A health law guide for physicians

Atty. Münevver BİLİR - Health Law Specialist

For physicians, every decision they make while practicing their profession can now lead to much more significant legal consequences due to increased public awareness. This does not mean that the responsibilities of physicians have increased compared to the past; rather, it stems from the increase in the legal search methods and expectations of the public, i.e., patients, under the same scope of responsibility. To ensure that a physician or healthcare worker does not remain under the anxiety of sanctions due to an intervention, they must obtain informed consent whenever possible, and if that is not possible, they must perform the necessary intervention in accordance with the rules of medical science.

CIRCUMSTANCES GIVING RISE TO PHYSICIAN LIABILITY

For legal action to be taken regarding a physician's intervention, the intervention must first be either unlawful or a lawful intervention that contains a medical malpractice error. Otherwise, a lawful intervention that adheres to all rules of medical science...

UNLAWFUL INTERVENTION

There are four fundamental conditions for a medical intervention to be lawful; the absence of any of these makes the intervention directly unlawful without examining whether it was performed correctly from a medical standpoint. These conditions can be listed as: the intervention being performed by an authorized physician or healthcare professional, the patient being informed, the patient's consent being obtained, and the intervention being carried out in accordance with the duty of care and medical indications. The most common cause of unlawfulness in practice is seen in the issues of informing the patient and obtaining their consent. The reason for this is population density and the insufficiency of the number of physicians in the face of this density. Current working conditions also put significant pressure on physicians and increase the likelihood of encountering malpractice when moving to the intervention stage.

The first point to consider for a medical intervention to be lawful is that the person performing the procedure must be a physician or an authorized healthcare professional (midwife, nurse, paramedic, etc.). However, these credentials do not provide absolute lawfulness for every procedure. For more specialized interventions, such as surgical procedures, a specialization requirement is also sought. For example, if a nephrology specialist performs a procedure that falls within the field of neurosurgery, it will constitute a state of unlawfulness from the beginning if it is investigated in the event of a subsequent negative outcome.

Informing the patient is one of the most sensitive points when considering the patient-physician relationship. The process of informing is not considered fulfilled merely by explaining the procedure to be performed in medical jargon. For proper information, the procedures to be performed before, during, and after treatment, as well as potential complications, must be explained in a language the patient can understand. At the same time, it is essential for this information to be recorded in writing for the sake of provability against any future allegations of unlawfulness. While the issues that must be included in the informed consent form are set out in Article 15 of the Patient Rights Regulation, they should not be in the nature of general transaction terms that are prepared in a pre-printed format and do not allow the patient to read and understand them one by one.

For a truly informed patient, the next step is obtaining their consent. First of all, the fact that a patient is informed does not directly lead to the result of giving consent; the main purpose here is for the patient to decide whether or not to give consent. That is, after all the information is provided, no matter how much indication (necessity) there is, a patient who is competent to give consent may refuse treatment. The right to refuse treatment should not be confused with euthanasia. Although euthanasia is prohibited in our legal system, the patient's refusal of treatment is accepted as a right. In other words, the patient cannot demand a procedure that will definitively lead to their death, but they are free to refuse treatment when they are in a condition that is treatable or at least where a treatment attempt can be made. In cases where it is not possible to obtain consent, the physician's priority is to apply the treatment that is appropriate to medical rules and the duty of care. This is a procedure that develops with the acceptance of the patient's presumed consent in situations such as the patient being brought to the institution while unconscious or losing consciousness before consent could be obtained.

Indication and the physician's duty of care are elements aimed at ensuring that a medical intervention is truly necessary and applied as required. Because performing tests and treatments on a patient when there is no necessity is contrary to the patient's bodily integrity, and it is also possible that a health problem may develop due to these interventions. The duty of care is also a duty sought at every stage of the intervention and plays a role in determining the necessity of the relevant intervention at this stage.

MALPRACTICE

In a complaint directed at a physician or hospital, after the lawfulness of the medical intervention is examined, an investigation begins into whether there was an application error in that intervention. It is not a requirement for a lawful intervention to exist for malpractice to occur; a medical error can also be found in an intervention that does not carry the element of lawfulness. However, in this case, since the intervention was unlawful from the beginning, there is no need to make a determination regarding the existence of an error.

