Service Failure in Doctor Error (Malpractice) Compensation Case
In general terms, full remedy lawsuits are compensation lawsuits filed against the administration by those whose rights are damaged due to the activities of the administration. In such cases, the court will determine both the material aspect of the incident, i.e. the transactions or actions that caused the damage, and the legal consequences that may arise from this. As a rule, the administration is obliged to compensate the damages that can be causally linked to the public service it provides, and the damages arising from administrative actions and/or transactions are compensated within the framework of administrative law rules, in accordance with the principles of service defect or strict liability.
In full remedy cases, since it is primarily based on the control of the lawfulness of the administrative act or action alleged to have caused the damage, the occurrence of the event and the nature of the damage should be examined, whether the administration has a service defect should be investigated, if there is no service defect, whether the principles of strict liability should be applied, and in any case, the reason for liability should be clearly stated when awarding compensation. A service defect, which can be defined as an objective defect, failure or gap in the establishment, organization or functioning of a service that the administration is responsible for carrying out, occurs in cases where the service functions poorly, late or not at all, and leads to the emergence of the administration’s obligation to compensate. In this context, a defect in service is a defect that is objective, anonymous and has an independent character, moving away from its meaning in private law. Liability for defects in service constitutes the direct and primary cause of the administration’s liability.
In the health service, where the injured person is the beneficiary of the service and the service is of a risky nature, in order for the administration to be liable for compensation; the damage must have occurred as a result of the administration’s service fault.
In the case, it is undisputed that the defendant administration personnel removed three broken injector tip shaped metals from the body of the patient who was operated on by the defendant administration personnel, and that the patient did not undergo another operation before and after a certain period of time. It is a concrete fact that the Forensic Medicine report does not deny these facts and does not reveal any other reason or possibility to explain the presence of three metal objects removed from a patient’s body three months after the operation and in the operation area, and therefore it is a concrete fact that these three objects were forgotten in the operation area during the operation of the patient. Although it cannot be explained surgically and scientifically how these objects entered the patient’s surgical area, considering that the defendant administration is responsible for the surgical team and the smooth execution of the operation, it is concluded that the defendant administration did not fulfill its obligation of care and diligence in this regard and therefore the service was poorly operated by the defendant administration. For this reason, due to the defendant administration’s service defect in the incident, the Court should make a decision by evaluating the plaintiffs’ request for material and moral compensation, while there is no legal accuracy in the court decision to dismiss the case on the grounds that there is no service defect. (15th Chamber of the Council of State – Decision: 2016/4029).
