by the Supreme Court of Appeals, the injured party is based on contractual or non-contractual liability.[50] However, if the reasons for liability of the injured person exist together, it is generally more useful to rely on the rules regulating the liability arising from non-contractual behavior.[51] That is, in tort liability, the injured party must prove the fault of the injured party, along with other liability conditions, in order to sentence the injured party to compensation. On the other hand, the burden of proof in TBK article 112, which regulates contractual liability, has been reversed. Since the presumption of fault is included in this article, it is assumed that the debtor is at fault; It is up to the debtor to prove that he is not at fault. Since it is very difficult to prove the doctor's fault in liability arising from medical activities, this difference in the burden of proof regulation in these two liability cases is important in terms of whether liability can be established or not.[52]
In addition, the limitation period for contractual liability is, as a rule, ten years (TBK art. 146). On the other hand, the limitation period for tort liability is two years from the date on which the injured party learns about the damage and the tort perpetrator (TCO Art. 72).[53]
[1] NewtonIt has been revealed that 's mechanical determinism is insufficient for small systems in the universe, such as atoms and subatomic particles. Quantum mechanics, which emphasizes probabilities, is used to explain these systems. Einstein, Bohr, Max-Planck, Heisenberg, Schrödinger It was revealed with the contributions of scientists such as. RUELLE, D (çev. YURTÖREN, D.).: Chance and Chaos, Ankara 1994, p. 90; Heisenberg’The basis of the uncertainty principle is that the future position and speed of an electron changing orbit cannot be determined simultaneously. While one is detected, the other remains unclear. As a matter of fact, light is sent to determine the position of the electron, but this measurement changes the location of the electron as a result of the light hitting the electron. However, the possible behavior of a certain proportion of a large number of particles in a certain period of time can be determined with the help of probability theory. Therefore, today the laws of causality are seen as laws of probability. For detailed information, see KUTLUSOY, Zekiye, Comparative Probability, A Qualitative / Dimensional / Intuitive Probability Theory, Philosophy World, 2002, pp.26-27.
[2] ÖZKAN, Zehra, Compensation for the Loss of the Chance of Recovery in Comparative Law, Doctoral Qualification Thesis, Ankara University Institute of Social Sciences, Ankara, 2003, p.8.
[3] ABİK, Yıldız, Loss of Chance under the Responsibility of the Doctor: Loss of the Chance of Recovery, AÜHFD 2005p.242; Besides that BüyüksağişIn his work Material Damage, he expressed the loss of chance as "deprivation of opportunity". See BÜYÜKSAĞİŞ, Erdem, Material Damage with Its New Socio-Economic Dimension, Istanbul 2007, p. 338 (Material Damage). In another work where he only deals with the loss of the chance of recovery, the author translates the loss of the chance of recovery as "loss of the chance of living". See BÜYÜKSAĞİŞ, Erdem, The Scope of the Physician's Liability for Compensation in Terms of Losses Suffered as a Result of Loss of the Chance of Living - A Different Approach to the Appropriate Causality Theory, AÜHFD 2005, p.119 (Chance of Living).
[4] ÖZKAN, p.4; However, Abik stated that there is no specific term in German law, as in American and French law. ABİK, s.242, dn.2.
[5] MÜLLER, C, Schadenersatz für verlorene Chancen-Ei des Kolombus oder Trojanisches Pferd, AJP/PJA 2002, p. 391-392 (Columbus oder Trojanisches Pferd); Posted by ÖZKAN, s.6.
[6] ÖZKAN, s.7.
[7] ÖZKAN, dn.39.
[8] MÜLLER, p.391; With this, JansenAccording to , compensation for loss of chance can be objected to in two respects. First of all, if the view that natural events are deterministic and chance is just a lack of knowledge (the view that explains chance from an epistemic point of view) is accepted, it is concluded that chance is an illusion. If we use the competition example, it has actually been determined whether the competition can be won or not; According to this determination, the competition will either be won or lost. However, humankind has not yet reached a level of knowledge that will reveal which outcome will occur. While the first objection is that luck is an illusion, the second objection is that there is no such thing as luck. According to this argument, there are only two possibilities. The desired result will either be achieved or not. Jansen Although he states that both arguments are acceptable at the theoretical level, he argues that this does not mean that there is no place for the concept of luck, especially in tort law. The justification for this is that law is concerned with the world perceived by human beings rather than reflecting the reality of the world in a philosophical sense. JANSEN, N. , The Idea of Lost Chance, Oxford Journal of Legal Studies 1999,s.280; Aktaran, ÖZKAN, s.14-15,dn.45.
[9] It was deemed appropriate to become a party to the United Nations Convention on the International Sale of Goods (with the Law No. 5870 dated 2/4/2009, it was decided by the decision of the Council of Ministers dated 11/3/2010, the text of the contract was published in O.G. No. 27545 dated 07/04/2010). Since it does not contain a provision regarding future damages, it is accepted that there is a gap in this regard. It has been suggested that this gap can be filled with UNIDROIT Principles. EİSELEN, S. , Remarks on the Manner in which the UNIDROIT Principles of International Commercial Contracts May Be Used to Interpret or Supplement Article 74 of the CISG, 2004, p.m., http://www.cisg.law.pace.edu/cisg/principles/uni74.html. E.T: 22.12.2018; Aktaran ÖZKAN, dn.51.
