Av. Emir Aksoy LL.M, LL.M. IP
Medical Tourism and Plastic Surgery Malpractice in Turkey
The number of plastic surgery malpractice cases filed is rising, as increasing numbers of foreigners are coming to Turkey for medical tourism purposes. Turkey is widely considered a tourism center, as the country offers a wide selection of resorts and different types of tourism across different regions. Although regular tourism took a hit due to Covid-19, the medical tourism sector is still booming, mainly benefiting from competitive prices and good quality of service, which allowed Turkey to cement its position as one of the leading actors when it comes to medical tourism, especially plastic surgery.
There are numerous medical centers and clinics with high professional and luxury standards allowing the patients to select their doctors and clinics from a wide selection of choices (an official list of licensed centers is available through the Ministry of Health’s website). Although the sector is pretty well established and the quality of service is of a high standard, patients may still experience certain issues and unwanted results, especially in cosmetic surgeries where it may lead to a plastic surgery malpractice claim.
It should be noted here that most of the operations are successfully performed to the satisfaction of the patient, and instances resulting in an undesired outcome are rare. Nonetheless, there can be unfortunate negative outcomes due to either the negligence or lack of experience of the operating doctor, or a miscommunication between the doctor and the patient, which can result in serious negative financial, physical, and emotional consequences for the patient.
Medical Malpractice Claims
In cases where a patient suspects medical malpractice, including plastic surgery malpractice is committed by either the attending doctor or the supporting medical staff, it is important to understand and determine the rights and obligations of doctors as this will in return, help the patient to understand their rights arising out of a potential plastic surgery malpractice claim.
There are separate laws in place assigning the obligations and liabilities of medical professionals in Turkey and “malpractice” is recognized by the law as an offense. Accordingly, medical professionals in Turkey do in fact have legal and criminal liabilities in cases of negligence and malpractice committed against patients under their care.
Plastic Surgery Malpractice Claims
It should be noted here that a doctor’s liability and obligations arising out of the law will differ depending on the type of treatment and/or operation performed on the patient, which will change the type of relationship established between a doctor and the patient. For example, in case the medical operation is performed due to a medical necessity, the relationship between the doctor and the patient would constitute a proxy agreement. In this case, the doctor won’t be promising a certain result and can’t be held liable for the result.
However, if an aesthetic operation, or plastic surgery, is done solely for beauty reasons, the contractual relationship between the doctor and the patient changes, as it can no longer be classified as a proxy relationship. Unfortunately, the law does not clearly designate the type of relationship such an operation will entail.
However, according to the precedent of the Court of Appeals, if an aesthetic operation or plastic surgery is performed for the sole reason of making the patient look more beautiful and/or altering their physical appearance, the contractual relationship between the doctor and the patient will have to be designated as a contract of work (also referred to as a contract of construction, and not to be confused with the contract of employment) as set forth in Article 470 of the Turkish Law of Obligations. A contract for work is an agreement, where the contractor is obliged to realize a result and the customer is obliged to pay a fee for this work.
Due to the “promised result” in this abovementioned Article, doctors doing plastic surgery operations solely for beauty reasons can be responsible in case the promised result varies heavily from the outcome. Accordingly, in case of plastic surgery malpractice, the Patient will have the right to claim compensation for pecuniary and non-pecuniary damages, if it can be proven that there are material differences between the promised result by the doctor and the actual results achieved at the end of the operation, and/or if the patient suffers from temporary/permanent injuries because of the operation. This also extends to the death of a patient at the operating table, or during the post-op recovery process.
However, these are serious offenses, both in terms of private and criminal law, and therefore, any claim to this effect will need to be proven before a competent court. Accordingly, one of the most important aspects in a plastic surgery malpractice claim is to establish and prove a causal link between the faulty behavior breaching the contract for work and the undesired outcome.
As noted above, medical malpractice claims, especially plastic surgery malpractice cases are serious offenses, and successfully trying them in court requires expertise on the subject. It should also be noted that, as per Article 147/6 of the Turkish Code of Obligations, the statute of limitation is five years starting from the date of the related aesthetic surgery, which means that any plastic surgery malpractice claim will need to be brought before a court before this 5-year duration expires.
Since it is a sensitive matter including the health of a person, extreme care should be taken before taking any legal action, to avoid a prolonged legal process, and it is strongly recommended to consult a specialist lawyer to determine the best course of action. In case you would like to get more information on this matter, please do not hesitate to contact us through our web page.