As in the relationship between the physician and the patient, it is argued that there are three types of relationships between the private hospital and the patient. These are contractual, vicarious performance and tortious action relationships, respectively.
Contractual Relationship
Although there is no dispute that the relationship with the patient is based on a contract in terms of private hospitals and paid health services, the type of contract is debated. The opinions put forward are “Hospital Admission Contract” for the hospital, “Physician Contract” for the physician, or a combination of both contracts.
In the case of inpatient treatment, the hospitalization contract will include, in addition to medical treatment, various obligations such as hospital care services, hospitalization, hospitalization, feeding and drinking, and ensuring the safety of life. In this form, the contract appears as a mixed contract. However, since the purpose and main element here is “treatment”, it is considered that it would be more accurate to characterize it as an “agency contract” together with the medical contract.
“The operator of a private hospital is obliged to act as a prudent merchant in his capacity as a merchant, as well as to show the loyalty and care necessary to prevent harm to the patient and, in special cases, to his relatives since the service he provides is a public health service that closely concerns the right to life. This care should be shown at a high level, especially in terms of selecting and supervising doctors and other auxiliary personnel, and the same principle should not be forgotten in the preparation of other conditions. When these principles are taken into consideration, human life is the main consideration.” (HGK.23.06.2004, E.2004/13-291 K.2004/370)
Non-Agency Relationship
A state of necessity must be manifested for a relationship without an attorney to arise. In the event of a state of necessity, no contractual relationship can be established between the patient and the physician, since the patient will not be in a position to make any voluntary declaration about whether or not to receive treatment.
Another case of work without a power of attorney can be exemplified as the extension of the treatment applied as a result of the complication of the patient while the patient is undergoing treatment, but it is not possible to obtain consent from the patient in this regard. In these cases, the provisions on the unauthorized performance of work without a power of attorney may also be applied.
Tort Relationship
Since medical treatment is generally a disposition over the patient’s bodily integrity and health, every damaging action contrary to the law, contract, medical science and professional rules also constitutes a wrongful act within the meaning of Article 41 (TCO.49) and subsequent articles. In such cases, contractual liability and extra-contractual liability (tort liability) compete. The injured patient may file a lawsuit against the hospital organization on the grounds of breach of contract (BK.96, TBK.112) or tortious act (BK.41 et seq., TBK.49 et seq.).
Responsibilities of Private Hospitals
Liabilities
As with any liability, liabilities are the result of the failure to fulfil the obligations as required. These include the obligation to treat the patient, the obligation to perform hospital care services properly, the obligation to provide health conditions in the hospital, the obligation to keep all kinds of tools and equipment operational and ready at all times, the obligation to inform and enlighten the patient, the obligation to show loyalty and high care, the obligation to keep and archive the patient’s records properly, the obligation to keep secrets and the obligation not to overcharge.
Causality Link
For the hospital to be held liable for the harmful consequences caused to the patient, it is essential to establish a “causal link” between the obligations and public duties of the hospital and the harmful consequences. Sometimes there are hesitations in establishing this link.
Although the defendant doctors were not employees of the hospital, they did not arrive there with the necessary tools and equipment for the operation; these and the necessary conditions were provided by the hospital. By providing the doctors with space and equipment for the operation, the hospital management used them as “helpers”, albeit for a short period, and gained a profit from this. In addition, the patient, by accepting to undergo surgery in the hospital chosen by the physicians, has entered into the trust environment of the agreement between the physicians and the hospital. Here, there is a “strict liability” on the part of the hospital. The nurses, midwives and other auxiliary personnel of the defendant Private Hospital were also involved in the concrete case.
“The defendant company has established a binding legal relationship between the parties by accepting the surgery to be performed at its facility. The plaintiff consented to be operated at the health facility of the other defendant company recommended by the defendant doctor, and the defendant company agreed to perform the surgery and treatment at its facilities. In this case, a legal relationship has been established between the plaintiff and the defendant’s doctor directly and with the health facility through the defendant’s doctor. Here, the plaintiff has chosen this place by considering the facilities of the defendant company, in this context, facts such as service and health equipment, and the defendant company has accepted the operation of the patient in its facility, and a binding legal relationship has been established between the parties. In other words, the defendant company accepts by proxy that the birth and treatment to be performed by the other defendant will be concluded in a desired manner and that it will provide all the facilities in this regard. In this case, the defendant company is liable for the damage together with the doctor, even if it is caused by the defendant doctor’s treatment error.” (4.HD 07.10.2003, 1529-11279).
High Duty of Care
Once the “causal link” for the hospital’s liability has been established, the next step will be the obligation of “due diligence”, as in the case of physicians, and to this will be added the obligation to ensure all kinds of conditions that hospitals must have and which are stipulated in the Regulation on Private Hospitals. The main ones are to keep the tools and equipment ready and working at all times, to inspect the health conditions at all times, to prevent the occurrence of germs called hospital infections, to ensure that facilities such as generators, water tanks, heaters or air conditioners work regularly and do not malfunction in order not to interrupt the operation, to take care that the places where the patient will be hospitalized are clean and well-maintained, to prepare food and diet meals with care and finally to be meticulous in the selection of personnel.
“The operator of a private hospital is obliged to act as a prudent merchant in his capacity as a merchant, as well as to show the loyalty and care necessary to prevent harm to the patient and, in special cases, to his relatives since the service he provides is a public health service that closely concerns the right to life. This care should be shown at a high level, especially in terms of selecting and supervising doctors and other auxiliary personnel, and the same principle should not be forgotten in the preparation of other conditions. When these principles are taken into consideration, human life is the main consideration.” (HGK. 23.06.2004, E. 2004/13-291 K.2004/370)
Full Liability For The Slightest Negligence
In a lawsuit filed, in cases where the material facts demonstrate that a private hospital is liable, the private hospital will be deemed “fully liable for the slightest negligence and fault” as in the case of the liability of physicians and will be obliged to pay the full amount of the damage suffered by the patient, jointly and in chains, together with the physicians and auxiliary persons.
Responsibility For Helpers
Since private hospitals have to use auxiliary persons from physicians to nurses and technical personnel to provide health services, they are liable for auxiliary persons within the framework of Article 116 of the TCO, in addition to their direct liability as a legal entity.
Although the 2nd and 3rd paragraphs of Article 116 of the TCO contain provisions on the abolition or limitation of liability, the irresponsibility agreements to be concluded by the private hospitals and the physicians serving in these hospitals with the patients will be invalid due to the provision of “the practice of an art granted by the government through a privilege” in the 2nd paragraph of Article 99 of the Code of Obligations, with the participation of the medical legislation and the ethical rules of the medical profession.
On the same subject, Article 115, paragraph 3 of the Turkish Code of Obligations No. 6098 states: “If a service, profession or art requiring expertise can only be carried out with the permission granted by law or by the competent authorities, the prior agreement that the debtor will not be liable for slight negligence is null and void”.
Since physicians and all healthcare personnel and hospitals providing healthcare services operate in a vital area such as human health, and since they are “fully liable for their slightest defects” by the established decisions of the Court of Cassation, the judge should be satisfied with the determination of the material facts in a lawsuit, and if the patient does not participate in the fault, he/she should decide based on full fault, disregarding the fault ratios in the expert reports. Moreover, if the negligence and defects of the physician and the hospital are evident, the judge should conclude without appointing an expert.
