Breast Aesthetics Malpractice Cases in Turkey

Turkey has risen to an important position in the field of aesthetic tourism worldwide in recent years. Particularly breast aesthetic surgeries are among the procedures frequently preferred by both domestic and foreign patients. However, with this increase, malpractice lawsuits have inevitably increased as well.

Breast aesthetic surgeries are interventions that prioritize aesthetic concerns, unlike other medical applications. This situation significantly affects both the scope of legal responsibility and patient expectations. So, what legal processes are implemented when a problem occurs in breast aesthetic surgeries in Turkey, and what rights do patients have?

 

Definition and Importance of the Malpractice Concept

Malpractice, also known as medical application error, means the failure to show the necessary care and attention according to the standards of medical science and experiences due to lack of knowledge, skill and experience. This definition carries special importance for breast aesthetic surgeries.

Point to note: Not every undesired outcome in breast aesthetic surgeries is malpractice. Making the correct distinction between complication and malpractice is critically important. Complication is a situation that cannot be foreseen in advance regarding the medical application to be performed, or cannot be prevented even if foreseen.

 

Legal Framework for Breast Aesthetic Surgeries in Turkey

Application of Work Contract Provisions

Differences Between Agency Contract and Work Contract

Therapeutic medical applications are generally evaluated within the scope of agency contract. The physician undertakes to do their best for the patient’s healing, but does not guarantee the outcome. For example, a doctor performing heart surgery is obliged to perform the operation in accordance with the requirements of medical science, but cannot guarantee that the patient will definitely recover.

In breast aesthetic surgeries, work contract provisions apply. In this case, the physician promises the patient a specific aesthetic result. According to the established jurisprudence of the Turkish Court of Cassation:

“Due to the nature of the work contract, the contractor guarantees the result. Since the plaintiff applied to the defendant for aesthetic purposes for breast enlargement and eyelid surgery, it is clear that providing a beautiful appearance suitable for the desired and agreed purpose by performing aesthetic surgery is the subject of the work contract between the parties.”

Legal Consequences of Result Promise

The existence of result commitment in work contract expands the scope of responsibility in breast aesthetic surgeries. The physician must not only perform the surgery in accordance with medical rules, but also realize the promised aesthetic result.

Point to note: This situation means that the physician’s responsibility may arise even if complications develop. The Turkish Court of Cassation expressed this matter as follows in one of its decisions:

“Although the plaintiff’s nasal deformity is medically defined as a complication, due to the nature of the work contract guaranteeing the result, it was understood that the nasal deformity needed to be corrected with a second operation… therefore, the rejection of the material compensation claim was not correct.”

 

Distinction Between Complication vs Malpractice

Definition of Complication

Complication refers to undesired situations that cannot be foreseen in advance or cannot be prevented even if foreseen after a medical intervention. Under normal circumstances, the physician is not held responsible if complications develop. However, the situation is different in breast aesthetic surgeries.

Responsibility in Case of Complications in Breast Aesthetics

Since work contract is applied in breast aesthetic surgeries, the physician can be held responsible if the result is not achieved even if complications develop. However, in this case too, disclosure obligation and complication management are critically important.

The physician must inform the patient in advance that complications may develop and minimize their responsibility with proper management when complications occur.

 

Types of Breast Aesthetics and Special Legal Situations

Breast Augmentation Surgery

Silicone Prosthesis Applications

Breast augmentation surgeries are among the most common aesthetic applications performed using silicone prostheses. The most frequently encountered problems in these surgeries include prosthesis displacement, asymmetry and capsular contracture.

Point to note: Which brand of prosthesis is used, the position where it is placed, and the patient’s anatomical features are important evaluation criteria in malpractice cases.

Asymmetry and Displacement Problems

Asymmetry problems are frequently experienced in breast augmentation surgeries. However, not every asymmetry means malpractice. According to the Turkish Court of Cassation’s evaluation:

“The slight asymmetry between both breasts is an expected complication after breast augmentation operation, and the lateral displacement in both breasts is also characterized as a complication that can occur despite all care due to prosthesis displacement, which cannot be attributed to any medical negligence or fault”

However, the situation is different in cases of excessive asymmetry or complete displacement of the prosthesis.

