Criminal Liability of Physicians for Medical Malpractice (TPC Art. 85/89)

What is Medical Malpractice? Distinguishing Between Medical Error and Complication.

Medical Standards and Physician's Duty of Care

The medical profession, by its very nature, involves human life and requires a high degree of attention. For a medical intervention to be legally acceptable, it must be performed in accordance with the generally accepted rules of current medical science, that is, "medical standards." A physician has a "duty of care" that continues from the moment they admit a patient for treatment until the end of the recovery process. If the physician disregards these standards, fails to exercise due care, and causes harm to the patient , the physician's negligence and criminal liability arise. This series of negligent actions forms the basis of the concept of criminal liability for medical malpractice in medical law.

Legally Permissible Medical Intervention Requirements: Indication and Informed Consent

For a physical intervention not to be considered a crime, two main elements are required: medical necessity (indication) and the patient's valid consent. The patient must be informed about the treatment to be applied, the possible risks, and alternative methods in a language they can understand and must give their consent freely. At this point, the answer to the question frequently asked by citizens, " Does a surgical consent form absolve the doctor of responsibility ?", is quite clear: Simply having a printed document signed does not absolve the doctor of responsibility. If the doctor has committed an unlawful error (malpractice), the patient's signature cannot cover up this fault. Consent obtained improperly or with incomplete information becomes one of the most important pieces of evidence against the doctor in a potential informed consent criminal case .

The Fine Line Between Allowable Risk (Complication) and Medical Malpractice

The most sensitive and debated issue in medical law is the difference between complication and malpractice . Every intervention in medical science carries its own foreseeable, but sometimes unavoidable, risks. The law defines this as "permissible risk." If an undesirable outcome occurs in a patient despite the physician adhering to all standards, this is a complication, and the doctor is not penalized. However, if harm results from the physician's ignorance, inexperience, or negligence, then the permissible risk and medical error limit have been exceeded. Once this threshold is crossed, the event ceases to be a complication and falls under the category of medical negligence . So, is a doctor's error a criminal case ? If there is a deviation from the standard and suspicion of malpractice, then yes, this becomes a case that must be investigated by the judicial authorities.

Legal Definition of Misdiagnosis, Maltreatment, and Surgical Defects

Medical malpractice is not simply a technical error made on the operating table. The type of error can manifest as misdiagnosing an illness, applying incorrect treatment contrary to medical literature despite a correct diagnosis, leaving a patient unattended after the procedure, or making egregious mistakes during the operation. For example, the gauze left behind during surgery, which we often hear about, is considered a clear act of negligence and professional incompetence under the Turkish Penal Code. The situation is no different in the cases of faulty cosmetic surgery complaints, which have increased in recent years. In all these processes, as a result of the patient's physical or mental health being harmed, prosecutor investigations can be initiated against the negligent healthcare personnel for incorrect diagnosis and treatment .

What does this mean?

Every medical procedure carries a certain risk. An unexpected adverse outcome during treatment does not, in itself, constitute a crime committed by the doctor. If the doctor has acted in accordance with the rules of medical science and professional standards, and the patient has been fully informed of these risks beforehand, the resulting situation is considered a "complication" (medical risk). However, if the doctor has violated their duty of care and diligence, causing harm to the patient due to ignorance or negligence, this is then considered "malpractice" (medical error), a crime.

Criminal Liability of Physicians under the Turkish Penal Code (Articles 85 and 89 of the Turkish Penal Code)

"Intent," "Negligence," and "Conscious Negligence" in Medical Practice

In the criminal justice system, an act must, as a rule, be committed intentionally in order to be punishable; however, negligent conduct (violation of the duty of care and attention) also constitutes a crime in cases explicitly specified by law. The distinction between negligence and intent in medical intervention is a fundamental aspect of physician trials. Physicians do not act with the direct intent of causing harm to a patient while practicing their profession; therefore, a physician's criminal liability almost always arises on the basis of negligence.

