Supreme Court ruling on compensation for failed cosmetic surgery

The 6th Civil Chamber of the Supreme Court of Appeals has ruled that a woman whose cosmetic surgery following a breast cancer operation resulted in failure should be awarded pecuniary and non-pecuniary damages.

In Antalya, a woman who developed breast asymmetry after undergoing surgery for breast cancer reached an agreement with a private hospital to correct the issue.

After the asymmetry problem could not be resolved in the operation she underwent there, the woman tried the liposuction method upon her doctor's recommendation. This time, her bowel was perforated during the fat removal from her abdominal area, and she was taken into surgery for a third time to close the perforation.

During this process, the woman, who could not achieve the desired appearance, filed a lawsuit against the hospital and the doctor, demanding compensation of 13 thousand liras for pecuniary damages and 100 thousand liras for non-pecuniary damages.

In the petition for the lawsuit, it was stated that while an attempt was being made to resolve the woman's asymmetry problem, "her abdominal area was cut open for the surgery," and that the woman, who suffered severe trauma, experienced intense pain and suffering due to the surgeries.

The defendant hospital and the doctor, on the other hand, argued that all interventions were performed in accordance with medical rules and that they were not at fault, stating that they had informed the patient about the surgeries.

LOCAL COURT SAID "NO FAULT"

The Antalya 2nd Consumer Court, which heard the case, requested a report from the Council of Forensic Medicine regarding the incident. The report stated that the surgery was medically appropriate and that the bowel perforation that occurred after the surgery was in the nature of a "complication." The report stated that it was concluded that there was no medical malpractice in the incident.

Deciding that compensation could not be demanded as no fault of the hospital and the doctor could be determined in the incident, the court dismissed the case.

In the court's decision, it was noted that the written consent obtained from the patient regarding the surgeries stated that abdominal organ perforation was a rare complication, and that the expert report also concluded that the surgery was medically appropriate.

"THE DESIRED SHAPE MUST BE ACHIEVED"

The 6th Civil Chamber of the Supreme Court of Appeals, which reviewed the file upon appeal, ruled that it was not correct for the court to dismiss the case, even though the plaintiff's demands for pecuniary and non-pecuniary damages should have been evaluated and a decision made accordingly. In this context, the Chamber overturned the local court's decision.

The decision stated that the contract between the parties was different from the contract regarding treatment between a physician and a patient, and that it was understood that the provisions of a "contract for work"—a type of contract where one party undertakes to produce a work and the other party undertakes to pay a price in return—should be applied in the case subject to the lawsuit.

Pointing out that although the report obtained by the court concluded that there was no medical malpractice, a commitment to a result is in question in a contract for work, the decision included the following assessments:

"If the result is not achieved, it must be accepted that the contractor has not fulfilled their performance. In the case subject to the lawsuit, the plaintiff underwent breast aesthetic surgery for breast augmentation and correction of asymmetry, and it is required that her breasts be brought to the desired shape. It is understood that the plaintiff had to undergo a second cosmetic surgery because the desired result was not achieved after the first surgery, and that she had to undergo surgery again due to bowel perforation during this operation, that new scars formed due to the surgeries undergone, and that the breast asymmetry was not corrected; therefore, it is understood that the defendant party did not fulfill its result-oriented performance. In this case, although the plaintiff's demands for pecuniary and non-pecuniary damages should have been evaluated and a decision made according to the result that would emerge, it was not correct for the court to decide to dismiss the case, and the decision had to be overturned."

News Source: AA