Breast Augmentation Problems in Court of Cassation Decisions

The Court of Cassation clearly accepts result responsibility in breast augmentation surgeries. An important decision includes the following statements:

“When the concrete case is evaluated, it is understood that the aesthetic intervention performed on the plaintiff did not result in favor of the plaintiff as the employer, and the phenomenon of the breast standing more upright and aesthetically smoother as initially intended was not realized.”

 

Breast Reduction Surgery

Nipple Necrosis Problems

One of the most serious complications in breast reduction surgeries is nipple necrosis. This condition occurs as a result of impaired blood circulation of the nipple and is mostly irreversible.

Point to note: When nipple necrosis develops, the physician must quickly detect this condition and provide appropriate intervention. Late intervention is a factor that increases the physician’s responsibility.

Shape Deformities and Asymmetry

Shape deformities and major asymmetries are the most common causes of malpractice lawsuits in breast reduction surgeries. The patient’s preoperative anatomical features are an important evaluation criterion in this regard.

Precedent Court of Cassation Decisions

In breast reduction surgeries, the Court of Cassation shows a sensitive approach regarding lack of disclosure:

“The contractor must create the work in a way that will benefit the employer due to the obligation of loyalty and care… Therefore, it is a necessity according to Article 357 of the Code of Obligations that the defendant inform the patient about the results and complications that may possibly occur before the operation.”

 

Breast Lift (Mastopexy) Surgery

Special Risk Factors

Breast lift surgeries are interventions that require special evaluation in terms of age factor and skin elasticity. Wound healing problems are more common in elderly patients.

Expectation Management and Result Responsibility

Expectation management is critically important in breast lift surgeries. The physician should create realistic expectations considering the patient’s age and skin quality.

 

Conditions of Breast Aesthetics Malpractice Lawsuits

Fault Element

Violation of Medical Standards

Fault in breast aesthetics malpractice cases means the physician’s behavior contrary to medical standards. However, not only the surgical technique but also preoperative planning, patient selection and postoperative follow-up are evaluated here.

According to Article 4 of the European Bioethics Convention: “Any intervention in the field of health must be carried out in accordance with relevant professional obligations and standards.”

Violation of Care Obligation

In work contract, the physician is under loyalty and care obligation. This obligation covers not only the surgery period but the entire process. According to the Court of Cassation:

“In determining the contractor’s responsibility arising from the care obligation, the behavior in accordance with professional and technical rules that a prudent contractor undertaking similar works should show is taken as basis.”

 

Damage Element

Types of Material Damage

Material damage in breast aesthetics malpractice cases generally consists of the following items:

Surgery fee: Refund of the fee paid for the failed surgery is requested.

Corrective surgery costs: The cost of new surgeries to be performed to eliminate complications.

Disability compensation: Loss of income during the period of inability to work after surgery.

Health expenses: Medication, control examinations and physical therapy costs.

Moral Damage and Its Calculation

Moral damage has special importance in breast aesthetic surgeries. Because these surgeries directly affect the person’s self-perception and self-confidence.

Point to note: The amount of moral compensation is determined by objective criteria. The patient’s subjective dissatisfaction alone is not sufficient.

 

Causal Link

Proof of Causality Relationship

Causal link in breast aesthetics cases is the causality relationship between the physician’s behavior and the resulting damage. Expert examination is usually inevitable to establish this link.

Intervening Factors

The patient’s own behaviors can also affect the causal link. Particularly situations such as smoking, not coming to check-ups and not following doctor’s advice can reduce the physician’s responsibility.

 

Informed Consent and Special Situations in Breast Aesthetics

Scope of Disclosure Obligation

General Disclosure Requirements

Informed consent is one of the most critical legal requirements of breast aesthetic surgeries. The physician must inform the patient in detail before surgery.

According to Article 5 of the European Bioethics Convention: “The relevant person will be given appropriate information in advance about the purpose and nature of the intervention and its consequences and dangers.”

