It is regulated in the Universal Declaration of Human Rights that personal safety and liberty are the basic right of every individual. No one can be subjected to torture and cruel treatment. everyone has the right to rest and work for reasonable periods of time.everyone has the right to reach an appropriate level of life that will ensure their health and well-being, including food, clothing, housing, medical care and necessary social services, both for them and for their family, and individuals have security right in other situations where they are deprived of their unemployment, illness, disability, widowedness, old age or livelihood.
In the 17th article of our Constitution, it is regulated that everyone has the right to life and protect and develop their material and nonmaterial existence; except for medical obligations and cases written in the law, the physical integrity of the person cannot be touched and cannot be subjected to scientific and medical experiments without their consent.
It is regulated as follows in the paragraph 3 of Article 56 of our Constitution:"The state ensures that everyone lives their lives in physical and mental health; It regulates the planning and service of health institutions from a one source in order to realize cooperation by increasing savings and efficiency in human and substance power."It is regulated as follows in the paragraph 4:"The state fulfills this task by utilizing and supervising health and social institutions in the public and private sectors."
It is an undeniable fact that an individual must be mentally and physically healthy in order to use their right to live, which is their most basic right, and other connected rights effectively .The material and nonmaterial existence of the individual is the undivided.
Health Law, especially with the reflection of international regulations and developments into national law, focuses on the relationship and the procedures applied in the diagnosis, medical workup and treatment processes of the disease between patients and physicians, nurses, caregivers, other health assistants and hospitals. It is also a wide and dynamic area of law that covers certain situations after such procedures and relatives of patients.To date, many international and national legal regulations, ethical rules and treaties have been regulated in the field of health law.It would be appropriate to say that health law, which renews and develops every day, has a relationship with other legal fields, including criminal law.
The World Medical Association (WMA) was established in 1947 to serve humanity by striving to reach the highest international standards in the field of Medical Education, Medical Science, Medical Art, Medical Ethics and health for all people in the world. In 1946 with the signing of the foundation contract by representatives of 61 countries, the World Health Organization (WHO) was established in 1948. UNICEF and the organizations mentioned above are the main organizations for the protection of the rights required for the health, nutrition, education and general well-being of children.
Declarations published by the World Medical Association and the World Health Organization have an important place as they guide countries' work and arrangements towards patient rights and offer suggestions.
the right to health is defined as the person's body being in full mental, physical and social well-being.The rules regarding the birth of the right to health, its use and legal remedies of disputes are the scope of health law.
The right to health takes part in economic and social rights within the categorization of human rights.Therefore, the right to health includes not only the rights of the person in the process after becoming ill, but also the basic rights and well-being that person should have during life before become ill.Protection of the health of the person before being ill; it includes the right to be in a status of well-being, mentally, physically and socially, and the rights it has to protect its health in the subsequent process after diagnosis, examination and treatment.
on Article 12 of the United Nations Convention on Economic, Social and Cultural Rights signed by Republic of Turkey in 2003, under the title of "right to health standard", signatory states acknowledge that everyone has right to have the physical and mental health standard at the highest level possible. For this purpose, convention regulates that the measures specified in the article will be taken by the signatory states.Among the mentioned measures take part as follows: prevention of environmental, industrial waste pollution, stillbirth, epidemic diseases, occupational diseases, prevention of endemic diseases and other diseases, reducing the existing birth rate, ensuring the healthy development of children, and providing all kinds of health care and care conditions in case of illness.
The Lisbon Patient Rights Declaration published by the World Medical Association in 1981, the Amsterdam Patient Rights Declaration published in 1994, the 1995 Bali Patient Rights Declaration, the 2002 European Status of Patient Rights are important international sources about patient rights.
In our country, progress is being made in the field of health law every day.It is seen that the awareness of the health law has increased in the collective process between doktor, other healthcare professionals, hospitals, patients and patient relatives, and non-governmental organizations, and the positive reflection of this has increased in legislation and jurisprudence.
the opinion that the basis of the health law is based on the relationship between the patient and the doctor has left its place to the opinion that the duties the state is obliged to perform in the pre-disease process and the duties and obligations of the hospital, nurses and other assistant personnel during the diagnosis, examination and treatment process of the disease.
In many cases, the patient's relationship with the doctor begins with the patient's admission to the hospital.instead of going directly to the private practice of the doctor, the hospital applied by the patient, is the first contact of the patient.Therefore, it is clear that the view directly associating the patient's rights with the doctor, ignoring the hospital's obligations to the patient, has no place in many cases.
Considering that even the security officers working in the hospital are obliged to the patient, the narrow interpretation of the scope of the health law will be against both the patient and the physician.
There are many laws, decrees, regulations and circulars in the legislation that in force in the field of health law in our country.
With the health services fundamental law, which came into force in 1987, basic principles regarding health services were regulated.Medical experimentation on humans has been subject to permission of authority, and certain conditions.Health officer working in a private health institution are considered as public servants for crimes committed in connection with these duties.it was stated to the health officers that the deliberate injury crime committed during or because of their duties is one of the crimes deemed to be the reason for the arrest sought in Article 100 of the Criminal Procedure Code.
