A Legal Assessment of Negligent / Faulty Cosmetic Surgery

Although plastic surgery is divided into many sub-branches, the most widely used of these today is undoubtedly cosmetic surgery. Cosmetic surgery is the surgical branch that helps people make their appearance even more attractive and achieve the look they want. Today, with rising economic prosperity, people frequently turn to it for the sake of their mental health and to enhance their looks.

1. The Legal Nature of Cosmetic Operations

When the nature of the contract between the cosmetic surgeon and the patient is examined, it becomes clear that it is subject to the provisions on the contract of mandate or the contract for work (eser sözleşmesi). In cosmetic procedures in which the physical appearance is not definitively foreseen and no specific result is promised, the relationship between the doctor and the patient is in the nature of a contract of mandate. By contrast, in light of the generally accepted view in legal doctrine and the decisions of the Court of Cassation, cosmetic operations are regarded as contracts for work. Examples of operations that we can assess within the scope of the contract for work include procedures such as lip fillers, hair transplants, epilation and rhinoplasty.

Under Article 470 of the Turkish Code of Obligations (TBK), which governs the contract for work, the contractor undertakes to produce a work and the client undertakes to pay a price in return. By the nature of the contract for work, the contractor guarantees the result. It is clear that a cosmetic operation that a person has a plastic surgeon perform in order to obtain an attractive appearance suited to the intended purpose is a contract for work. The reason for concluding this contract is the achievement of a specific result. The work is the result achieved through labor requiring the art and skill of the contractor (the plastic surgeon), and the contractor is under an obligation to perform the work in a manner that benefits the client (the patient) and without causing them any harm.

“Considering that the contract between the parties is in the nature of a contract for work, it must be accepted that, in response to the plaintiff’s request concerning both the facelift and the removal of fatty tissue, the defendant doctor gave a guarantee that the plaintiff would be given a more attractive appearance.” Court of Cassation, 15th Civil Chamber, Docket No. 2020/1854, Decision No. 2021/619, 3.3.2021

“As for complications, the duty to inform and the proper management of complications are again the responsibility of the contractor (the physician). Since the plaintiff applied to the defendant for the purpose of a facelift and the removal of fat under the chin, that is, for a cosmetic purpose, it is clear that the subject of the contract for work between the parties is the achievement, by means of cosmetic surgery, of an attractive appearance in line with the desired and agreed purpose. Here, the reason for concluding the contract is the achievement of a specific result. The work is the result achieved through an expenditure of labor requiring the art and skill of the contractor, and the contractor is under an obligation to produce the work in a manner that benefits the client and without causing them any harm.’’ Court of Cassation, 15th Civil Chamber, Docket No. 2020/1854, Decision No. 2021/619, 3.3.2021

2. The Physician’s Obligations and Liability

2.1. The Physician’s Obligation under the Contract for Work

Article 471 of the TBK provides: “The contractor is obliged to perform the obligations it has undertaken with loyalty and care, taking into account the legitimate interests of the client.” In addition to the physician’s duties under the contract for work, such as “producing the work”, “performing the work personally”, “applying the most appropriate treatment” and “loyalty and care”, one of the physician’s most important obligations is undoubtedly the “duty to inform the patient”, and the physician must fulfill these obligations.

2.1.1 The Duty to Inform the Patient

Under the contract between them, the physician must inform the patient about the entire process before, during and after the operation. The physician must inform the patient clearly, plainly and comprehensibly, down to the finest detail, about the treatment, the procedures to be performed, the risks that may arise, the use of medication and the follow-up process. Otherwise, a patient who has not received the necessary information and does not know the risks that may result from the treatment cannot be said to have consented to the intervention of their own free will. Where there is no consent given freely, the condition of consent, which forms the basis of the lawfulness of the procedure, is not met, and an unlawful intervention has been carried out. In this case, even if the doctor was not at fault in applying the treatment and exercised the necessary attention and care, the doctor is at fault because the patient was not sufficiently informed, and the doctor’s liability continues.