[10] ÖZKAN, s. 18.
[11] KASCHE, Maria, Verlust von Heilungschancen : eine rectsvergleichende Untersuchung, Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Wien : Lang 1999, s. 1; Aktaran, ABİK, s.246.
[12] DEMİR, Mehmet, Hekimin Sözleşmeden Doğan Sorumluluğu, AÜHFD, 2008, s.227.
[13] ÖZKAN, s.87; AYAN, Mehmet, Tıbbî Müdahalelerden Doğan Hukukî Sorumluluk, Kazancı Kitap, Ankara 1991, s.49; ŞENOCAK, Zarife, Özel Hukukta Hekimin Sorumluluğu, AÜHF, Yüksek Lisans Yeterlik Tezi, Ankara 1991, s.30; YAVUZ İPEKYÜZ, Filiz, Türk Hukukunda Hekimlik Sözleşmesi, Vedat Kitapçılık, İstanbul 2006, s.127- 129.
[14] ŞENOCAK, s. 6. Bu konuda ayrıca bkz. REİSOĞLU, Seza, Hekimlerin Hukuki Sorumluluğu, Türk Hukukunda Hekimin Hukuki ve Cezai Sorumluluğu, Sorumluluk Hukukundaki Gelişmeler V. Sempozyumu, Ankara 12/13 Mart 1982, İstanbul 1983, s. 3; AŞÇIOĞLU, Çetin, Tıbbî Yardım ve El Atmalardan Doğan Sorumluluklar, Doktorların Devletin ve Özel Hastanelerin Sorumluluğu (Cezai ve Hukukî), Ankara 1993, s. 72.
[15] ŞENOCAK, s. 6; ABİK, s. 265.
[16] ŞENOCAK, s. 7. Bu konuda ayrıca bkz. AŞÇIOĞLU, s. 105; REİSOĞLU, s. 15.
[17] ŞENOCAK, s. 7; ABİK, s. 265-266.
[18] ŞENOCAK, s. 8.
[19] AYAN, s. 49; ŞENOCAK, 1991, s. 30; YAVUZ İPEKYÜZ, s.127-129.
[20] In cases of emergency, if the physician intervenes without the patient's consent, this relationship is described as acting without power of attorney, as a contractual relationship cannot be established between the physician and the patient. For detailed information, see AYAN, s.165-166; YAVUZ İPEKYÜZ, pp.127-128. The liability of the physician in case the physician causes damage by violating the relationship of trust established between the physician and the patient before a contract is established between them and the patient. culpa in contrahendoya is based on. For detailed information, see AYAN, s.49; YAVUZ İPEKYÜZ, s.128-129.
[21] ŞENOCAK, Zarife, Physician's Responsibility in Private Law, Vedat Kitapçılık, Ankara 1998, p. 18; REİSOĞLU, s. 12; KÖPRÜLÜ, Ömer,Hekimin Hukuki Sorumluluğu, İ.B.D. , 1984, C. LVIII, S. 10-11, s. 600; AŞÇIOĞLU, s.20; AYAN,s.53; ÖZDEMİR, Hayrünnisa, Diagnosis and Treatment Convention in Private Law, Yetkin Publications, Ankara, 2004, p.81; ÖZTÜRKLER, Cemal, Medical Liability in Legal Practice, Compensation Cases Arising from Diagnosis, Treatment and Medical Intervention, Seçkin Publishing, Ankara 2003, p. 56-57.
The Supreme Court has also adopted as a principle that the doctor-patient relationship carries all the elements of the agency contract (Öztürkler, s. 57). Buna örnek olarak bkz. Y. 13. HD. E.1994/8557, K.1994/2138 – YKD, S. 8, Ağustos 1994, s. 1288.
[22] ŞENOCAK, p. 11. For detailed information about professional error or professional defect, which is of great medical and legal importance and occurs in case of violation of professional rules, see. ŞENOCAK, s. 83- 84; ÖZDEMİR, s.162-169; AYAN, s.104-109.
[23] ŞENOCAK, s. 11; TANDOĞAN, Haluk, Turkish Liability Law (Non-Contractual and Contractual Liability), Ankara 1981, p. 77; According to the view accepted in practice and doctrine, since it is very difficult to prove causality in legal liability arising from medical activities, this issue should not be treated too strictly. If it is proven that the damage is most likely the result of the act in question, this should be considered sufficient. See REİSOĞLU,s. 9.
[24] ABİK, s. 266-268.
[25] Bkz. Y. 13. HD 04.03.1994 T, E.1994/8557, K.1994/2138, YKD 1994, s. 1288 vd.
[26] Bkz. Y. 13. HD 07.02.2005 T, K.2005/12088, K.2005/1728, BÜYÜKSAĞİŞ, s.120-121, dn.4-5.