Some of the most common regulations are as follows:Patient Rights Regulation,organ and tissue transplantation Services Regulation,Personal Health Data Regulation,Regulation on the Elimination of Losses Arising from the Application of Health Professions through Reconciliation,Family Practice Regulation,Business of Inpatient Treatment Institutions Regulation,Nursing Regulation,Private Hospitals Regulation,Regulation on Disciplinary Boards of Contracted Healthcare Personnels,Medical Device Regulation,Ambulance Regulation,Regulation on Home Care Services Delivery,Regulation on Physical Examination, Genetic Examinations and Determination of Physical Identity in Criminal Procedure,First Aid Regulation,urgent health care services Regulation,Regulation on Market Surveillance and Inspection of Products,Regulation on Health Institutions for Beauty and Aesthetics Purposes,Dental Prosthesis Laboratories Regulation,Regulation on the disability scale, Classification of Disability and Health Board Reports to be given to the Disabled.
Generally speaking, a significant part of disputes of the health law arises from medical malpractice.
Medical malpractice;
Lack of communication and wrong registration,
Misdiagnosis,
information and consent errors,
Wrong decision,
Technical errors,
Exceeding the limits of authority,
Consultation errors,
Abandonment and Lack of Care,
Medical malpractices emerge as above.
One of the most important patient rights is the right to informed consent. Consent must be obtained from the patient without hiding anything. Even about the most distant risks, patient should be informed by ing words that the patient can understand. Sufficient time should be given to the patient to think about the information given to them and to evaluate whether to accept the proposed treatment. The questions asked by the patient during the information should be answered as much as possible. The patient should be allowed to be treated at the desired hospital with the doctor they want.the social and cultural level of the patient should be taken into consideration.
In practice, it is seen that both in hospitals and private clinics, the standard form is taken from the patient, and in some minor procedures, the process is carried out without the written consent of the patient.Whereas, each patient and the examination and treatment methods to be applied are different from each other, and the effects of the medications to be used during the treatment and the other procedures to be applied are different.Therefore, both patients and hospitals and doctors should be conscious of this issue.It is useful and necessary to inform the patient individually and to have patient sign the detailed consent form, even after the patient's treatment is completed and the supervision process is completed.
Considering that the physician is responsible not only for his own work and procedures, but also for the other healthcare professionals with whom he / she carries out the diagnosis, examination and treatment processes, the opinion of both the patient and the consultant physician and other healthcare personnel in order to get rid of the compensation obligation or to minimize the responsibility, signed and executed instructions, applications and other operations must carry out written as much as possible.
The physician should not look after the patient for whom she/he is not legally, professionally or scientifically authorized.The physician must adhere to medical ethics and professional principles in relationship with the patient.The physician must act correctly in medical ethics and legally in medical interventions.the physician must have received the informed consent of patient for any intervention.
When an injury occurs in the patient, medical experts decide whether it is a medical malpractice or a physician's fault.
In determining the defect of the physician, the criteria that are expected to be shown by the physician at the same competence level and under the same environmental conditions are taken into consideration.
In the 9th penal department of the Court of cassation states the decision number 2016/2636 E., 2016/12718 K. as follows:"The doctor's action, which does not follow up on the patient's condition after the operation, constitutes the crime of misconduct by neglecting behavior, and the physician's failure to comply with the surveillance obligation is sanctioned in criminal law."
The High department (?)says in its decision 2016/1134 E., 2016/4487 K:"In the hospital where the intensive care unit was not sufficient and there were no specialist doctors, it was decided that the doctors who did not transfer the newborn baby to the appropriate hospital were responsible for the death of the baby."
the 12th penal department of the Court of cassation 2016/2107 E., 2016/6182 K.:"It has been decided that the physician who sends home by giving a fever reducer without giving a full physical examination to the baby who comes with the complaint of high fever and without diagnosing the disease completely, will be responsible."
the 12th penal department of the Court of cassation 2017/1533 E 2017 / 2614 K.:"According to the forensic medicine report, decision of non-prosecution is made about the case of the injured person who came to the hospital as a result of a traffic accident, leaving the hospital without performing the required examinations and subsequently dying as a result of stomach ulcer and its complications."
the 12th penal department of the Court of cassation 2016/469 E., 2016/6671 K:"The doctor is not responsible for not removing the tampon in the nasal cavity of the child after the operation due to the child not coming to the examination."
the Court of cassation decides that aesthetic operations will be resolved according to the provisions of the contract of work.Due to the nature of the contract of work, the contractor must be deemed to have guaranteed the result.The court of cassation decides that it is the responsibility of the contractor (physician) to ensure that the obligation of information in complications and the correct management of the complications is done.
the court of cassation 15. Legal Department No: 2018/3534 Decision No: 2018/4434:"Since the plaintiff has applied to the defendant for aesthetic purposes for under-eye and mid-face lifting, it is clear that the provision of a beautiful appearance suitable for the intended and determined purpose by performing aesthetic surgery is the subject of the contract of work.The reason for signing a contract here is the emergence of a certain result.The work is a result of labor that requires the art and skill of the contractor and the contractor is under an obligation to create the work in the benefit of the owner and without causing any harm to her/him."
Our law office provides legal consultancy and advocacy services to patients, relatives, hospitals, physicians, nurses, insurance companies and other health personnel in disputes arising from health law