Medical Malpractice in Healthcare Law: A Defence and Prevention Framework for Institutions and Physicians

With the growth of health tourism in Türkiye and the global increase in cosmetic procedures, medical malpractice claims have become the single largest legal and financial exposure carried by hospitals and physicians.

Whether an operation resulted in a medical complication (a foreseeable and unavoidable side effect) or in malpractice, meaning fault on the part of the physician or the institution, turns on a fine distinction. At Ertuğ & Partners, we set out below the defensive and preventive framework for clinics under the Turkish Code of Obligations and Law No. 1219 on the Practice of Medicine, with a view to avoiding substantial damages awards and the risk of professional suspension.

1. The Liability Regime: Contract of Mandate or Contract for Work

In a malpractice claim, the court first examines the nature of the intervention, and Turkish case law applies two different standards.

Therapeutic interventions (contract of mandate): In cardiac surgery or oncological treatment, the physician gives no guarantee of outcome. Under Article 506 of the Code of Obligations, the physician owes a duty of care. The patient may not recover; the physician is liable only where the applicable standard of care has been breached: an incorrect dosage, a retained surgical item.

Aesthetic procedures (contract for work): Operations in which a visual result is undertaken, such as rhinoplasty or hair transplantation, are treated by the Turkish courts as contracts for work. Here the physician warrants the result. Even where the operation is performed competently and without physical harm, if the promised outcome does not materialise the physician and the clinic face liability. This is the category in which aesthetic clinics lose most often.

2. The Most Frequent Allegations

However careful the physician, gaps in institutional process are what generate litigation.

Misdiagnosis or delayed diagnosis: Failing to order the necessary tests, so that the stage of a cancer is missed.

Concealing a surgical complication: Damage caused during an operation, such as a severed nerve, being withheld from the patient on discharge. Two distinct legal issues arise here and should not be conflated: the injury itself, where there is fault, gives rise to negligent bodily harm under Article 89 of the Criminal Code and to civil liability; concealing it is a breach of the physician's duty to inform. Concealment does not in itself constitute the offence of bodily harm, but because it removes the chance of subsequent treatment it aggravates both the assessment of fault and the quantum of damages.

Infection: Hospital-acquired (nosocomial) infections are assessed in public hospitals before the administrative courts as a defect in service, and in private hospitals within the framework of breach of contract and organisational fault.

3. Informed Consent: The Limits of a Pre-Printed Form

The most common failure in clinical practice is relying on a pre-printed consent form, signed hurriedly on admission, stating that the patient accepts every risk.

A careful distinction is required. The Turkish courts do not treat the signature on a standard form as proof in itself that the patient was properly informed; the burden of proof lies with the physician and the institution, and the court examines whether the patient genuinely understood the risks of the specific procedure. There is, however, no absolute rule that every form lacking a handwritten annotation is invalid; the assessment is made on the facts of each case. What matters in practice is that the form was prepared for the specific intervention and that the file demonstrates the discussion actually took place.

Building the defence: The consent form should set out the risks of the procedure and the alternative treatments; the physician should explain these in person; and the fact of that discussion should be recorded. A signature alone does not win the case. The court asks whether the patient in fact understood the risk.

4. Who Pays: the Hospital or the Physician?

Where harm occurs in a private hospital, the patient generally proceeds against the hospital or its parent company under Article 66 of the Code of Obligations, which governs the liability of the employer for those it engages.

Where the physician is not on the payroll but invoices independently as a consultant, the clinic may argue that the physician is not its employee. Recent Turkish case law nonetheless tends to hold the hospital jointly and severally liable on the basis of organisational responsibility.

Public hospitals: Claims cannot be brought directly against a physician employed in the public sector. The claim is brought against the Ministry of Health, and where the Ministry is held liable it may in turn seek recourse against the physician at fault.

5. A Preventive Framework for Clinics

Hospital management should build the following into its standard processes.

1. Insurance limits: Compulsory professional liability insurance does not cover every exposure, and the limits erode against inflation: a policy limit of one million against an award of five million offers little comfort. Umbrella cover at institutional level should be considered.

2. Documentation: Every observation, including routine ones, should be entered into the hospital information system or the national e-Nabız record contemporaneously. A physician's assertion in court that a warning was given carries little weight on its own. In medicine, what is not recorded is treated as not done.

3. Complication management: A combined legal and clinical committee should manage communication with the patient after a difficult outcome, before matters escalate. Early recourse to mediation avoids substantial litigation costs.

This report is intended as general risk analysis in the field of medical law and does not replace legal advice on the management of a specific malpractice claim.

Last updated: 10 August 2026.