The form of the information and the consent to be obtained from the patient should not take the form of a consent document drafted in general and abstract terms. It must be clear that the patient has been informed about the method’s chance of success, the duration of the procedure and the treatment, the existing risks, the possible outcomes and the complications that may arise.

Since a medical intervention is a violation of bodily integrity, the intervention becomes lawful only with consent. It should be noted that, according to Court of Cassation decisions, the burden of proving that the duty to inform has been fulfilled and that informed consent has been obtained lies with the physician and the hospital.

2.1.2 Obtaining the Patient’s Informed Consent

According to Article 26, headed “Informed Consent”, in Section 4 of the Rules of Medical Professional Ethics, the section governing physician-patient relations:

“The physician informs the patient about the patient’s state of health and the diagnosis made, the type of treatment method proposed, its chance of success and its duration, the risks that the treatment method poses to the patient’s health, the use and possible side effects of the medicines given, the consequences of the illness if the patient does not accept the proposed treatment, and the possible treatment options and their risks. The information provided must be appropriate and pay due regard to the patient’s cultural, social and psychological situation. The information must be given in a way that the patient can understand. The patient determines the persons, other than the patient, who are to be informed. Any health-related intervention may be carried out with the person’s free and informed consent. Consent is invalid if it was obtained through pressure, threat, incomplete information or deception. In emergencies, and where the patient is a minor, is unconscious or is unable to make a decision, the permission of the patient’s legal representative is obtained. If the physician believes that the representative’s refusal to give permission is based on bad faith and this situation threatens the patient’s life, the matter should be reported to the judicial authorities and permission obtained. If this is not possible, the physician tries to consult another colleague or undertakes only life-saving interventions. Intervening in emergencies is at the physician’s discretion. Because diseases whose treatment is made compulsory by law threaten public health, the necessary treatment is carried out even if the informed consent of the patient or the patient’s legal representative is not obtained. The patient may withdraw the informed consent they have given at any time.”

It is striking that in current practice, particularly for surgical interventions, the duty to inform is fulfilled by having patients sign various written forms setting out the medical intervention to be performed and its risks. Although having written forms signed and stating the patient’s personal characteristics on the form may seem sufficient to prove that the form was prepared for that patient and that the patient was informed, this does not show that the patient understood the information in the form or was sufficiently informed.

Accordingly, the Informed Consent process is the process in which the patient is sufficiently informed to be able to approve or refuse any medical procedure to be performed on them, reflects on the information received and makes a decision based on their free choice. The nature of the diagnostic and treatment methods to be applied, their expected benefits, their possible side effects, other diagnostic and treatment options and their characteristics must be explained to the patient. In addition, various conditions must be met for the person to be “informed” about their situation and to be able to consent to the medical intervention proposed to them. The information must be explained in plain and comprehensible language, it must be understood by the patient, the patient must act voluntarily and the patient must have the capacity to give consent. As expressly stated in the European Charter of Patients’ Rights and in the Rules of Medical Professional Ethics, this is achieved by the physician informing the patient – and, where necessary, the patient’s guardian – in comprehensible language suited to the patient’s intellectual level and sociocultural characteristics, by entering into an oral dialogue in which the physician answers the patient’s questions about their health. Fulfilling these conditions is, directly and/or indirectly, the responsibility of the physician.

One of the preconditions for obtaining valid and appropriate consent is that, after being informed, the patient is given sufficient time to give consent. In particular, for patients whose situation is not an emergency and who have no legal or medical condition preventing them from deciding about their own future, before surgical procedures, all the information the person needs to know must be given to the patient at least 24 hours before the procedure, so that the person can make a reasonable and appropriate assessment, as emphasized in Article 4 of the EU Charter of Patients’ Rights.

