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Events
The applicants are the baby (the first applicant) and his father (the second applicant), who at the time of the events were diagnosed with a congenital disorder as a result of the esophagus not connecting with the stomach. After the operation, the first applicant was given intravenous nutritional fluid as oral nutrition was not possible. During the administration of the nutritional fluid, the first applicant’s right hand developed severe swelling and another operation was performed in the same hospital. Finally, the first applicant was operated on again in another hospital and underwent a skin graft (transplantation of tissue from one part of the body to another part of the body without any vascular or nerve connection).
A full judgement action was brought against the Ministry of Health for compensation for material and moral damages on the grounds of medical error and gross negligence in the postnatal treatment. The administrative court dismissed the case based on the expert report stating that the relevant health personnel were not at fault. Upon the application for appeal, the regional administrative court stated that the damage caused by the incident should be compensated since the necessary measures were not taken by the administration. However, it was decided to pay 50.000 TL non-pecuniary damages to the plaintiffs and to reject the other claims.
Subsequently, as a result of a personal application, the first applicant was found to be 51 per cent disabled according to a committee report issued by a university hospital.
Allegations
The applicants claimed that the right to protection of the material and moral existence of the person was violated due to the damage caused by medical negligence.
The Court’s Assessment
In the concrete case, it was determined by the court of first instance that the necessary precautions were not taken and the damages that may occur should have been prevented. According to this situation, it cannot be said that there is no inadequacy in the execution of the health service.
The issue of awarding pecuniary compensation and how to calculate the compensation is within the discretion of the courts of first instance as a matter of interpretation of the rules of law. It is not possible for the Constitutional Court to interfere with this discretion of the court of first instance unless there is a clear error of judgement or arbitrariness. However, the first applicant, who is currently unable to use his right hand effectively and it is not clear when he will be able to use it again, may have some material damages, and it is not understood why the other applicant, who is the father of the first applicant, was denied financial compensation in view of the clear determination of the service defect and some documents submitted to the case file.
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In this context, considering the acceptance and determinations of the court of first instance that the damage occurred as a result of the administration’s failure to take the necessary measures, it is clear that accepting only the claim for non-pecuniary damages is not sufficient to eliminate the consequences of the violation. As a matter of fact, although the court of first instance made a fault determination, no concrete evaluation was made in terms of the rejection of the claim for pecuniary compensation. In addition, no approach was taken to compensate the material damages in line with the constitutional requirements. Therefore, it has been assessed that the consequences of the violation have not been eliminated due to the rejection of the applicant’s requests for compensation for material damages by the court of first instance. Therefore, it has been concluded that the positive obligation of the state in terms of the right to protect and improve one’s material and moral existence has not been fulfilled under the circumstances of the concrete case.
For the reasons explained above, the Constitutional Court decided that the right to the protection of one’s material and moral existence was violated.
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