In this article, we will focus on filing a lawsuit after plastic surgery in Turkey. You can read the basics about Medical Malpractice lawsuits here.
There are four legal grounds that you can base your lawsuit on, after plastic surgery. To clarify, they are; malpractice lawsuits based on tort, breach of contract, acting without authority (negotiorum gestio), or defective service. In determining your base, there are many factors such as the nature of the medical procedure and where it was performed.
For example, when filing a medical malpractice lawsuit against a public hospital, you should rely on the defect of service. However, when suing a private hospital or a doctor, you can rely on tort, breach of contract, or breach of fiduciary duty.
Malpractice lawsuits based on plastic surgery can be complex, involving various legal aspects. To explain the specific lawsuit case for plastic surgery, first, we need to explain the legal background briefly.
1. What is a malpractice lawsuit based on a tortious act?
A tort is the damage caused by a person to another person by an unlawful and defective act outside the contractual relationship. In short, if you don’t have a contract with the doctor regarding medical intervention, your legal ground can be a tortious act. Because any intervention made by the doctor to the human body, any violation of medical standards is a tort.
Therefore, tort liability requires compensation for the damages caused to the patient due to doctor’s negligence. For example, if you enter an emergency room of a private hospital in Turkey with the need for urgent medical care, you can sue the doctor who did not take care of you according to the provisions of the tortious act. This is because there is not yet a contractual relationship between the patient and the doctor.
2. What is a malpractice lawsuit for breach of contract?
In non-emergency cases, a contractual relationship between the patient and the doctor is essential. In fact, except for emergencies or cases requiring an extension of the surgery, it is mandatory to establish a contract. That is to say, such a contract must determine the framework of the intervention between the patient and the doctor. Yet, despite the contract, the patient may still file a lawsuit based on tort.
Depending on the nature of the medical intervention, the contract may be; a representation agreement or a contract of work.
– Representation Agreement:
As a rule, the doctor/patient relationship is a representation agreement, in terms of legal nature. To clarify, the doctor is considered the agent to perform the medical practice. Moreover, according to the law, the doctor is liable for damages arising from the lack of diligence. Certainly, diligence may be in the doctor’s efforts, procedures, actions, and behaviors to achieve the result in the diagnosis and treatment stages.
– Contract of Work:
We can describe medical practices that aim for the doctor to create “a work in the human body” as a “contract of work”. For example, all kinds of prostheses, laser hair removal, beauty treatments, plastic surgeries, liposuction, tummy tuck, nose reshaping (rhinoplasty), breast reduction, breast enlargement, rabiaplasty, eyelid surgery, ear correction surgery, fat trasfer, facelift etc.
One of the best examples that helps to distinguish representation agreement and contract of work is as follows. There is a representation agreement with the dentist who treats any tooth. However, there is a contract of work with the dentist who applies dentures (prosthetic teeth) to the patient.
3. What is a malpractice lawsuit for unauthorized work (negotiorum gestio)?
If the doctor performs a medical intervention without obtaining the permission and approval of the patient, there is unauthorized work. In such cases, the doctor is liable for compensation for any kind of negligence. For example, when it is necessary to expand the operation during surgery, you can sue the doctor due to his/her negligence, based on unauthorized work.
4. What is a malpractice lawsuit for defective service?
Private and public hospitals have the same legal liability regarding medical standards and medical malpractice. However, the liability of public hospitals is based on the defective service under the provisions of administrative law. In this article, we will not dive deep into other legal details but focus on malpractice lawsuits arising from plastic surgeries.
Lawsuit based on plastic surgery: why is it important to define the type of agreement?
When it’s a representation agreement, doctors are liable for their medical negligence. On the other hand, when it’s a contract of work, the doctor is responsible for the entire damage, unless he/she is faultless.
Moreover, in a contract of work, the doctor is liable for compensation arising from the failure to obtain the result. Because a contract of work is where doctors undertake the obligation to obtain a certain result. One of the important features that distinguishes the contract of work from other contracts of performance is the responsibility for the result. That is to say, the commitment of the doctor to produce a result in line with the will of the patient. For instance, doctor’s promise to fix the patient’s arched nose with a nose rechaping surgery is a contract of work. Likewise, hair transplants, teeth implant, breast enlargement are also contacts of work.
In the event that plastic surgery results in a defective way, you can file a lawsuit for material and moral compensation. Moreover, you can sue the doctor, the health institutionor even the insurance company.
In procedures such as hair transplantation or plastic surgery, the doctor is under a duty of loyalty and duty of care. The duty of loyalty is the obligation of the doctor to do what is in the best interest of the patient. As a result, the doctor has to refrain from any action that may harm the patient or from defective performance.
What is a defective performance in plastic surgery?
- If the result obtained at the end of the plastic surgery is not in accordance with the qualifications agreed upon in the contract.
- If the result is not in accordance with the surgery’s purpose that is expected by the patient.
- If one or more of the necessary qualities are not present in the result.
Certainly, the doctor must determine and apply the appropriate treatment. Above all, doctor must enlighten and warn the patient about the negative consequences that may occur. In other words, doctor must obtaion patient’s consent after explaining even the rare results that may occur.
Which court to file a lawsuit in aesthetic operations or hair transplantation procedures?
In cases where there is a representation agreement, the competent court is the consumer court. In this context, if you will sue a self-employed doctor for material and moral compensation you must apply to the consumer court.
Whereas, for material and moral damage lawsuits filed against public hospitals or health institutions must be filed in the “administrative court”.
Finally, if you want to sue the doctor’s insurance company due to medical malpractice, you need to apply “commercial court of first instance”.
How much time do I have to file a lawsuit after plastic surgery? (statute of limitations)
The statute of limitations for malpractice lawsuits against the private hospital or the doctor in the consumer court based on a “contract of work” is 5 years. However, if the doctor is seriously negligent in medical practice, the statute of limitations may be extended to 20 years, regardless of the nature of the procedure.
For lawsuits based on unauthorized work, the statute of limitations is 10 years. Therefore it is important to properly define your case.
In short, in aesthetic interventions, such as plastic surgery, it is essential that the doctor achieves the goal he/she has committed to. If you believe there had been a defective performance, we highly suggest you to contact lawyers, since it’s crucial to define the legal ground before taking any action. You can always contact us for further information.
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