Legal Character of the Relationship Between Physician and Patient

Atty. Oktay Özer

In General

 

Patient is a person in need of benefitting from health services. This need may be physical, psychological or social. 

 

The main point that defines the legal relationship between a patient and physician depends on whether the physician is self-employed; employed by a private hospital; or by a public hospital. This subject shall be evaluated in three sections.

 

SECTION 1: Legal Character of a Self-Employed Physician-Patient Relationship

 

Legal relation between a self-employed physician and a patient may be encountered in four ways. These are:

  1. Proxy contract relation,

  2. Contracts for work relation,

  3. Acting without authorization relation, and

  4. Tort relation.

 

A. Cases of proxy contract

 

Proxy contracts are defined by the provision of Article 502 of Turkish Code of Obligations No. 6098. According to the law, a contract of proxy is an agreement where the proxy holder undertakes to perform a particular business or transaction for the principal. To the extent that their nature is applicable, provisions on mandate shall be also applied to the contracts for work which are not regulated by this Law.  If there is an agreement or practice, proxy holder shall be entitled to charge.

 

Physician is obliged to fulfil all the occupational conditions, precisely take all the measures necessitated by the physical condition by medically identifying the patient’s condition timely and promptly, and determine and apply the appropriate treatment without any delay. 

 

In the cases of uncertainty, even at a minimum, the physician is responsible for doing relevant research to eliminate this hesitation and for taking protective measures in the meanwhile.  While deciding among different treatment methods, characteristic features of the patient and the disease should be taken into consideration, all the attitudes and behaviours that may put the patient at risk should be avoided and the safest way should be chosen. Indeed, the principal (patient) is entitled to expect a rigorous care and attention at all stages of the treatment from the proxy holder who is performing an occupational work. The proxy holder who fails to exercise due diligence is considered as failing to perform the proxy duly.[2]

 

B. Cases of contracts for work

 

We know that there is no strict rule for applying proxy contracts to all cases of agreement between a patient and physician. In some cases the relationship between the patient and physician can constitute a contract for work. In cases where the physician guarantees an outcome, provisions of contract for work shall applied to the present case. As it is well known, proxy contract does not imply any result commitment. Proxy holder is responsible for performing the assigned work on the principles of loyalty and care, and is not held accountable for the resultant outcome. However, the contractor in the contract for work has undertaken to provide a work.[3]

 

Breast or abdominal reduction surgeries[4], abdominoplasty[5], denture construction[6], dental implantation or banding[7], tooth extraction or tooth filling[8], prosthesis palate construction[9], nose surgery[10], face-lift[11], laser hair removal operation[12] are some of the examples contract for work.

 

C. Cases of acting without authorization between the physician and patient

 

The cases where a patient is involuntarily subjected to the intervention of a physician in a way that may be described as a medical state of necessity, lead to a relation where the physician behaves in the capacity of an “agency without authorization”. A doctor who is the first responder at an accident constitutes an example for these cases. When the same patient who was involved in the accident is brought to a public or private hospital and treated there, such case shall constitute a relation of acting without authorization on the part of the operator or the Government.[13]

 

Emergency situations or cases of extension of an operation are considered as “acting without authorization” since it is not possible to establish a contractual relationship.[14]

 

D. Cases of tort between the physician and patient

 

The provision of Article 502 of Turkish Code of Obligations No. 6098 sets forth lack of capacity of the agent who conducts business. Accordingly: “Where the agent lacks capacity to enter into contractual commitments, he is liable for his agency activity only to the extent that he is enriched as a result of such commitment or he is liable for his agency activity in the amount which he alienated in bad faith.  Broader liability in tort is reserved.” The fact that broader liability in tort is reserved with this last sentence, provisions regarding acting without authorization shall be applied to cases where there is no contractual relationship between the physician and patient.  However, the physician shall be also subjected to tort liability in cases of damages occurring broader than the scope of the article, due to wrongful intention or negligence of the physician.