[27] Bkz. Y. 15. HD 03.11.1999 T, E.1999/4007, K.1999/3868, YKD 2000, s. 723 vd.
[28] Bkz. Y. 13. HD 05.04.1993 T, E.1993/131, K.1993/2741, YKD 1994, s. 79 vd.: “In plastic surgeries, if the doctor performing the surgery has given a certain guarantee regarding the aesthetic appearance, this contract between the parties is a work contract. In the work contract, as in the contract of power of attorney, the contractor is obliged to perform the work with loyalty and care, and the defendant doctor is obliged to prove that he has fully fulfilled the requirements of his professional knowledge.”.
[29] Bkz. Y. 15. HD 03.11.1999 T, E.1999/4007, K.1999/3868, YKD 2000, s. 723 vd.
[30] Bkz. 15. HD 14.02.2005 T, E.2004/3331, K.2005/698.
[31] BÜYÜKSAĞİŞ, s.121.
[32] Bkz. Y. 15. HD 03.11.1999 T, E.1999/4007 , K.1999/3868 , YKD 2000, s. 723 vd.; BÜYÜKSAĞİŞ, s.126-127.
[33] For the concept of “professional error”, see. ŞENOCAK, s. 83 vd.
[34] Bkz. Y. 13. HD 14.10.1974 T, E.2637, K.2492, YKD 1976 II, s. 79 vd.; Y. 13. HD 04.03.1994 T, E.8557, K.2138, YKD 1994, s. 1288 vd.
[35] In Turkish practice, ensuring that the environment where the treatment is carried out and the materials used during the treatment are kept sterile is considered an obligation for the physician to comply with the special conditions required by his profession and to apply the rules of medical science. See Y. 13. HD 05.04.1993 T, E.1993/131, K.1993/2741, YKD 1994, p. 79 ff.; BÜYÜKSAĞİŞ, s.127.
[36] Bkz. Y. 3. HD 18.12.2003 T, E.14004, K.14485, YKD 2004, s. 188 vd.
[37] See Y. 15. HD 03.11.1999 T, E.1999/4007, K.1999/3868, YKD 2000, p. 723 ff. For general explanations on the subject in the doctrine, see. YAVUZ, Cevdet, Turkish Law of Obligations, ÖH, 6th Edition, Istanbul, 2002, p. 586.
[38] Bkz. Y. 4. HD 06.05.2003 T, E.2003/307, K.2003/5910.
[39] BÜYÜKSAĞİŞ, s.127-128.
[40] In the same direction, see ŞENOCAK, s. 96; ÖZTÜRKLER, s. 165.
[41] In cases where there is no previously established contract between the doctor and the patient (extension of surgery, emergency cases, etc.), the doctor's medical intervention may constitute acting without power of attorney. In this case, liability arises not from tort, but from acting without authority.
[42] ŞENOCAK, s. 11- 12 ve dn. 34.
[43] ŞENOCAK, p. 12. In order for the doctor to be held liable according to Article 66 of the Turkish Code of Obligations, there must be positive or negative behavior of the assistants employed that causes damage. Doctor's TBK.m. The liability arising from Article 69 is not a human behavior that causes damage, but the lack of construction and maintenance of the thing owned. Even if this deficiency arises from an unexpected situation or the behavior of a third party, this does not change the situation. However, if the damage is not caused by a deficiency in the work but by the behavior of the owner or a third party, since there is no appropriate causal link between the deficiency and the damage, TBK. 69 does not apply. See TANDOĞAN, Türk Mesuliyet Hukuku, s. 174 vd.
[44] ÖZTAN, Bilge, Personal Law, 6th Edition, Turhan Kitabevi, Ankara, 1994, p. 119; REİSOĞLU, s. 4.
[45] ŞENOCAK, s.13.
[46] ŞENOCAK, s. 14. Bkz. REİSOĞLU, s. 9; TANDOĞAN, Türk Mes’uliyet Hukuku, s. 77.
[47] ŞENOCAK, s.14; ABİK, s.269-270.
[48] Bkz. TANDOĞAN, Türk Mes’uliyet Hukuku, s. 528; REİSOĞLU, s. 96.
[49] An example of this situation is when a doctor cripples his patient with a defective surgery. See. ŞENOCAK, s. 14.
[50] ŞENOCAK, s. 14. Bkz. TANDOĞAN, Turkish Liability Law, p. 537; HGK dated 13.5.1953. and for the decision numbered 29-39, see. Olgaç, S.: Commentary on the Turkish Civil Code According to Legal and Scientific Jurisprudence, 2nd Edition, İsmail Akgün Printing House, Istanbul, 1969, m. 41, n. 209, p. 267; 4.6.1958 t. and see IBK numbered E.1958/15, K.1958/6. RG. 1.10.1958, N. 10021; Y. 11. HD's 20.9.1979 t. and E. 1979 / 3398, see K. 1979 / 4053 for the decision. YKD. 1980, P. 12, p. 1615 ff.
[51] ŞENOCAK, s.15; ABİK, s.270-271.
[52] ŞENOCAK, s.15
[53] ABİK, s.271-272