Medical Property Praktis ranks first in the middle of the most valuable issues that occupy the field of health law. Medical Malpractice is defined as the loss caused by the health workers not performing the current standard practices during the treatment, lack of dexterity or not giving the patient’s treatment. The Ministry of Health has made a legislative change on medical malpractice. According to this change; With the Law No. 7406 Amending the Turkish Penal Code and Some Laws, the ‘Professional Responsibility Board’ was established, which is responsible for monitoring and evaluating the investigation and recourse process of physicians/dentalists and other healthcare professionals. Izmir Bar Association organized a conference on the subject of valuable changes in the field of health law and informed the lawyers on the subject of ‘Reflections of Recent Legislation Changes on Malpractice Lawsuits and Investigations’. Mithat Kara, one of the lawyers of the Izmir Medical Chamber, shared the details of the change in legislation at the conference, which was held under the titles of changes in criminal investigation and prosecution processes in malpractice cases, preliminary examination, professional responsibility committee, recourse cases, authorized-authorized committees and courts.
Health professionals working in private hospitals are now under protection!
The scope of the Professional Responsibility Council, which will serve as a sub-unit of the Ministry of Health, included doctors and health workers working in private health institutions, about which complaints were filed. Thus, not only health professionals working in universities and public institutions, but also physicians and health workers working in private hospitals were included in the scope of the defense shield. Attorney Mithat Kara, who specializes in medical malpractice within the body of the Izmir Bar Association Health Board, said that this legislative change made by the ministry closes the gap in the article. Lawyer Kara said, “One of the bets that have the most problems in practice and that our colleagues complain about is lawsuits. There are feedbacks from our colleagues in the form of ‘None of the lawsuits filed against physicians can be won due to the defense of each other’. Physicians and health workers on the other side of the business also complain about the fact that many lawsuits are filed against them, and that they are always under the threat of lawsuits, investigations and complaints.
“Healthcare workers are complaining about five or six arms”
“Another hair foot in the medical malpractice cases is the knowledgeable people,” said Av. Kara said, “A scapegoat is sought in court processes, which is unfortunately mostly experts. There are so many different options to take legal action against healthcare workers in Turkey. Now these options have turned the heads of lawyers. A health worker can be complained by writing to CIMER, health directorates and many places from the computer. Many institutions are taking action at the same time, one-on-one about one-on-one action. Each institution conducts its own investigation. The doctor is kept natural to the investigation from five or six branches. The Constitutional Court, on the other hand, says in the documents that come before it regarding malpractice that ‘for me it is an active judicial remedy’. In other words, he says that compensation dynamics should be operated.”
“There is legislative confusion in the field of health”
Pointing out that there is a very messy legislation in the field of health in Turkey, Kara said, “It is not possible to master all these legislations one by one. You may not see the legislation you see today in the field of health tomorrow. Identifying and examining texts between countries plays a valuable role in being a guide. It is also valuable to identify the basic laws regarding this issue. So, what should we pay attention to the reflections of the law numbered 7406, which entered into force in May, on this field, the investigation processes and the litigation processes? A new committee was formed under the name of professional responsibility within the Ministry of Health. A delegation of 7 people. It was created as a sub-unit of the Ministry of Health. In the delegation, in which bureaucrats in the ministry take charge, second and third councils can be formed according to the number of documents according to the requirement. A mission that fundamentally affects the judicial processes has been attributed to this delegation,” he said.
“No change in universities”
Talking about the process of turning the complaints about the doctors and health workers in the university hospitals into a criminal investigation, Kara said that the legislation change in question does not cover the universities. If there is a complaint about a health worker working within the university, this complaint can be made to the university or directly to the prosecutor’s office. The Prosecutor’s Office makes a decision about the lack of mission regarding the complaint document and sends the document to the Rectorate. The Rectorate makes a positive or negative decision within the framework of the first and last investigation. Depending on the status of this decision, the parties can appeal to the council. The trial begins according to the decision of the Council of State. In order to carry out a criminal investigation against a healthcare worker, the university administrative council and the council must give permission to investigate that person. In short, the Professional Responsibility Council, which was formed on medical malpractice, will not examine the investigations of doctors and health workers working at universities. Only the delegations change for those working within the Ministry of Health. A preliminary examination is made, and then the approval of the regional administrative court is required.
