Cosmetic Surgery Malpractice in Turkish Law

February 1, 2020 Gökhan Cindemir 0 Comments

Turkey was ranked third in medical tourism by the International Medical Travel Journal. Accordingly, malpractice cases related to foreigners increases day by day. Health tourism is also governed under the law of Regulation concerning International Health Tourism and Tourist Health.According to head of the Istanbul International Health Tourism Association ,Medical tourism has become a booming sector in Turkey with 700,000 people visiting the country last year. There are three types of health tourism: 1. Senior Tourism and Accessible Tourism 2. Thermal Health Tourism and Spa Wellness 3. Medical Tourism Hair transplant, Dental Treatments, Plastic Surgery, Eye Treatments are one of the most popular treatments which attract foreigners. Plastic Surgery mainly encompasses operations such as nose aesthetics, body aesthetics, breast aesthetics, facial aesthetics, ear aesthetics, genital aesthetics. Is Plastic Surgery Malpractice Different than Common Malpractice Cases? Yes. This article is written for that purpose. Unlike common malpractice cases, plastic surgery requires 5 times care as compared to ordinary malpractice cases. Turkish High Court has dozens of decisions stating care liability of the plastic surgery malpractice. On the Basis of Which Contract Plastic Surgery Must Be Considered? Ordinary treatment is considered as a proxy agreement (in other words, agency agreement) which means that doctor does not guarantee about the result. If you have a fever, doctor is not liable in case of failure of recovery. Doctor must do the best to recover the patient however he/she is not liable for recovery. For instance, Doctor gives the pills for ordinary treatment and if it does not work, he cannot be held liable for the failure. Doctor may involve in a cardiac operation. In this risky operation, even high care and all duties of doctor is performed the patient may die. In that regard, doctor cannot be found liable due to result. Negligence is the main factor in ordinary treatments to find doctor responsible. One more example can be given concerning agency agreement. This type of agreement also applies to the lawyers in Turkey. Lawyer does not promise to win the case. Under this agreement type, lawyer supposed to follow the case with care. However, even lawyer loses the case in the end of court process, lawyer cannot be found liable due to the agency agreement between client and the lawyer. Which Contract Type Must Apply to the Plastic Surgery and Malpractice? Under article 471 of code of obligation, agreement for work type applies to plastic surgery cases. Accordingly, unlike agency contract applying to ordinary treatments, plastic surgery is an agreement for work. What Is the Definition of Agreement for Work? Article 470 defines the agreement for work as below: “A contract for work is a contract whereby the contractor undertakes to carry out work and the customer undertakes to pay him for that work.” In Which Scope Agreement for Work Relates to Plastic Surgery Cases? Type of agreement for work is commonly used in the sector of construction. Construction companies undertake the result of construction projects by signing agency contract with their customers. In the end of the construction, the result must be identical as in the project which is promised by the constructor. In this case, negligence of doctor is not only raising liability of the doctor, in addition, the result promised must be identical. Failure in result plays important role in plastic surgery cases. Does Plastic Surgery Doctor Have the Same Liability as Constructor? Exactly, it is the same. Plastic surgery doctor must do the same as patient showed in the photograph of a model that he/she admires. Thus, if a patient said that she/he wants a Brad Pit nose, operation result must be the same as it is promised. How Can We Request Compensation from the Doctor Due to Plastic Surgery Malpractice? Answer of the question requires a new article. Method of compensation cases will be described in an independent article.
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Turkey was ranked third in medical tourism by the International Medical Travel Journal. Accordingly, malpractice cases related to foreigners increases day by day. Health tourism is also governed under the law of Regulation concerning International Health Tourism and Tourist Health.According to head of the Istanbul International Health Tourism Association ,Medical tourism has become a booming sector in Turkey with 700,000 people visiting the country last year.

There are three types of health tourism:

1. Senior Tourism and

Accessible Tourism
2. Thermal Health Tourism and Spa Wellness
3. Medical Tourism

Hair transplant, Dental Treatments, Plastic Surgery, Eye Treatments are one of the most popular treatments which attract foreigners. Plastic Surgery mainly encompasses operations such as nose aesthetics, body aesthetics, breast aesthetics, facial aesthetics, ear aesthetics, genital aesthetics.

Is Plastic Surgery Malpractice Different than Common Malpractice Cases?

Yes. This article is written for that purpose. Unlike common malpractice cases, plastic surgery requires 5 times care as compared to ordinary malpractice cases. Turkish High Court has dozens of decisions stating care liability of the plastic surgery malpractice.

On the Basis of Which Contract Plastic Surgery Must Be Considered?

Ordinary treatment is considered as a proxy agreement (in other words, agency agreement) which means that doctor does not guarantee about the result. If you have a fever, doctor is not liable in case of failure of recovery. Doctor must do the best to recover the patient however he/she is not liable for recovery. For instance, Doctor gives the pills for ordinary treatment and if it does not work, he cannot be held liable for the failure. Doctor may involve in a cardiac operation. In this risky operation, even high care and all duties of doctor is performed the patient may die. In that regard, doctor cannot be found liable due to result. Negligence is the main factor in ordinary treatments to find doctor responsible.

One more example can be given concerning agency agreement. This type of agreement also applies to the lawyers in Turkey. Lawyer does not promise to win the case. Under this agreement type, lawyer supposed to follow the case with care. However, even lawyer loses the case in the end of court process, lawyer cannot be found liable due to the agency agreement between client and the lawyer.

Which Contract Type Must Apply to the Plastic Surgery and Malpractice?

Under article 471 of code of obligation, agreement for work type applies to plastic surgery cases. Accordingly, unlike agency contract applying to ordinary treatments, plastic surgery is an agreement for work.

What Is the Definition of Agreement for Work?

Article 470 defines the agreement for work as below:

“A contract for work is a contract whereby the contractor undertakes to carry out work and the customer undertakes to pay him for that work.”

In Which Scope Agreement for Work Relates to Plastic Surgery Cases?

Type of agreement for work is commonly used in the sector of construction. Construction companies undertake the result of construction projects by signing agency contract with their customers. In the end of the construction, the result must be identical as in the project which is promised by the constructor. In this case, negligence of doctor is not only raising liability of the doctor, in addition, the result promised must be identical. Failure in result plays important role in plastic surgery cases.

Does Plastic Surgery Doctor Have the Same Liability as Constructor?

Exactly, it is the same. Plastic surgery doctor must do the same as patient showed in the photograph of a model that he/she admires. Thus, if a patient said that she/he wants a Brad Pit nose, operation result must be the same as it is promised.

How Can We Request Compensation from the Doctor Due to Plastic Surgery Malpractice?

Answer of the question requires a new article. Method of compensation cases will be described in an independent article.

Cosmetic Surgery Malpractice in Turkish Law was last modified: February 1st, 2020 by Gökhan Cindemir