May the Physician be Sued If the Outcome of the Aesthetic Surgery is Disappointing?2019, Erdemir&Özmen Avukatlık Ortaklığı
May the Physician be Sued If the Outcome of the Aesthetic Surgery is Disappointing?
Aesthetic surgeries can sometimes be requested by individuals dissatisfied with their external appearances, while they can also be requested by people with health problems. Therefore, the physician intervention can be either inevitable or it can depend on the patient’s request. The matter of whether the intervention is made for therapeutic purposes or aesthetic concerns is of importance, since it creates a difference in terms of the civil and criminal liability of the physician. For instance; while a congenital or acquired nasal deformity due to trauma causing breathing difficulties requires purposive correction, a person may like to make a change in the appearance of his or her nose because of his or her dissatisfaction.
What is the legal nature of aesthetic operations?
In the doctrine, the legal nature of the relationship between the patient and the physician remains to be debatable; however, it is usually adopted that a power of attorney relationship is established between the physician and the patient. In the long-established jurisprudences, the Supreme Court of Appeals adopts the physician-patient relationship established for treatment purposes or other medical interventions as a power of attorney relationship and emphasizes the existence of a trust relationship by establishing a similarity between physician-patient relationship and attorney-client relationship. However, while the legal nature of the relationship established between the parties due to the operations performed for aesthetic purposes, not for treatment purposes, is not adopted as a power of attorney relationship by the Supreme Court of Appeals; its long-established decisions order that the relationship bears the characteristics of a contract of work.
The recent decision numbered 2018/4953 E., 2018/4526 K. and dated 19.11.2018, rendered by the 15th Civil Chamber of the Supreme Court of Appeals is as follows: “In aesthetic interventions, the contractor, in the concrete case, the hospital and the physician guarantee that the patient will be provided with the outcome he wishes. In the planning part, the processes to be carried out and the outcome are explicitly guaranteed. In fact, the difference between a contract of work and a treatment contract is related to the guarantee for the outcome. Aesthetic intervention represents a contract whose outcome is guaranteed. On the other hand, the contractor’s obligations are regulated by the article 471 of the Turkish Obligations Code, which states that: ‘(1) By observing the client’s rightful interests and acting faithfully and meticulously, the contractor is obliged to perform the obligations he undertakes. (2) In determining the contractor’s responsibility arising from his duty of care, the acts, which conform to the professional and technical rules and should be exhibited by a prudent contractor that undertakes works in a similar field, shall be taken as basis’. As will be understood from these provisions, the physician who is a contractor is under the obligation to perform his undertaken works by acting faithfully and meticulously. It is also expressed that the professional and technical rules, which should be observed by a prudent contractor who undertakes works in a similar field, shall be taken as basis for the contractor’s responsibility arising from his duty of care.
Furthermore, by the nature of the contract of work, the contractor should be deemed to have guaranteed the outcome. In the complications, it is the responsibility of the contractor (of the physician/of the hospital operator) to perform the obligation to inform and carry out the complication management properly”. The decision makes a distinction between the operations performed for treatment purposes and the operations performed for aesthetic purposes, emphasizes that the operations for aesthetic purposes bear the characteristics of a contract of work and addresses in what sense the physician is responsible.
When aesthetic operations are addressed in terms of the characteristics pertaining to a contract of work, the main distinction will be to provide an “outcome guarantee” in such contracts. This is because; the characteristics that the client makes another person perform a work and that, in return, the client pays a fee to the person are contained in the agency contracts as well. To get back to the distinction “outcome guarantee”; while a relationship is established between a physician and a patient for an aesthetic operation, the person requesting for the operation tells the physician about the details of the outcome he or she wishes and the physician promises that he will be able to accomplish this outcome. After this point, a relationship shall be deemed to have been established between each other, and the physician shall be responsible for the commitment guarantee.
Is not there a limitation to this responsibility? Will the physician be liable under any circumstances, when the outcome is disappointing?
As is known; interventions on humans is much more complex than making changes on or creating a solid object. This is because; since each individual’s biological constitution is different from another, their bodies’ responses to surgery will vary to that extent. The responsibility of the physician at this stage is limited to the fulfillment of his obligation to inform the patient prior to the surgery, provision of an adequate process management to the patient by performing any necessary tests and analyzes, and exercise of an adequate care to achieve the aimed outcome. The physician shall not have a liability for the occurrence of an unforeseen complication or for an unexpected effect which does not arise from the physician’s own fault or negligence, however, which originates solely from the patient. However, in case the physician does not inform the patient adequately, has a fault at the time of the surgery or does not inform the patient about the post-surgical process etc., these cases will lead to the physician’s liability. Likewise, the physician will be deemed to be in breach of his obligation to inform and in breach of his duty of care.
What are the patient’s rights against the liable physician?
The patient, who could not attain the outcome he or she wished or has suffered a damage, may file a lawsuit for his or her pecuniary and non-pecuniary damages and may also file a criminal complaint on the basis of the physician’s criminal liability arising from his wrongful act. However, as we have stated, wrongful act constitutes the main condition for the physician to be held liable in these legal proceedings and therefore, the nonexistence of the wrongful act will need to be proved by the physician or the existence of the same will need to be proved by the patient, depending on the type of the legal proceeding.
In conclusion; for aesthetic operations, the relationship established between a patient and a physician bears the characteristics of a contract of work and the physician is responsible and liable for his outcome commitment. However, this responsibility and liability would arise limited to certain cases; and in case it is found that the physician is liable, the patient’s right to indemnity will arise and it may also come into question for the blamable physician to be faced with a penal sanctioning.