Administrative legal liability in damages arising from malpractice

Legal disputes arising from malpractice become the focus of various branches of law due to their close relevance to the individual's right to life and bodily integrity. In Turkish Law, differing opinions on the concept of malpractice exist in both legal doctrine and court decisions, leading to ongoing debates. Factors such as whether the hospital is private or public, the nature of the admission contract to the hospital, and others directly impact the procedural and substantive rules applicable to the relevant case. The legal nature of the relationship between the parties determines the legal outcome. In other words, if a physician works in a state hospital or provides treatment for public service reasons, administrative law provisions apply; whereas, if the physician works in a private hospital or performs treatments in a clinic, private law provisions apply. In accordance with the principle of the rule of law, the administration is obliged to compensate for damages caused by its faulty actions and transactions. This obligation is based particularly on service fault and occasionally on gross service fault. The Council of State acknowledges that if public service is deficient, poorly performed, or not performed at all, the administration's service is considered faulty. The Council of State, in malpractice-related compensation lawsuits, does not strictly require gross service fault to establish liability; it deems the presence of service fault sufficient. While the main liability of the administration is fault liability, faultless liability is an exception. The administration's sole liability is not limited to fault liability. With the expansion of the administration's scope of activities and the acceptance of the principle of the welfare state, faultless liability of the administration has also emerged without the requirement of fault. Therefore, firstly, the presence of fault liability of the administration is assessed. If there is no fault liability, the conditions for faultless liability are then evaluated. If faultless liability of the administration exists, the administration is obligated to remedy the damage. In light of this information, the fault liability and faultless liability of the administration in damages arising from malpractice will be examined in detail.