The Lawsuit To Be Filed By The Patient Against The Hospital Will Be Heard In The Consumer Court
13th Civil Chamber 2016/18107 E. , 2018/3804 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial of the compensation lawsuit between the parties, the judgement on the dismissal of the lawsuit for the reasons written in the judgement was appealed by the plaintiffs’ lawyer within the time limit, and the file was examined and discussed.
DECISION
The plaintiffs’ attorney stated that his client … was examined by the other defendant doctor in the hospital of the defendant company due to facial paralysis, that he started treatment to use one of the cortisone-containing drugs intensively as a result of the examination, that his discomfort increased afterwards, that he was treated in different hospitals, … In the pathology report taken at Ortadoğu Hospital, it was understood that the use of cortisone medication caused the right foot ring bone head to melt and the right foot ring bone was resuscitated by surgery, and in the surgery performed at …… Başkent Hospital, the left foot ring bone was resuscitated, claiming that the defendants were at fault, 1. 000,00 TL pecuniary compensation and 100.000,00 TL non-pecuniary compensation from the defendants severally.
The defendants rejected the lawsuit.
The court decided to dismiss the lawsuit due to statute of limitations; the judgement was appealed by the plaintiffs’ attorney.
1-According to Article 3 of the Law No. 6502 on the Protection of Consumers, consumer refers to a natural or legal person acting for commercial or non-professional purposes, and consumer transaction refers to all kinds of contracts and legal transactions, including contracts of work, carriage, brokerage, insurance, proxy, banking and similar contracts, established between consumers and natural or legal persons, including public legal entities, acting for commercial or professional purposes or acting on their behalf or account in the goods or services markets.
Article 73 of the Law No. 6502 stipulates that all disputes related to the implementation of this Law shall be heard by the consumer courts.
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The mere fact that a legal transaction is regulated in the Law No. 6502 alone does not require that the dispute arising from that transaction be heard by the consumer court. In order for a legal transaction to be accepted to be within the scope of Law No. 6502, one of the parties must be a consumer.
In the concrete case, the plaintiffs filed the present lawsuit claiming that they suffered material and moral damages due to the damages caused by the medication used for treatment as a result of the examination performed by the other defendant doctor working in the defendant hospital. The relationship between the plaintiff and the defendant is in the nature of an agency contract, and the unchanged practice of our office is in this direction. The power of attorney contract is included within the scope of the law numbered 6502, which entered into force on 28.5.2014, and in cases filed before 28.5.2014, the courts in charge at the time of filing are in charge.
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As a matter of fact, this issue has been resolved by the provisional article 1 of the law numbered 6502. Regulations on jurisdiction are related to public order and are observed ex officio at every stage of the proceedings, even if the parties do not assert them. There is no vested right in matters related to the duty. The court, considering that the lawsuit was filed on 14.4.2015 after the entry into force of the Law No. 6502, and in this context, the court in charge of the resolution of the dispute is the Consumer Court, the decision to give a decision of non-jurisdiction to the Consumer Courts, while the decision to give a written decision is contrary to the procedure and the law and requires reversal.
2-According to the reason for reversal, it is not necessary to examine the other appellate objections of the plaintiffs for the time being.
CONCLUSION:
For the reasons explained in subparagraph (1) above, the judgement appealed is DISMISSED, for the reasons explained in subparagraph (2) above, it is not necessary to examine the other appellate objections of the plaintiffs for the time being, the prepaid fee of 29,20 TL shall be refunded to the plaintiffs upon request, and it was unanimously decided on 29/03/2018, with the decision correction path open within 15 days from the notification in accordance with Article 440/I of the HUMK.
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