 

SECTION 2: Legal Character of the Relationship Between Private Hospital and Patient

 

When a patient applies to a private hospital with the purpose of treatment, such case shall constitute a contractual relation between the parties. This contract is not drawn up between the physician and patient. It is an agreement involving the private hospital and patient. Physician is not included in the contract as a party. Thus, in case of liability to the patient, the physician can not be held accountable for non-compliance. In such case, the physician shall be liable for the provisions of tort. Private hospital is accountable to its patients also as per Article 116 of TCO due to the physician it employs.

Being admitted to the hospital, the patient goes under the protection of hospital officers, and requests by right the best possible treatment and care service. “Organization liability” of the hospital operator is indeed a view of duty care of the hospital that should be given to the patient in person[15].

SECTION 3: Legal Character of the Relationship Between Public Hospital and Patient

Relationship between a patient who applies to a public hospital and the hospital is not a contractual one. Here, the patient is a person benefiting from a public service. In this regard, the liabilities in terms of damages arising from medical interventions performed at public hospitals should be determined in accordance with the basis of public law instead of private law rules. When public hospitals are concerned administrative law becomes in question instead of contractual relationship.

In this case, it is required to determine whether a misconduct of a public official is a neglect of duty or a personal neglect that is separable from its duty. Public institutions perform community services. However, since public institutions are legal entities and this entity is not a concrete but an abstract one, they cannot perform the community service personally. Community service is performed by public officials who are natural entities and by the equipments used by them. As a result of this, any negligence that may occur in cases of damages during the performance of community service arising from negligence and mistakes of public officers or equipments used by them constitutes neglect of duty of the public institution. At this point, it is impossible to make reference to personal negligence of the public officer that is separable from the performed service. Negligence of the public officer constitutes a neglect of duty here.

Personal negligence separable from the duty is a negligence arising from the private life, personal attitude and behaviours of a public officer who is not related to the public service.

CONCLUSION: As analysed above, legal character of the physician-patient relationship differs case by case depending on whether the physician is self-employed, employed by a private hospital or public hospital, on the nature of agreement between the parties or no agreement at all. In this case, each legal relationship should be evaluated in its entirety and placed under appropriate legal status. 

 

 

 

[1] Attorney registered to İstanbul Bar Association.

[2] Yargıtay 13. Hukuk Dairesi E. 2015/3276 K. 2016/6289 T. 1.3.2016

[3] 3. Hukuk Dairesi 2015/17764 E. , 2016/1256 K

[4] 3. Hukuk Dairesi - 2015/1871 E - 2016/1669 K

[5] Yargıtay 3. Hukuk Dairesi E. 2015/11672 K. 2016/4827

[6] 3. Hukuk Dairesi - 2015/3475E - 2016/1891K

[7] Yargıtay 3. Hukuk Dairesi E. 2014/12673 K. 2015/6389

[8] 3. Hukuk Dairesi - 2015/3391E - 2016/2393K

[9] 3. Hukuk Dairesi - 2015/12780E - 2016/5642K

[10] Yargıtay 3. Hukuk Dairesi E. 2015/9077 K. 2016/5505

[11] Yargıtay 3. Hukuk Dairesi E. 2015/12079 K. 2015/19759

[12] Yargıtay 3. Hukuk Dairesi E. 2015/11332 K. 2015/18789

[13] Hasan Tahsin Gökcan, Tıbbi Müdahaleden Doğan Hukuki ve Cezai Sorumluluk, 3.Bası, 2014 yılı, s.914

[14] Hakan Hakeri, Tıp Hukuku, 10.Bası, 2015, s.595

[15] Mario, Devermann: Organisationsverschulden im klinischen Bereich, Dissertation Osnabrück 2003, page 1. Aktaran; Akkanat, Halil: Hastaneye Kabul Sözleşmesinin Görünüm Tarzları ve Sorumluluk Düzeni, Prof. Dr.Özer Seliçi'ye Armağan, Seçkin Yayınevi, Ankara 2006, s.32