Malpractice can occur at various stages. For example, it is possible for an error to be made during the informing process, the diagnostic process, treatment applications, post-treatment, or in the organization of all these. An error that occurs in informing the patient should not be confused with the result of the unlawfulness of the intervention. While unlawfulness stems from a deficiency in the subject, procedure, or person regarding information, malpractice stems from this information not being correct in terms of content. Application errors in the diagnosis, treatment, and post-treatment processes are the most common types of malpractice. In these, there is a truly medical act that the physician or authorized healthcare professional performed incorrectly. Incorrect use of medication in injections, incorrect adjustment of medication dosage, and failure to perform a surgical procedure as required are just a few examples that can be given. Organizational defect is a type of malpractice that mostly gives rise to the liability of the hospital or the relevant healthcare institution. Since health services have a public nature, whether they are private or public institutions, they have an obligation to ensure a standard in the medical sense; in fact, the scope of this obligation is broader in private institutions. This obligation, of course, does not include providing a guarantee regarding the result, but it expresses a duty of care to avoid organizational errors. The provision, maintenance, and renovation of at least the minimum level of medical devices that should be available in hospitals; the arrangement of duty rosters for on-duty physicians and auxiliary personnel in a way that is consistent with human rights; and ensuring sufficient examination time for patients in the implementation of the appointment system are within the scope of the organization of health services.

COMPLICATION

Complications refer to inevitable harmful results that cannot be prevented in advance despite the physician acting in accordance with the requirements of medical science with all their knowledge and equipment and taking all kinds of precautions, as well as risky situations that are accepted/permitted in cases where treatment is necessary. As can be seen, a complication has two basic elements: unpredictability and unpreventability. However, for a complication to be kept separate from malpractice and not to give rise to liability for the person performing the intervention, the negative result on the patient must not stem from a lack of knowledge, skill, or organization.

Although it is possible to classify them as complications, some complications can actually constitute malpractice. These are classified as complications that are foreseeable and for which it is possible or impossible to take precautions to prevent them from occurring, complications that are not noticed, and complications that are not managed well.

Expert witnesses are consulted to distinguish between malpractice and complications or to diagnose whether a complication is actually malpractice. Expert witnesses conduct an examination as panels consisting of one or more physicians from the relevant specialty fields and reach a conclusion. Apart from this, the parties are free to seek expert opinion on the procedure under investigation, but courts are not bound by either expert opinion or expert witness reports and tend to base their judgments on the expert witness reports they request themselves in terms of credibility. These expert panels consist of physicians serving in the Council of Forensic Medicine, the High Health Council, or university hospitals, taking into account workload and regional conditions.

WHITE CODE

In order to protect healthcare personnel from harm that may occur during the provision of health services, the opportunity to make a direct report has been introduced in our country via the website www.beyazkod.saglik.gov.tr or the 113 call center. Accordingly, upon the request of the personnel or their legal heirs, legal assistance is provided by the Ministry of Health and its affiliated institutions for crimes committed against personnel during the provision of health services or due to these duties, and the procedures and principles of this assistance are determined by regulation. Case reports to the white code system are open to all public and private health institutions; that is, there is no difference between the healthcare provider being a public servant or a private hospital physician. In fact, personnel working in private health institutions and organizations are considered public servants in the application of the Turkish Penal Code regarding crimes committed against them in connection with this duty.

The point to be considered when reporting a case to the white code system is that the relevant case must constitute a crime. Making a case report in the face of an act that remains at the level of a tort or is only suspected of occurring will result in occupying judicial authorities and may constitute a crime under Article 271 of the Turkish Penal Code if the conditions are met.

Those employed through service procurement; interns and residents; acts occurring between healthcare workers that do not stem from a service-providing and service-receiving relationship; acts stemming from mobbing cases that manifest in the form of psychological violence, pressure, siege, harassment, humiliation, threats, and similar ways systematically by abusing existing power or position among those working in the health institution; acts that stem from personal issues and cannot be linked to the service, even if they occurred while the personnel was providing service; those whose duty has ended or has been terminated among those within the scope of personnel to whom legal assistance will be provided; and those who, despite requesting legal assistance, make the follow-up of the case impossible by not providing the necessary information and documents regarding the event that occurred are outside the scope of the legal assistance provided by the white code. Furthermore, in addition to the legal assistance provided due to the white code, the legal assistance support ends for a healthcare worker who represents themselves with a private attorney or who notifies that they have waived their complaint.

News Source: 12punto