Risk Factors Specific to Breast Aesthetics

Disclosure in breast aesthetic surgeries should include discussion of aesthetic expectations in addition to general risks. The physician should inform the patient about the following topics:

• The success rate and duration of the surgery.
• Complication risks and management.
• The possibility that aesthetic results may not meet the patient’s expectations.
• Repeat surgery necessity possibility.

 

Legal Validity of Consent Forms

Adequate Enlightenment Criteria

Standard consent forms are often not considered sufficient. The Court of Cassation expressed this situation in one of its decisions as follows:

“The mentioned document does not contain any explanation regarding the success chance and duration of the proposed treatment method, the risks this method carries for the patient’s health, its medical results and possible complications. In the concrete case, there is a consent form arranged with general abstract statements.”

Consequences of Insufficient Enlightenment

Insufficient enlightenment is one of the most important factors that increase the physician’s responsibility. Even a technically correctly performed surgery can create compensation liability due to insufficient enlightenment.

 

Enlightenment Deficiency in Court of Cassation Decisions

The Court of Cassation is very sensitive about enlightenment deficiency:

“This consent must be informed consent as emphasized above… it is established that it cannot be proven with existing documents that the patient was enlightened in a concrete and sufficient manner regarding possible risks and complications.”

 

Special Situations in Breast Aesthetics Malpractice Cases

Importance of Patient Profile

Smoking and Complication Risk

Smoking is one of the most important risk factors in breast aesthetic surgeries. The effect of nicotine on vascular structure particularly affects wound healing negatively.

Point to be noted: The physician must warn the smoking patient before surgery and must document this warning in writing. Otherwise, when complications develop, the responsibility can be entirely attributed to the physician.

Diabetes and Healing Problems

Diabetes mellitus is a condition that requires special attention in breast aesthetic surgeries. In patients with diabetes, infection risk and wound healing problems are seen more frequently.

Age Factor and Expectations

Advanced age can lead to unrealistic expectations, especially in breast lift surgeries. The physician should perform more careful expectation management in elderly patients.

 

Complication Management

Necessity of Intervention After Complications

When complications develop in breast aesthetic surgeries, the physician’s rapid and correct intervention plays a critical role in reducing responsibility. Delayed intervention is an important factor that increases the physician’s responsibility.

Second and Third Surgery Necessity

Revision surgeries constitute an important dimension of breast aesthetic malpractice cases. The physician may be obligated to perform free correction if the first surgery fails.

 

Repeat Surgery Situations

Loss of Trust and Different Doctor Preference

Patients who experience problems in the first surgery often prefer to go to a different doctor. The Court of Cassation’s approach on this matter is as follows:

“Since it cannot be expected that the plaintiff whose trust has been shaken would go to the defendant for the second operation, it would not be correct to make a decision with insufficient examination instead of calculating and deciding on the expenses the plaintiff made for the aesthetic operation related to the nose.”

Responsibility for Covering Costs

Expenses for going to another doctor can also fall under the responsibility of the first physician. However, in this case, attention should be paid to the reasonable expenses criterion.

 

Types of Compensation and Calculation Methods

Material Compensation

Refund of Surgery Fee

Failed surgery fee is the most basic item of material compensation. If the physician cannot achieve the promised result, they may be obligated to refund the fee received.

Corrective Surgery Expenses

The cost of new surgeries to be performed to eliminate complications is also within the scope of compensation. These expenses must be reasonable.

Work Incapacity Compensation

Income loss during the period of inability to work after surgery can also be compensated. However, this period must be medically necessary.

 

Moral Compensation

Assessment Criteria

The amount of moral compensation is left to the judge’s discretion. However, this discretion is not random. The following criteria are considered:

• Severity and permanence of the damage.
• Patient’s social and economic status.
• Physician’s degree of fault.
• Level of pain, grief and suffering.

Special Situations in Breast Aesthetics

In breast aesthetic surgeries, moral compensation can be assessed at higher amounts, especially for female patients. Because these surgeries are directly related to sexual identity and self-confidence.

Court of Cassation’s Assessment Tendencies

The Court of Cassation prioritizes the characteristics of the concrete case in moral compensation assessment:

“The amount to be assessed should be as much as necessary to reach the effect of the satisfaction feeling desired to be obtained in the existing situation… The judge should consider the particularity of the concrete case, the economic and social situation of the victim, the purchasing power of money, the grief and suffering felt and to be felt in the future when making the determination.”

