Physician's criminal liability arising from the practice of defensive medicine within the scope of the crime of negligent injury

This study examines physicians' defensive medical decision-making, commonly known as defensive medicine, through the perspective of criminal law. In the medical doctrine, the term defensive medicine is used to refer to medical decisions which are carried out for the sake of physicians' urge to reduce their exposure to civil or criminal liability at the expense of medical indication. Accordingly, while unnecessary medical interventions considered to have defensive nature are named assurance behaviour; physicians' evasion of treating patients who may pursue lawsuits on the ground of medical malpractice in the future is named as avoidance behaviour. In the first chapter of this study, medical intervention is conceptualised through the perspective of criminal law. The second chapter of the study, adopting a comparative method, examines the historical development of the concept of defensive medicine and sheds light on its aspects that are relevant in terms of criminal legal dogmatic. In the last chapter, the crime of negligent injury (the Article 89 of the Turkish Penal Code) is analysed within the scope of the defensive behaviour of physicians. In this effort, decisions or judgments adopted by international judicial or quasi-judicial bodies as well as Turkish or foreign judicial bodies are taken into consideration with an aim to analyse defensive medicine from a perspective of both criminal law and human rights law.