Medical Malpractice cases and compensation in Northern Cyprus

The legal system that gives victims the right to open a case in certain medical errors is called medical malpractice. Medical malpractice occurs when a health care professional or provider neglects to provide appropriate treatment, omits to take an appropriate action, or gives substandard treatment that causes harm, injury, or death to a patient.

The malpractice or negligence normally involves a medical error. This could be in diagnosis, medication dosage, health management, treatment, or aftercare. Medical malpractice law makes it possible for patients to recover compensation from any harm that result from sub-standard treatment.

Malpractice cases are evaluated under the heading of Negligence in Section 51 of Article 148 of Wrongful Acts Law and are examined under the sub- heading of Causing Damage or Death Due to Negligence. Article 51 of the Law defines a reasonably cautious person performing an act that he/she would not perform under the same circumstances or not performing an act that he/she would normally perform.

In the case-law, the following 3 elements are required in order to prove the case of the victim in a case based on this article;

1. The defendant is under the obligation to show reasonable care and diligence to the plaintiff

2. Defendant's negligence and failure to show due diligence and care

3. The plaintiff has suffered harm due to the negligence of the defendant, in the classical definition, there must be a causal link between the negligence and damage.

However, for medical malpractice cases, different factors should be included depending on the doctor and patient relationship. It is possible to list these elements as taking care and attention, violation of duty, violation causing direct and imminent harm, deviating from the accepted standard regarding the profession of the expert and creating harm. The aforementioned factors determine the extent of negligence in order to be able to claim compensation in the malpractice cases and they can also be taken into consideration if a claim is to be submitted for a compensation in a case whereby the neglected party should not have been neglected. In the case of malpractice cases, the burden of proof lies with the plaintiff as in all civil cases. The plaintiff is obliged to prove his case according to the probability balance of the causal link. In addition, the plaintiff is obliged to prove that the defective party is in negligence and fault and that the damage is caused by this. If there are two equal claims and one shows that damage can be caused without negligence and fault, the case will be rejected.

In the case of medical malpractice cases, the negligence of the doctor and his team to cause loss, in other words, the causal link between negligence and harm has been stated in many case-law judgments. Caparo v Dickman (1990) stated in the British legislation that the damage and the action should be directly and closely linked and should be taken into account in order to take care of the determination of this link, but it should be considered whether it is fair, appropriate and reasonable. This responsibility should start from the moment the doctor accepts a person as a patient. In this case, the doctor's responsibility is to provide reasonable care, attention and skill in examining a patient, diagnosing a patient and treating the patient.

According to the power of attorney between the doctor and the patient, it is stated that both the doctor and the whole medical team should show the best care and attention and behave by using their personal abilities, and that the responsibility of the doctor will be on the agenda in case of misconduct. Should the behavior of an ordinary person, who should be taken as a measure of the negligence of the doctor or medical team, be the same as the law's practice in the profession or human behavior that requires a professional skill? The most important question to be answered here is what the reasonable standard expected from a doctor and a medical team is. In medical malpractice cases, the issue of the negligence of the physician is examined, a principle known as Bolam test and accepted as a criterion in many decisions is applied. According to this principle, if a physician behaves in the manner accepted by a group of doctors specialized in the field in question, he/she may not be considered negligent even if other doctors behave differently. However, in some cases it is possible to talk about the principle called res ipsa loquitor. This principle is used in cases where there is no need for a knowledgeable person to make judicial appreciation of the situation, which means ‘what is obvious’. In the case of the application of this principle, it is accepted that there is a justified case and responsibility in the first. Then, when this principle is applied, the burden of proof passes to the defendants and defendants must prove that the damage is not due to their negligence.

General compensation covers the usual and probable consequences that occur after the incident. Compensation calculation when assessing general loss is made on the basis of the loss from the death to the end of the lawsuit, the loss from the litigation to the retirement age and the loss after the retirement age. There are many elements to consider when determining the amount of compensation in medical malpractice cases. First of all, the amount of compensation to be paid to the person who has suffered must be complete and sufficient. In determining the amount of compensation, the future loss of earnings should be included in the demand statement. The earnings losses to be made should be reported to the Court even if it is not numerically precise. In cases where the deceased as the result of wrongful act is married and provided for the surviving spouse and children, the lawmaker considers this matter and gives the right to the spouse, children and the mother and father of the deceased, should he/she be providing for them, to file a case and claim for compensation. The heirs of the deceased have the right to sue for damage due to premature death and damage to the estate.

Although the way of appeal in relation to the allegation that the compensation is exorbitant is open in medical malpractice cases, the injured party has the right to file an appeal with the claim that the compensation is insufficient.