Health Law

Scope

Health law covers the full range of legal relationships concerning the provision of healthcare services. Informing the patient and obtaining consent, the keeping and confidentiality of medical records, the liability of healthcare personnel and institutions, the opening and operation of private healthcare institutions, and the rules on pharmaceuticals and medical devices are subjects within this area. The principal instruments are Law No. 1219 on the Practice of Medicine and Medical Sciences, Basic Law on Health Services No. 3359, Law No. 1262 on Pharmaceutical and Medicinal Preparations, the Regulation on Patient Rights and the regulations on private hospitals. Health data relating to patients are protected as special categories of personal data under Law No. 6698 on the Protection of Personal Data.

The legal basis of liability varies according to the nature of the provider of the service. In private hospitals and private practices, the relationship between the physician and the patient is mostly regarded as an obligation relationship akin to a mandate, and the physician’s duty of care comes to the fore; the provisions on tort may also become relevant. In public hospitals, by contrast, liability is based on the administration’s service fault, and disputes are resolved before the administrative courts. Physicians and healthcare personnel may also bear disciplinary and criminal liability.

Frequently encountered matters

• Claims for pecuniary and non-pecuniary damages arising from medical intervention (Turkish Code of Obligations Arts. 49, 54, 56).
• Informed consent: the scope of the information provided, the form of the consent document and its evidential value.
• Access to the patient file, discharge summary and medical records; retention of records.
• Opening, licensing and operating processes for private hospitals, clinics and private practices.
• Legal liability of healthcare personnel, disciplinary investigations and professional body proceedings.
• Full remedy actions based on service fault in public hospitals.
• The position of physicians and patients’ relatives in investigations concerning negligent injury and death.
• Legislation on pharmaceuticals, medical devices and food supplements.
• Organ and tissue transplantation, health tourism and the admission of patients from abroad.
• Relationships between healthcare institutions and the social security institution.

Process and points to note

In disputes arising from medical intervention, documents such as the patient file, discharge summary, consent forms, and imaging and laboratory records are obtained at the first stage. As a rule, the patient’s request for the file is made by written application to the institution; obtaining the records in full is important for the subsequent expert examination.

Actions for damages against private healthcare institutions are brought before the civil courts. For tort-based damages claims, the limitation period is two years from the date on which the damage and the person liable became known, and in any event ten years from the act (Turkish Code of Obligations Art. 72); for contract-based claims, the general period is ten years. For allegations of service fault in public hospitals, by contrast, a written application must be made to the administration before a full remedy action is brought; the application must be made within one year of learning of the damage and in any event within five years of the date of the act (Administrative Procedure Law No. 2577 Art. 13). The time limit for bringing an action following the administration’s response or implied rejection is short.

In these cases, whether the medical practice complied with the standard is determined by a report obtained from bodies such as an expert appointed by the court or the specialist boards of the Council of Forensic Medicine (ATK); the outcome of the report is to a significant extent decisive. In incidents where a criminal investigation is possible, civil, criminal and administrative proceedings are assessed together. For offences allegedly committed by physicians who are public officials in the course of their duties, the procedure requiring permission to investigate may apply.

Our office’s approach

In health matters, the medical documents and the legislation are first examined together, and it is determined which judicial route and which time limit the claim is subject to. Consent and information texts needed by patients and healthcare institutions are prepared as documents.