Service Failure in Doctor Error (Malpractice) Compensation Case
In general terms, full judgement 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 event, 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 carries out; 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 perfect 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, organisation 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, service defect is a defect that has an anonymous and independent character, which has become objective by moving away from its meaning in private law. Liability for defects in service constitutes the direct and primary cause of the administration’s liability.
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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 defect.
In the case; it is undisputed that three broken injector tip shaped metals were removed from the body of the patient operated on by the personnel of the defendant administration, and that the patient did not undergo another operation before and after a certain period of time. It is a concrete fact that these facts are not denied in the Forensic Medicine report and that there is no other reason and possibility to explain the presence of three metal objects removed from the body of a patient three months after the operation and 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 operation area, considering that the defendant administration is responsible for the operation team and the smooth execution of the operation, it has been concluded that the defendant administration did not fulfil 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, but there is no legal accuracy in the court decision to reject the case on the grounds that there is no service defect. (15th Chamber of the Council of State – Decision: 2016/4029).
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