Malpractice and Legal Liability

According to Article 13 of the Turkish Medical Association Profession Ethics Rules, malpractice means a patient getting harmed due to a physician's ignorance, inexpertness, or negligence. Consented risk, unwanted side effects, etc., are not considered in the scope of such a term. Malpractice refers to situations where the consequence could have been prevented either by foreseeability or by taking measures. Still, the result occurs due to a mistake in the processes of foreseeability or taking actions.

In the cases where the patient's informed consent is obtained, the situation is called consented risk – medically called complication, where the physician does not have liability due to the emerging harm. 

What is the Meaning of Malpractice?

A mistake is failing to demonstrate the care that should've been provided according to medical standards at all stages of the intervention, such as before the physician's medical intervention, during the intervention, and after the intervention.

Any physical intervention that does not seem appropriate for medical attention is also a mistake in practice. Detailed information about what an example of malpractice might be is included in the continuation of the article. 

What is the Most Common Type of Malpractice?

The physician's duty is not to cover the patient's definitive recovery. Even though the physician acts under the rules and requirements of medical science, the physician will not be responsible for medical intervention in cases where a positive result cannot be obtained. Since intent is not sought in cases of medical intervention, malpractice can only occur through negligence.

To make this distinction, applying to the Istanbul Lawyer Firm is necessary. Our law office provides the best service to its clients because it is an expert in this field. Whether the medical intervention is malpractice or a complication is assessed by malpractice lawyers, and cases are made on a case-by-case basis. 

What are the 4 Things That Must Be Proven to Have a Successful Negligence Lawsuit?

In legal affairs, there are four definite elements of negligence. To win a malpractice case, the lawyer must have enough proof for these four elements.

  1. Existence of Duty: It must first be proven that the physician owed a duty to the client. In most cases of malpractice, this is a given fact. The physician, by his work definition, owes a duty to the patient.
  2. Breach of Duty: It has to be proven that the responsibility was not carried out, and therefore, the duty was breached. This is the most critical part of the negligence lawsuit as it establishes the malpractice claim.
  3. Causation: It must be proven that this breach of duty led to harm on the part of the patient. This step is mainly examined on a case-by-case basis. 
  4. Damages: At last, the result of this malpractice should be proven. Hospital expenses or medical records, or physical injuries can be used as proof for this step. 

Winning a malpractice case is not that hard work for a good lawyer. Since all these four elements must be proven efficiently, it is recommended that you work with an experienced lawyer in this field. Istanbul Lawyer Firm provides its clients with the most experienced and knowledgeable lawyers in medical malpractice.

Failure in Diagnosis

Failure in diagnosis, more commonly called "misdiagnosis," is the most common type of malpractice. Due to the performance of an obligation, the physician needs to do the required medical interventions, analyze and evaluate the results under the orders of medical science to diagnose. Otherwise, mistakes made within this process are counted as failures in diagnosis. 

Although the physician is not obliged to be successful in diagnosis, what is expected of him/her is the obligation to intervene, perform examinations and tests and reach a diagnosis as required by his expertise and the current disease in the case. 

In the cases where a fundamental mistake is made, the incorrect evaluation of findings is considered a serious violation of the duty of care. If the physician makes this severe diagnostic error, the liability for compensation arises. Istanbul Law Firm carries out litigation procedures by evaluating all issues. 

Mistaken Treatment

Mistaken decisions made by the physician during or after the medical intervention are considered treatment mistakes. Mistaken treatment may occur by a physician's failure to perform the medically necessary action or by taking an action that is not medically necessary. Usage of unmodern and risky methods in diagnosis and treatment is considered malpractice and under the physician's liability.

Despite being necessary for the treatment, failure to use existing technical tools is considered severe malpractice. Furthermore, failure to perform a medical intervention, although it is necessary, constitutes the most fundamental mistake encountered within the scope of treatment mistake, which is legally considered a negligent act. Delaying the intervention can be evaluated within this scope.


One of the essential definitions of malpractice is failure to do necessary tests and examinations. Keeping the state of medical science in the period of medical intervention in mind, the principle of proportionality should be taken as a basis for the physician's diagnosis and treatment methods to be applied to the patient. In other words, cases where balance disorder occurs are considered mistaken treatments. 

What are the Best Defenses Against Malpractice?

If the physician cannot perform the medical intervention required by the branch, s/he must refer the patient immediately. In cases where the necessary intervention cannot be made in the preferred place, the responsibility for the damage arising from the delay lies with the physician. Physicians must consult with their colleagues who are experts in their field, and malpractice may occur when consultation is not applied. 

If the physician makes a treatment error, legal liability will arise. So, the physician will be criminally liable when the patient is left injured or dead. ER&GUN&ER Law Firm provides legal support to its clients with its expert lawyers. Istanbul Lawyer Firm's criminal attorney files a lawsuit for compensation after determining the physician's responsibility. 

Management of Complication

The physician is not liable for complications that may occur during a medical intervention, and liability may be questioned when the complication is not managed as supposed to be. For a physician to be liable for a complication, neglect must exist. In cases where the physician does not notice the complication on time or not taking necessary precautions, complications will transfer into malpractice, and the liability of the physician will arise.

Violation of Obligations After Treatment

The debt of care in medical interventions is not limited to the respect shown during the treatment, but this debt remains valid post-treatment. The physician may advise and warn the patient about the post-treatment period, inform the patient, or, if necessary, impose some obligations on the patient after the treatment. In other words, despite the end of the relationship between the patient and the physician, another form of relationship continues to exist. Violation of this obligation is also considered medical malpractice.

The physician should constantly monitor the process and success of the treatment applied to the patient. Control and surveillance failures, such as the inadequacy of post-operative observation, and failure to take protective measures, are considered medical malpractice.

While undertaking the patient's treatment, the physician should evaluate whether the client has sufficient knowledge, equipment, and experience to provide the medical standard. If s/he concludes that they cannot achieve the standard, s/he should consult other physicians or refer the patient to a specialist or hospital. In the case where the speciality of the physician is exceeded, the failure of the undertaking will occur.

As a rule, hospitals should have the best technical and medical standards, and existing equipment should be kept in the most modern state. If the hospital fails to meet these standards, the physicians must inform the patient about this situation, and the referral should be made to the hospitals with the said technical standards.

You can read our previous article at