Court Responsible For Disputes Arising From Diagnosis And Treatment Services
Supreme Court of Appeals of the Republic of Turkey
13th Civil Chamber Case No: 2012/21184
Decision No: 2012/20509
Date of Decision: 28.09.2012
CASE FOR CANCELLATION OF OBJECTION – WHEN THE SPECIFIC FACTS ARE ASSESSED
THE DISPUTE BETWEEN THE PARTIES ARISES FROM DIAGNOSIS AND TREATMENT
– IT IS UNDERSTOOD THAT THE CONSUMER AND THE DEFENDANT ARE THE SELLER AS DEFINED BY LAW
– THE NECESSITY OF REVERSING THE JUDGMENT
SUMMARY: For a legal transaction to be deemed covered by Law No. 4077, it must be a legal transaction related to the sale of goods and services between parties defined within the scope of the law’s purpose.
SUMMARY: For a legal transaction to be accepted as falling under Law No. 4077, there must be a legal transaction
between the parties defined within the scope of the law regarding the sale of goods and services.
The relevant article of Law No. 4077 stipulates that any dispute regarding the application of this law shall be heard in consumer courts. When the specific case is evaluated, the dispute between the parties arises from diagnosis and treatment services, and it is understood that the plaintiffs are consumers (recipients of treatment fees) as defined in the Law, and the defendant is the seller (service provider). In this case, the Consumer Court, not the General Court, has jurisdiction to hear the case.
The provisions regarding jurisdiction are related to public order and are taken into account ex officio at every stage of the proceedings, even if the parties do not raise them. Provisions regarding jurisdiction
relate to public order and are considered ex officio at every stage of the proceedings, even if the parties do not raise the issue.
There is no acquired right in matters of jurisdiction. Therefore, the court must render a decision of lack of jurisdiction.
(Law No. 4077, Articles 1, 2, 3, 23) (Law No. 818, Articles 41, 47)
Case: Following the trial of the case for the cancellation of the objection between the parties, the judgment rendered for the partial acceptance and partial rejection of the case for the reasons stated in the decision was appealed by the parties’ attorneys within the time limit. Upon review of the file and consideration of the matter:
Decision: The plaintiff’s attorney, the plaintiff K.I., who suffers from back pain, was admitted to the hospital belonging to the defendant company.
Decision: The plaintiffs’ attorney stated that the plaintiff K.I., due to back pain, was examined by the doctor at the hospital belonging to the defendant company, the other defendant
doctor at the defendant company’s hospital, but due to the failure to make a correct diagnosis in time
and the application of incorrect treatment, he underwent stem cell treatment and chemotherapy at another hospital, and that they suffered material and moral damage, requesting
reserved, and increased their claim to 400,000 TL in material damages with a petition for amendment.
The defendants argued for the dismissal of the case.
The court awarded 34,586.84 TL in material damages and 75,000 TL in moral damages for the plaintiff K.İ., and 25,000 TL in moral damages for the plaintiff M.İ.
The court ruled that the defendants should pay 34,586.84 TL in material damages and 75,000 TL in moral damages to the plaintiff K.İ., and 25,000 TL in moral damages to M.İ., in proportion to their fault; the parties appealed the ruling
.
1- After explaining the purpose of the law in Article 1, titled Purpose, of Law No. 4077 on Consumer Protection, as amended by Law No. 4822,
Article 2, titled Scope, contains the relevant provision. Article 3 of the law defines goods as movable property subject to trade, real estate for residential and vacation purposes, and intangible goods such as software, sound, images, and similar items prepared for use in an electronic environment.
Service refers to any activity other than the provision of goods in exchange for a fee or benefit. The seller includes real or legal persons who offer goods to consumers within the scope of their commercial or professional activities, including public legal entities. The consumer is defined as a real or legal person who acquires, uses, or benefits from a good or service for non-commercial or non-professional purposes.
Similarly, Article 3/d of the aforementioned law defines it as follows.
For a legal transaction to be considered within the scope of Law No. 4077, there must be a legal transaction related to the sale of goods and services between the parties defined above within the purpose of the law.
Article 23 of Law No. 4077 stipulates that any dispute regarding the application of this law shall be heard in consumer courts.
When the specific case is evaluated, the dispute between the parties arises from diagnosis and treatment services, and it is understood that the plaintiffs are consumers (recipients of treatment fees) as defined in the Law, and the defendant is the seller (service provider). In this case, the Consumer Court, not the General Court,
has jurisdiction to hear the case. Provisions regarding jurisdiction relate to public order and are considered ex officio at every stage of the proceedings, even if not raised by the parties. Acquired rights do not apply in matters of jurisdiction. Therefore, while the court should have ruled on lack of jurisdiction, entering into the merits of the case and rendering a judgment is contrary to procedure and law and constitutes grounds for reversal.
2- Based on the grounds for reversal, it is not deemed necessary at this time to examine the parties’ other appeals.
Conclusion: For the reasons explained in the first paragraph, the appealed decision is REVERSED; for the reasons explained in the second paragraph, there is no need to examine the parties’ other appeals; the advance appeal fees of
1.99 TL each in advance appeal fees shall be refunded to the defendants upon request, and the 21.15 TL in advance appeal fees shall be refunded to the plaintiffs upon request, was decided unanimously on 09/28/2012.