Negligence is the failure to fulfill the duty of care and diligence, resulting in an unforeseeable outcome. However, if a physician, despite foreseeing a potentially negative outcome during an intervention, proceeds with the procedure relying on their professional experience, luck, or inadequate equipment, believing "nothing will happen," this constitutes conscious negligence or malpractice . For example, performing a risky procedure requiring general anesthesia in a clinic with inadequate equipment can be considered conscious negligence, leading to an increased penalty for the physician.

Turkish Penal Code Article 89: The Crime of Injury Caused by Negligence and its Consequences for Physicians

In practice, the question " Will a doctor be punished if they perform a wrong surgery ?" is primarily addressed under Article 89 of the Turkish Penal Code. If an error during a medical intervention leads to a deterioration in the patient's health, a prolongation of the recovery process, or loss of organs or senses , Article 89 of the Turkish Penal Code, concerning negligent injury, is applied against the doctor .

Particularly in recent times , cosmetic surgery errors, which have received widespread attention, are evaluated under this article in criminal prosecution proceedings, resulting in facial paralysis, tissue necrosis, or permanent scarring. Crimes of simple negligent injury are generally subject to complaint; however, if the act is committed with conscious negligence or results in aggravated consequences (such as loss of organ function), the penalty for negligent injury by a physician is increased, and the case may become a public prosecution.

Turkish Penal Code Article 85: The Crime of Causing Death by Negligence

The most serious consequence of medical malpractice is the patient's death. When death occurs as a result of faulty surgery, failure to manage anesthesia complications, administration of the wrong medication, or delay in emergency intervention , Article 85 of the Turkish Penal Code, concerning manslaughter by negligence, applies to the physician .

This type of crime, commonly known as medical malpractice or manslaughter , carries a direct prison sentence. The answer to the frequently asked questions, " What is the penalty for a doctor in a faulty operation ?" and " Is there a prison sentence for malpractice ?", is imprisonment from 2 to 6 years according to Article 85/1 of the Turkish Penal Code. If a single faulty intervention or organizational error results in the death or injury of multiple people (Article 85/2 of the Turkish Penal Code), the sentence can increase to 15 years. In a criminal case opened due to medical malpractice , the court examines the degree of fault of the physician and the link between the death and the medical error in accordance with the reports of the Forensic Medicine Institute.

Conditions for the Application of Detention, Arrest, and Judicial Control Measures to Physicians

The frequent searches in the media such as " Was the plastic surgeon arrested ?" or " Can doctors be arrested for medical malpractice ?" indicate that measures taken in criminal procedure are being discussed in the public sphere. In malpractice criminal law, detention and arrest are not punishments, but temporary measures aimed at preventing the destruction of evidence or the escape of the suspect.

In cases of death or serious injury , a physician may be detained as part of a malpractice investigation. However, according to Article 100 of the Code of Criminal Procedure, a strong suspicion of guilt and concrete evidence are required for an arrest warrant to be issued. Since evidence in most malpractice cases is examined through hospital records and medical reports, judicial control measures such as travel bans or periodic signing in are generally applied to physicians instead of arrest.

What does this mean?

Doctors generally do not intentionally harm their patients; therefore, criminal cases are opened under the category of "negligence," meaning carelessness and imprudence. If a doctor's erroneous intervention has harmed a patient's health, caused permanent damage, or disrupted the healing process, Article 89 of the Turkish Penal Code (assault) applies; if it has led to the patient's death, Article 85 of the Turkish Penal Code (causing death) applies. In recent investigations that have been made public, the application of measures such as detention or judicial control against doctors does not mean that the crime has been definitively proven; it is a criminal procedural process carried out to collect evidence and clarify the incident.

Investigation Permit, Expert Examination, and Forensic Medicine Process

Differences in Investigation Procedures Between Public and Private Sector Physicians (Professional Responsibility Board)

The first questions patients or their relatives who suspect they have experienced medical malpractice ask are, " Where can I complain about a doctor's malpractice ?" and " Can I report a private hospital doctor to the prosecutor's office ?" The legal process begins with a malpractice complaint filed with the competent Public Prosecutor's Office. However, the initiation of the trial differs from a typical criminal investigation.