Private hospital employees were taken to the defense shield
“There is no such protection shield for doctors and health workers working in private institutions, but a direct criminal investigation can be made,” said Atty. Mithat Kara emphasized that a step forward has been taken in practice in private health institutions with the change in the legislation in question. Black said:S When you want to complain to a doctor or employee of the Ministry of Health, you can make the complaint directly to the prosecutor’s office. Or you can apply to the Ministry of Health or provincial health directorates. A preliminary review process is being carried out within the scope of Law No. 4483. First of all, the council investigates the physician or health worker. And as a result of the investigation, it was decided to give permission or not to give permission in the previous regulation. Currently, this duty on the basis of provinces has been centralized and given to the Professional Responsibility Council established under the Ministry of Health. From now on, this council will decide whether to authorize an investigation regarding the complaints about the health workers affiliated to the Ministry of Health. The parties have the right to object to the decision of this committee within 10 days from the confirmation of the decision. Ankara Regional Administrative Court is authorized in this matter and according to the decision of this court, a criminal investigation will be conducted or not, according to the decision of this court.
Saying that another issue that completely changed the investigation processes was aimed at private health workers, Kara said, “There was no defense shield for individuals working in private health institutions. With the new regulation, doctors working in private health institutions were also included in the scope of Law No. 4483. A preliminary investigation agency was brought in among them. The first address is no longer the prosecutor’s office, the first address is the Ministry of Health. All doors will go to the Ministry of Health’s Occupational Health Board, and it will be determined whether a criminal investigation will be opened or not, according to the decision of this council. If this regulation has an ongoing investigation permit decision and has become absolute, the investigation will continue. However, the documents of all health workers who do not have a solid criminal investigation permit will go to the Occupational Health Board of the Ministry of Health.
“Council will decide on compensation”
Touching on the subject of changes regarding compensation, Lawyer Mithat Kara said, “The amendment comes to the fore at the stage of recourse to the healthcare worker of the compensation paid by the administration as a result of the compensation lawsuit. With the new regulation, the Occupational Health Committee will decide whether the compensation paid by the administration will be recourse to the health worker. This council will decide whether these compensations will be revoked if the health workers working in public institutions and organizations have been paid for the examination, diagnosis and treatment processes they have done within the scope of the health profession, and if it has been determined that the health worker has misused his duty. The framework for this was not clearly drawn in the law. The subject of recourse became clear with this legislative change. In the event that the healthcare worker deliberately acts in opposition to the requirements of the mission and there is an absolute court decision that he has misused his duty, the Ministry of Health or the university will recourse the compensation paid to the healthcare worker in proportion to his fault. For the recourse cases that are currently ongoing, the law gives a discontinuous decision and gives two months to the administration, which files a recourse case. If the management does not make an application to the Professional Responsibility Board regarding this issue within two months, the case will be rejected. It was only natural for the Professional Responsibility Board to initiate criminal investigations against those working in public and private health institutions, excluding universities. There is a right to appeal within 10 days against the decision of the committee whether to open an investigation or not.” he ended his statement. Izmir Bar Association Leader Lawyer Sefa Yılmaz, who made the opening speech at the conference, stated that although malpractice is a very common bet, there are also lack of information. In the middle of the conference guests, Bakırçay University Law Faculty Acting Dean Prof. Dr. Serkan Çınarlı was born. The moderator of the ‘Reflections of Recent Legislation Changes on Malpractice Lawsuits and Investigations’ conference held by Izmir Bar Association Health Law Board, Member of the Board of Directors of the Bar Association, Atty. by Anil Guler.