 

 

Court Process and Procedural Issues

Competent and Authorized Court

Consumer Courts for Private Hospitals

Cases to be filed after breast aesthetic surgeries performed in private hospitals are under the jurisdiction of Consumer Courts. The consumer-friendly approach of these courts can produce results in favor of patients.

Patients are in an advantageous position regarding authorized courts. All of the following courts are authorized:

• The court where the defendant hospital is located.
• The patient’s place of residence court (very important advantage).
• The court where the contract is performed.

Administrative Courts for State Hospitals

Administrative Courts are competent for breast aesthetic surgeries performed in state hospitals. In these cases, a full remedy case is filed and the process works differently.

 

Expert Examination

Necessity of Plastic Surgery Specialist

In breast aesthetic malpractice cases, a report must be obtained from an expert who is definitely a plastic surgery specialist. The Court of Cassation is very strict on this matter:

“In the Forensic Medicine Institution report dated 24.12.2014 that was based on the judgment… Since there is no Plastic and Reconstructive Surgery Specialist Member in the Boards… It is seen that the other physicians who prepared the report are not specialists in the subject.”

Importance of Expert Report

Expert report is the most critical evidence in breast aesthetic cases. The following issues must be evaluated in the report:

• Compliance of the surgery with medical rules.
• Whether it is a complication or malpractice.
• Whether the enlightenment obligation has been fulfilled.
• Correctness of complication management.

Consequences of Insufficient Reports

Insufficient expert reports cause the decision to be overturned. The Court of Cassation made the following evaluation on this matter:

“For the court to make an evaluation according to Article 475 of the TBK, it is necessary to obtain a report that will form the basis of the judgment from an expert committee consisting of Plastic and Reconstructive Surgery specialists selected from universities… it was not deemed correct to decide to reject the case in line with an insufficient report.”

 

Mandatory Mediation

Mediation as a Lawsuit Condition

In private hospital breast aesthetic malpractice cases, it is necessary to go through the mandatory mediation process before filing a lawsuit. If this process is skipped, the case is rejected due to lack of lawsuit conditions.

Process and Application

The mediation process lasts 6 weeks. During this process, the parties can reach an agreement. Even if no agreement is reached, completing the process is sufficient to fulfill the lawsuit condition.

Point to be noted: Discussions made during the mediation process are confidential and cannot be used as evidence in the subsequent case.

 

Court of Cassation Jurisprudence and Precedent Decisions

Decisions Related to Breast Augmentation Surgeries

Court of Cassation 15th CD 2018/182 E., 2019/930 K. Decision

This decision is an important jurisprudence that clearly reveals result responsibility in breast augmentation surgeries. The following basic principles were adopted in the decision:

“There is no dispute that there is a work contract regulated in Articles 470 et seq. of the TBK No. 6098, which was in force as of the date the contract was established between the parties. It was decided to perform aesthetic interventions on the plaintiff with the contract.”

The decision clearly states that the work contract will definitely be applied in breast aesthetic surgeries and that the physician guarantees the result:

“Due to the nature of the work contract, the contractor guarantees the result… it is clear that providing a beautiful appearance suitable for the desired and decided purpose by performing aesthetic surgery is the subject of the work contract between the parties.”

Prosthesis Displacement and Asymmetry Problems

The Court of Cassation bases objective criteria in prosthesis displacement and asymmetry problems. While small asymmetries are evaluated as acceptable complications, the physician is held responsible in cases of large displacements and failure to meet aesthetic expectations.

The critical evaluation was made as follows:

“When the concrete case is evaluated, it is understood that the aesthetic intervention performed on the plaintiff did not yield results in favor of the plaintiff as the employer, and the phenomenon of the breast standing more aesthetically neat and upright as initially intended was not realized.”

 

Decisions Related to Breast Reduction Surgeries

Court of Cassation 3rd CD Decisions

The Court of Cassation 3rd Civil Chamber displays a sensitive approach regarding enlightenment deficiency in breast reduction surgeries. Especially in nipple necrosis cases, it is critically important that the physician has explained this risk beforehand.

