Evaluating the Opinions of the Supreme Court and the Council of State on “Informed Consent (Assent)” in Compensation Cases Filed with Medical Malpractice Claim

Abstract

Objective: Informed consent, which is one of the mandatory elements for the legality of medical interventions, is one of the most important elements of malpractice cases. Physicians are held directly and/or indirectly responsible for fulfilling the conditions of informed consent. Informed consent is stated in international medical ethics documents and has been put into practice with many legal regulations in our country. In our study; we aimed to contribute to the literature by raising the awareness of our physicians on the importance and necessity of the informed consent form by evaluating the reversing decisions of the high courts (Council of State and Supreme Court). Methods: The decisions made by the relevant departments of the Council of State and the Supreme Court of Appeals between 2013 and 2022 regarding the cases of pecuniary and non-pecuniary damages brought against malpractice claims were examined. Hundred and 2 decisions were impaired due to the absence or lack of an informed consent form included in our study. Specialties of physicians, medical procedures, complications, average litigation times, informed consent forms, and relevant legal regulations were examined and recorded. Results: A total of 72.5% of all the lawsuits filed in the civil and criminal jurisdictions together with administrative jurisdictions originate from the surgical branches, 100% of the symptoms occurring after the medical procedures were defined as complications, 20.6% of the cases were not prepared with an informed consent form, 24.5% were incompletely drawn up, 3.9% were filed by the relatives of the patients. It was determined that the decisions given by the first instance courts were overturned by the high courts due to incomplete examination, without investigating the informed consent form in 51% of the cases. Conclusion: Informed consent form is evidence in legal disputes that may arise. Since the burden of proof is on physicians or hospitals, it should be fully regulated within the scope of the provisions of the legislation by the physician performing the procedure himself. Even if the deficits that occur after the medical intervention are accepted as complications, decisions are made against the physicians and hospital administrations by the high courts as a result of the fact that the informed consent forms are not prepared, are incompletely prepared, and signed by the relatives of the patients.

Keywords

• malpractice
• ınformed consent
• supreme court and state council