In accordance with the regulations made in health legislation, all physicians and other healthcare personnel working in public or private health institutions are subject to a protective preliminary investigation mechanism within the scope of criminal liability . When a complaint is filed with the prosecutor's office against a physician , or when a criminal complaint file is opened by the hospital and the physician , the prosecutor's office cannot directly conduct an investigation. The file first goes to the professional responsibility board of physicians within the Ministry of Health. If the board finds a clear suspicion of abuse of office or medical malpractice in the physician's actions, it grants permission for an investigation; otherwise, it is not legally possible to initiate a public prosecution against the doctor .

Causation: Determining whether the damage is a direct consequence of the error.

In a criminal case, the mere existence of a medical error is not sufficient for a physician to be found culpable; an unbreakable causal link (cause-and-effect relationship) must be established between the harm caused and the physician's action. In other words, the injury or death suffered by the patient must have resulted directly from the physician's faulty intervention.

This situation has different dynamics depending on the medical specialty:

• In obstetric malpractice lawsuits, it is investigated whether the baby's lack of oxygen during birth was due to a delay by the doctor or to a pre-existing anomaly.

• When assessing criminal liability for anesthesia malpractice, the patient's existing allergic reactions or deficiencies in preoperative examinations are examined.

• In dental malpractice investigations, it is determined whether jaw nerve damage resulted from faulty implant technique or anatomical variation.

• In cases involving botox and filler injections, the use of unlicensed substances or injections into the wrong anatomy are elements that directly establish a causal link in prosecutor's files.

If the harm resulted from the patient's pre-existing chronic illness or unavoidable physiological factors, the causal link is broken, and no criminal liability arises.

The Role of Forensic Medicine Institute and High Health Council Reports in Judicial Proceedings

Judges and prosecutors are legal experts; therefore, they cannot assess whether a medical operation complies with medical standards. For this reason, expert examination is the most crucial stage of criminal proceedings. An official forensic medical institution prepares a malpractice report by examining the surgical notes, summaries, test results, and imaging studies included in the case file.

The Forensic Medicine Institute's expert boards scientifically determine whether a physician's action was a complication or a professional deviation (medical error). Courts largely base their decisions of conviction or acquittal on the findings of fault and causality in these technical reports.

Statute of Limitations in Criminal Cases

In cases of medical malpractice offenses, the judicial process must be initiated and concluded within specific timeframes; otherwise, the statute of limitations for the malpractice criminal case expires, and the case is dismissed. The statute of limitations for negligent injury offenses under Article 89 of the Turkish Penal Code is generally 8 years ; for negligent death offenses under Article 85, it is 15 years . In cases of simple injury requiring a complaint, attention to the 6-month complaint period from the date the act and the perpetrator are learned is critically important to avoid loss of rights.

What does this mean?

When a complaint is filed with the prosecutor's office against a physician, a court is not immediately established. Especially for physicians who are public officials or covered by recent legal regulations, permission to investigate must first be obtained from the relevant authorities. Then, the case goes to expert witnesses in the medical field and the Forensic Medicine Institute. The most critical point the court examines is the "causal link"; that is, whether the harm suffered by the patient resulted directly from the doctor's error or from a pre-existing condition.

Managing Legal Processes in Medical Malpractice Claims

Gathering Evidence During the Prosecutor's Complaint and Criminal Investigation Phases

The first question patients who have suffered harm or healthcare professionals against whom an investigation has been initiated research is, " How can I sue a doctor for medical malpractice ?" The course of a criminal investigation in medical malpractice proceedings directly depends on the accuracy of the evidence collected in the initial stages. To prevent the concealment of evidence after a malpractice complaint is submitted to the prosecutor's office, hospital automation records, on-call and surgery logs, anesthesia tracking charts, and drug barcodes administered must be secured by the judicial authorities immediately. Failure to collect evidence in a timely and proper manner can make it impossible to conduct technical investigations in a potential medical malpractice criminal case .