In one decision, the following evaluation was made:

“In the concrete case; the matters claimed in the petition… are matters within the scope of the contractor’s general notification obligation. Therefore, it is an obligation according to Article 357 of the BK for the defendant to inform his patient about the results and complications that may possibly occur before the surgery.”

Nipple Necrosis Cases

Nipple necrosis is one of the most serious complications of breast reduction surgeries. The Court of Cassation emphasizes that complication management is very important in this situation.
The following principles have been adopted in an important decision:

“The work is the result achieved by the contractor requiring art and skill, with the expenditure of labor. The contractor’s creation of the work in a way that will benefit the employer and without causing any harm to them covers both the loyalty and care obligations of the defendant contractor.”

Point to be noted: When nipple necrosis develops, the physician’s rapid recognition of this condition and appropriate intervention plays a critical role in reducing responsibility. Late recognition or wrong management can result in the physician’s full responsibility.

In another decision of the Supreme Court, the following point was emphasized:

“After this surgery, the work has already become defective due to the plaintiff’s nipples not adhering to the transplanted location.”

This approach demonstrates how strictly result responsibility is applied. Even a technically correctly performed surgery can hold the physician responsible when the result is not achieved.

 

Photo Permission and Privacy Violation Decisions

A special legal problem in breast aesthetic surgeries is the unauthorized use of photographs taken before surgery. The Supreme Court 4th Civil Chamber has addressed this issue in an important decision:

“A defendant who is a physician, not evaluating the photographs obtained due to his profession within the scope of professional secrecy and not keeping them confidential, and presenting them as evidence in another case without obtaining the plaintiff’s permission, constitutes a violation of the plaintiff’s privacy and an attack on his personality rights.”

This decision clearly demonstrates how important patient privacy is and physicians’ obligation to protect professional secrecy.

 

Decisions on Expert Report Requirements

The Supreme Court does not accept insufficient expert reports in breast aesthetic cases. The clearest approach on this matter is expressed as follows:

“Since whether the aesthetic surgery was performed in accordance with medical requirements, whether it achieved its purpose, whether a temporary or permanent discomfort occurred in the plaintiff’s surgical area due to the surgery is a technical matter, it is necessary to obtain a report from a committee consisting of experts in the field and evaluate the case according to the report result.”

Point to be noted: There must be a plastic surgery specialist in the expert committee. Reports taken without this are considered insufficient and the decision is overturned.

 

Current Approaches on Information and Consent

In the Supreme Court’s recent decisions, the information standard is gradually increasing. Consent forms prepared with general statements are no longer considered sufficient:

“The mentioned document does not contain any explanation about the success rate and duration of the recommended treatment method, the risks this method poses to the patient’s health, its medical consequences and possible complications. In the concrete case, there is a consent form prepared with general abstract statements.”

This approach shows that physicians need to provide much more detailed information. Standard forms are no longer sufficient, personalized information is required.

In conclusion, Supreme Court jurisprudence shows a development in favor of patients in breast aesthetic malpractice cases. The strict application of work contract logic, rising information standards and the inclusion of complication management in responsibility puts patients in a stronger legal position.

However, this situation also requires being more careful for physicians. Detailed information, appropriate patient selection, complication management and continuous follow-up have now become inevitable elements of breast aesthetic practice.

 

Soylu Law Office

Experienced in problems and malpractice lawsuits in breast aesthetic surgeries in Turkey, Soylu Law Office operates based in Istanbul. We also have a cooperation network with lawyer colleagues operating in tourist cities such as Antalya, Muğla and Aydın.

Our office provides services in protecting patient rights in medical malpractice cases and effective management of compensation processes. Our team, which is experienced in working with international cases and foreign clients, also provides support in legal problems experienced by foreign patients coming to Turkey, especially within the scope of aesthetic tourism.

Due to the complex nature of breast aesthetic malpractice cases and the special application of work contract provisions, expert legal guidance is of critical importance.

 

For more assistance or consultation on this matter, you can contact us.