19 July 2018 Thursday

Hamdullah Aktaş and Others [PA] (no. 2015/10945, 19 July 2018)

The Facts

The infant’s parents noticed that their daughter could not use her left arm. The medical examinations revealed that she had sustained a nerve damage during the birth. She is still undergoing a medical treatment at the time of the present case.

The parents brought an action for compensation before the incumbent administrative court and claimed pecuniary and non-pecuniary compensation, maintaining that the nerve damage was caused due to the fault and negligent acts of the medical staff involved in the birth process.

The administrative court dismissed the action on the ground that, no service fault attributable to the defendant administration was found in the report prepared by the Forensic Medicine Institute regarding the disability caused during the birth to the infant’s left arm.

The Council of State upheld the administrative court’s decision insofar as it concerned the claim for pecuniary damage; but quashed it insofar as it concerned the claim for non-pecuniary damage on the ground that there were deficiency and fault in the proper provision of medical service due to failure to keep the mother’s medical records containing various data that was capable of clarifying the incident.

The applicants’ request for rectification of the upholding judgment of the Council of State was rejected.

The Applicants’ Allegations

The applicants maintained that there were violations of their right to protect and develop the corporeal and spiritual existence due to dismissal of their claim for pecuniary compensation, as well as their right to a fair trial due to non-conclusion of the proceedings within a reasonable time.

The Court’s Assessment

An individual’s right to protect and develop his corporeal and spiritual existence is safeguarded by Article 17 of the Constitution.

Accordingly, the State is responsible for preventing any interference with individuals’ corporeal and spiritual existence, for investigating any interference which could not be prevented, for identifying and prosecuting and/or punishing offenders and, if necessary, for effectively redressing the damages arising therefrom or for holding the responsible persons liable for such damages.

The positive obligation incumbent upon the State also covers the activities conducted in the medical sector. In principle, the main remedy to be resorted to in case of any complaint as to medical negligence is a civil action or an administrative action for compensation that may be applied in order for the establishment of legal responsibility arising therefrom.

In the present case, the inferior court failed to clarify whether the prenatal infant development had been proper according to the medical examinations; whether the mother had been examined by the relevant doctor; and even whether any step had been taken for determination of the birth weight.

The infant, who was born by normal delivery, weighed 5 kilograms. It could not be comprehended why the infant’s birth weight was not determined before the birth although the applicant mother had been prenatally hospitalized. The expert report did not contain any information as to whether normal delivery method would had been considered risky if the approximate birth weight of the infant had been known.

As it is possible for patients to change their consent to the delivery method when they are informed of potential risks adequately, the patient’s consent may be deemed valid only when the patient has been informed accordingly. In the present case, it has been observed that the applicants were not informed of the potential risks associated by the method of normal delivery. In their decisions, the inferior courts did not discuss as to whether the applicants’ consents were obtained after being informed of the process.

In addition, the applicants stated that a doctor did not attend the birth of their daughter, who was delivered by midwives. It is ordinary for births through normal delivery method to take place in the presence of midwives. However, it must be also borne in mind that in case of any emergency or any medical decision to be taken, it is necessary to consult a doctor and seek medical intervention. Accordingly, it is hardly possible to acknowledge that the court’s decision, which was rendered on the basis of the expert report indicating that the administration’s act was in compliance with medical rules, had relevant and sufficient justification.

It has been observed that the infant’s disability could not be detected by the medical staff but subsequently noticed by the applicants upon her discharge from the hospital. The expert report does not contain any explanation as to the impacts of this delay on the infant’s treatment process, nor did the inferior courts discuss this matter.

The inferior courts also failed to provide any justification as to why the fault in the medical service occurring as a result of the administration’s failure to keep the mother’s medical records resulted in only non-pecuniary damage but not in pecuniary damages.

Besides, regard being had to the similar judgments rendered by the Court and the nature and subject matter of the proceedings and the present application, the Court found unreasonable the length of the proceedings lasting for a total of 8 years, 2 months and 21 days.

For the reasons explained above, the Court found violations of the applicants’ right to protect and develop the corporeal and spiritual existence safeguarded by Article 17 of the Constitution, as well as their right to a trial within a reasonable time safeguarded by Article 36 of the Constitution.