Doctors’ Unauthorized Management of Affairs in Turkish Medical Law

In Turkish medical law, the concept of doctors’ unauthorized management of affairs is pivotal in defining the legal parameters of medical interventions, particularly in emergency situations. This principle, grounded in the Turkish Code of Obligations, provides a framework for understanding doctors’ responsibilities when acting without explicit patient consent. The following article explores various aspects of this legal concept, including its application in private and public hospitals, the distinction between genuine and non-genuine unauthorized management, and the implications for both doctors and patients in critical medical scenarios.

Doctors’ Unauthorized Management of Affairs

What is unauthorized management of affairs?

Unauthorized management of affairs is when a person (the manager) performs a task for the benefit and on behalf of another person (the principal) without their consent.

In which situations does a doctor’s unauthorized management of affairs occur?

A doctor’s unauthorized management of affairs usually occurs in situations where there is no contractual relationship between the doctor and the patient. For example, if the doctor performs a medical intervention due to necessity to save the patient’s life or prevent serious harm, or if a surgery that was started with the patient’s consent was expanded beyond the given consent, in this case, the doctor’s actions are considered as real unauthorized management of affairs.

What is the difference between real and non-real unauthorized management of affairs?

Real unauthorized management of affairs is when the manager acts in the interest of the principal and in accordance with their presumed will. For example, a doctor who intervenes with an unconscious patient in an emergency situation is in the position of a real unauthorized manager.

Non-real unauthorized management of affairs is when the manager conducts another person’s business for their own benefit or for the benefit of a third party. In this case, there is a violation of the principal’s legal sphere or unlawful acquisition of benefit as a result of business usurpation.

What are the obligations of private hospitals in emergency situations?

Private hospitals are obliged to intervene immediately when individuals in need of emergency treatment apply after a sudden event or accident. The particularly important point to note here is that it is not important whether the emergency patient has health insurance or the ability to pay for their treatment. The hospital cannot refuse to provide the necessary emergency medical intervention due to lack of adequate equipment and personnel or lack of health insurance.

Who is responsible for unauthorized management of affairs in private hospitals?

The responsibility for unauthorized management of affairs in private hospitals belongs to the doctor. Since there is no classic service contract between the hospital and the doctor, it is not possible for the institution of unauthorized management of affairs to arise on the hospital specifically for diagnosis and treatment services.

Hospital responsibility is evaluated within the framework of responsibility for the actions of auxiliary persons according to TBK (Turkish Code of Obligations) art. 116 in terms of real unauthorized management of affairs, or in cases of tort or non-real unauthorized management of affairs, within the framework of employer’s responsibility according to TBK art. 66.

In which situations does the doctor’s responsibility for unauthorized management of affairs arise?

The doctor’s responsibility for unauthorized management of affairs arises when they intervene without the informed consent of the patient or their legal representative. For example, if a patient has been seriously injured in a traffic accident and is not conscious, the doctor’s medical intervention is evaluated within the scope of unauthorized management of affairs. In a Supreme Court decision, it was stated that “(…) the doctor’s medical intervention due to necessity to save the patient’s life or prevent serious harm (…)” is considered as real unauthorized management of affairs.

How is the legal situation evaluated in case of expansion of surgery?

The situation of expanding the surgery occurs in cases where unforeseen circumstances arise that could not be explained to the patient beforehand. In this case, the doctor’s intervention is evaluated within the scope of real permissible unauthorized management of affairs.

Some conditions are required for the expansion of surgery:

1. Emergence of a vital danger
2. A situation where consent cannot be sought between the expansion of the intervention and obtaining consent due to the magnitude of the danger
3. No removal of organs and tissues from the patient’s body except in cases of life-threatening danger

The important point to note is that if the expansion of the surgery is seen as a possibility before the surgery, consent should be obtained before the surgery as a rule. In this case, the provisions of unauthorized management of affairs are not applied.

 

How is the doctor’s responsibility determined in cases of non-real unauthorized management of affairs?

In cases of non-real unauthorized management of affairs where the doctor’s actions are completely contrary to the patient’s consent and the patient’s consent is also unlawful, the doctor is responsible even for unexpected circumstances. However, if the doctor can prove that the unexpected outcome would have occurred even if they had not performed that action, the doctor is relieved of responsibility.

Can a contract for exemption from liability be made in hospital management?

It is theoretically possible for the hospital to make an exemption from liability contract with the patient. However, according to TBK art. 116 para. 3, contracts in which the hospital states that they will not be responsible for damages arising from the actions of doctors who are in the position of auxiliary persons are absolutely null and void. The point to note is that such contracts can also be subject to unfair terms control under consumer law and general terms and conditions control.

 

How is the doctor’s responsibility for unauthorized management of affairs evaluated in public hospitals?

The doctor’s responsibility for unauthorized management of affairs in public hospitals is evaluated differently from private hospitals. A public law relationship arises between the public hospital and the patient being treated. Therefore, administrative law rules are applied as a rule for damages arising from medical intervention.

However, a change has been observed in the approach of the Supreme Court in recent years. In some decisions of the Supreme Court General Assembly of Civil Chambers, a distinction is made between service fault and personal fault. According to these decisions, it is accepted that lawsuits can be filed directly in civil courts against doctors for faulty actions that can easily be separated from duty and fall outside the scope of duty and for “personal faults of the civil servant or public official where the connection with public service is severed”.

The point to note is that the responsibility of doctors working in public hospitals for unauthorized management of affairs can be evaluated similarly to doctors working in private hospitals. However, the nature and scope of public service should be evaluated separately in each concrete case.

In a Supreme Court decision, it was stated that “(…) in case of personal fault of the public official that can be separated from his duty, a lawsuit can be filed not against the administration but directly against the public official in judicial courts (…)”, indicating that doctors working in public hospitals can be held directly responsible in some situations.

 

How is the responsibility of a doctor present at the scene determined in emergency situations?

The responsibility of a doctor present at the scene in emergency situations is generally evaluated within the framework of unauthorized management of affairs provisions. The Turkish Code of Obligations (TBK) art. 526-531, which regulates unauthorized management of affairs, forms the basic legal framework for such situations.

The doctor, while intervening in an emergency situation, is obliged to act in the interest of the principal (patient) and in accordance with their presumed will according to TBK art. 527.

An important point to note is that according to TBK art. 527/2, the doctor’s responsibility for interventions in emergency situations is evaluated more leniently.

 

Article 527 – The unauthorized manager is responsible for any negligence. However, if the manager performed this work to eliminate the damage or danger of damage faced by the principal, their responsibility is evaluated more leniently.

If the manager has performed this work despite the explicit or implicit prohibition of the principal, and if the principal’s prohibition is not contrary to law or morality, they are also responsible for unexpected circumstances. However, if the manager can prove that this damage would have occurred as a result of unexpected circumstances even if they had not performed that work, they are relieved of responsibility.

 

 

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