Legal Analysis of Medical Records, CCTV Footage, and Consent Forms

A medical file is based on written and visual documents. Epicrisis reports, nurse observation sheets, laboratory results, and, if available, pre- and post-clinical photographs and camera recordings are subjected to detailed scrutiny. In informed consent cases, particularly those related to aesthetic and surgical procedures, it is not sufficient for the form to simply be signed; legal scrutiny also examines whether the form was given a reasonable time before the operation, whether the risks were clearly explained to the patient, and whether potential complications were detailed. Suspicion of additions or falsifications made to medical records can raise other types of offenses, such as forgery of official documents, when evaluating the physician's criminal liability .

Simultaneous Conduct of Criminal Proceedings and Claims for Material and Moral Damages

One of the most frequently asked questions in practice is, " Can criminal and civil malpractice lawsuits be filed simultaneously ?" While criminal proceedings (Turkish Penal Code Articles 85/89) aim to punish the perpetrator, civil and administrative court lawsuits aim to compensate for material losses and moral damages suffered. Both processes can be conducted concurrently. The findings or forensic medical reports regarding the physician's fault and causal link in the criminal court constitute strong evidence in determining the degree of fault and the amount of compensation in the civil court. Therefore, the two processes must be managed with a strategy that does not conflict with each other.

The Role of Procedural Law in Defense and Participating Party Representation Processes

Medical malpractice criminal liability cases are among the areas where the rules of criminal procedure are applied most strictly. For the victim, asking the right questions and promptly objecting to incomplete expert reports ensures justice; for the physician, proving compliance with professional standards and demonstrating through technical evidence that the situation was an unforeseeable complication prevents unjust punishment. Cross-examination, expert opinions (expert witnesses), and the full implementation of procedural safeguards are the most critical steps in determining the outcome of the case.

What does this mean?

Claims of medical malpractice involve not only medical but also highly technical legal procedures. Obtaining complete hospital records from the time of the incident, verifying the legality of consent forms, and identifying technical inconsistencies in expert reports can completely alter the course of the case. In medical malpractice proceedings, it is crucial for parties to pursue their legal rights on the correct basis to prevent loss of rights and irreparable harm.

Are you facing a difficult medical and legal process?

Adverse outcomes following medical procedures can lead to stressful and complex legal processes for both patients and their families, as well as healthcare professionals. Criminal investigations and compensation processes conducted under Articles 85 and 89 of the Turkish Penal Code are technical areas requiring expertise in medical legislation and criminal procedure. To clarify the legal aspects of your situation, protect your rights, and manage the legal process with the right steps, it is recommended that you consult with a legal professional specializing in this field.

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Frequently Asked Questions (FAQ)

Can a doctor face imprisonment in cases of medical malpractice?

If a defect (malpractice) contrary to standards is detected during a medical intervention and a causal link is established between the physician and the harm, the physician may be sentenced to imprisonment under Article 89 (negligent injury) or Article 85 (negligent death) of the Turkish Penal Code.

What is the fundamental difference between a complication and malpractice?

A complication is an "allowed medical risk" that develops despite strict adherence to medical standards and does not give rise to criminal liability. Malpractice, on the other hand, is a negligent medical error resulting from a physician's lack of care, knowledge, or negligence.

Where can I report medical malpractice?

Complaints are initiated with a criminal complaint petition submitted to the Public Prosecutor's Office. For the investigation to proceed, the Professional Responsibility Board must grant permission for the investigation.

What is the statute of limitations for criminal cases of medical malpractice?

The statute of limitations for negligent injury offenses under Article 89 of the Turkish Penal Code is 8 years; and for negligent death offenses under Article 85 of the Turkish Penal Code, it is 15 years.