This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Tıbbi Hata (Malpraktis): Hangi Yollar Var?.
Medical negligence and a recognised complication are different things: a complication is a foreseeable outcome that can occur even where the rules of medicine were followed, while negligence is a breach of the duty of care. Expert evidence decides which it is. And which court hears the case depends on whether the doctor works in the public or the private sector.
A treatment did not produce the expected result, or the patient's condition worsened. That does not always mean there was a mistake — but sometimes it does, and telling the difference requires expertise.
This article explains the distinction between a complication and negligence, why the public/private distinction is critical, and the routes available.
Complication or Negligence?
This distinction is the heart of every such case.
A complication is an unwanted outcome that can occur, within the normal risks and variations medicine accepts, despite due care being taken. A doctor who acted in accordance with the requirements of medical science is not liable for a complication.
Medical negligence is a departure from standard medical practice through lack of knowledge, lack of experience or lack of attention.
Three questions decide it: was the method used consistent with accepted medical standards? Was the outcome a foreseeable risk? And when the risk materialised, was there a timely and correct response?
The third is often overlooked: even where a complication did occur, delay in managing it is a separate fault.
Informed Consent
A significant proportion of these claims arises not from the treatment itself but from a failure of consent.
Under the Patient Rights Regulation and related legislation, a patient must be informed in terms they can understand about their condition, the nature of the procedure, its risks, the alternatives, and what may follow if it is not carried out.
A common problem in practice is the standard pre-operative form of general content. In settled practice such forms do not by themselves prove that the duty to inform was discharged.
The burden of proving that information was given lies on the doctor and the institution. A procedure carried out without consent may be unlawful even if it was medically faultless.
Where Is the Claim Brought?
This distinction determines which court and which defendant.
For harm occurring in a public hospital, Article 129/5 of the Constitution and related legislation mean the claim is brought against the administration, not the doctor. The route is a full remedy action in the administrative courts.
An application must first be made to the administration. If it is refused, or no answer is given within sixty days, the period for bringing the action begins.
The time for applying to the administration is one year from learning of the harm, and in any event five years from the act (Article 13 of the Administrative Procedure Act).
In a private hospital the relationship is contractual. The claim is brought against the hospital and/or the doctor in the civil court of first instance — or the consumer court where the patient is a consumer.
In contractual liability the limitation period is as a rule ten years. Where the conduct also constitutes an offence, the longer criminal limitation period may apply.
| Public hospital | Private hospital or clinic | |
|---|---|---|
| Defendant | The administration (not the doctor personally) | The hospital and/or the doctor |
| Court | Administrative court (full remedy action) | Civil court of first instance, or consumer court |
| Prior step | Application to the administration is compulsory | Mediation where the claim is a commercial or consumer one |
| Time limits | 1 year from knowledge, 5 years from the act | As a rule 10 years (contractual) |
| Basis of liability | Service fault of the administration | Breach of contract and the duty of care |
| Criminal route | Available in both: negligent injury or negligent homicide | |
Bringing the claim in the wrong branch of jurisdiction means dismissal and lost time, so the public/private question must be settled first.
Evidence and the Expert Stage
These cases are decided by expert evidence. What to obtain and preserve:
- The complete medical file. You have a right to it: request the notes, test results, imaging, operation notes and the consent form from the institution in writing.
- The consent form, and whether it was specific to your procedure or a general printed form.
- The treatment timeline: when symptoms were reported, when they were responded to, and how long any delay lasted.
- A second opinion and any subsequent treatment records, which show the extent of the harm.
- A party-instructed expert opinion, which can make an objection to the court expert's report concrete.
Reports are usually obtained from the Council of Forensic Medicine or from university boards. Where the report is inadequate, objecting within the period and on technical grounds is essential; a report left unchallenged becomes the basis of the judgment.
What Can Be Claimed?
- treatment and further treatment costs
- loss of earnings during incapacity
- compensation for permanent loss of earning capacity, calculated actuarially on the degree of disability
- the cost of a carer
- non-pecuniary damages for the patient and, in the case of death, for the relatives
- damages for loss of support where the patient has died
Every one of these cases is decided on the file: the notes, the imaging, the operation record and the consent form. Request them from the institution in writing and keep proof of the request — and remember that in a public hospital the claim goes against the administration, with an application to it required first, within one year of learning of the harm.
Frequently Asked Questions
What is the difference between a complication and negligence?
A complication is a foreseeable outcome that can occur despite due care; negligence is a departure from standard practice through lack of knowledge, experience or attention. Expert evidence decides which occurred.
Do I sue the doctor or the hospital?
In a public hospital, the administration — not the doctor personally — by a full remedy action in the administrative courts. In a private hospital, the hospital and/or the doctor in the civil or consumer court.
How long do I have?
For a public hospital, one year from learning of the harm and five years from the act, with an application to the administration required first. For a private hospital, as a rule ten years.
Does the consent form I signed defeat my claim?
Not by itself. A general printed form does not prove that the duty to inform was discharged, and the burden of proving it lies on the doctor and the institution.
What can I claim?
Treatment costs, loss of earnings, compensation for permanent loss of earning capacity, the cost of a carer, non-pecuniary damages, and damages for loss of support where the patient has died.