“Article 5 of the Convention on Biomedicine regulates the matter of “Consent” and, with the provision “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”, defines the scope of consent and introduces rules parallel to the settled practice of this Chamber. Merely consenting to the procedure to be performed is not sufficient. In addition, the complications must also be explained. However, as emphasized just above, this consent must also be informed consent.(...) In the present case, the forensic medicine report added to the case file stated that the incident remained within the limits of a complication and reported that the defendants were not liable. In addition, although the forensic medicine report also stated that the information given by the doctor who performed the procedure to the patient about the procedure complied with medical rules, the defendant party was unable to prove, in the manner stated just above, that an informed consent document was drawn up showing that the plaintiff had been informed, before the operation performed, about the complications of the operation, and the consent form in the case file relates to procedures performed at ... State Hospital. Therefore, whereas the court should have investigated whether informed consent in line with the above explanations was obtained by the defendant doctor during the operation performed at the defendant hospital and should have given a decision in accordance with the outcome, the dismissal of the action in its entirety, with this aspect disregarded, is contrary to procedure and law and requires reversal. ” Court of Cassation, 13th Civil Chamber, Docket No. 2015/13748, Decision No. 2017/344, 19.1.2017

For the validity of the informed consent text, it will be beneficial for the text to be as clear as possible and to use Turkish terms. It is argued that, if the medical and surgical intervention to be performed is to be carried out jointly by physicians from different fields, each of them must inform the patient separately about their own part of the procedure; however, if the information given by one of them also covers the other fields, a single briefing will be sufficient. It is the physician’s responsibility to obtain consent by drawing up a separate document for each invasive and high-risk intervention/treatment.

“Merely consenting to the procedure to be performed is not sufficient. In addition, the complications must also be explained. However, as emphasized just above, this consent must also be informed consent. (...) In the case of informed consent, the burden of proof lies with the physician or the hospital. In the present case, it is understood that the "Colectomy Information and Consent Form" dated June 23, 2015 was drawn up in the name of the plaintiff patient and signed by the plaintiff, and that for the second medical operation performed on July 2, 2015, an "Ileus Information and Consent Document" of the same date was drawn up, whereas this document was signed by the plaintiff’s daughter as the patient’s relative. No explanation was given as to why the "Ileus Information and Consent Document" consent form dated July 2, 2015 was signed by the plaintiff’s daughter instead of the plaintiff, and this situation was not assessed by the court or by the court-appointed experts” Court of Cassation, 3rd Civil Chamber, Docket No. 2021/165, Decision No. 2021/10553, 21.10.2021

Except where a formal requirement is prescribed by law, the duty to inform is not subject to any form and may be fulfilled orally or in writing. The cases in which written consent must be obtained have to be decided by examining the relevant statutory provisions according to the type of each intervention. To give an example, Article 6 of the Law on the Removal, Storage, Grafting and Transplantation of Organs and Tissues provides: “For organs and tissues to be removed from a person who has reached the age of eighteen and possesses the power of discernment, it is mandatory that the donor’s prior written and signed statement, given expressly, consciously and free from any influence in the presence of at least two witnesses, or the record of the donor’s oral statement made before at least two witnesses and signed by the donor, be approved by a physician.”

2.2 The Physician’s Liability Arising from Malpractice (Errors in Medical Practice)

Under Article 470 of the Turkish Code of Obligations, a contract for work is a contract in which the contractor undertakes to produce a work and the client undertakes to pay a price in return.

In cosmetic operations, the physician and the patient reach an agreement on what kind of result is desired. The important point is that a specific appearance is promised to the patient. For this reason, since the cosmetic surgeon, by the nature of the work, is obliged to exercise greater attention and care than other surgeons, the cosmetic surgeon’s liability is also broader than that of other physicians and surgeons.

Since there is no specific provision in our legal system on the liability of the cosmetic surgeon, disputes are resolved according to the general provisions of the Turkish law of obligations. Where there is a contract between the parties, the signed contract and the general provisions of contract law apply to the disputes between them. Where there is no contractual relationship between the parties, the provisions on tort will be applied. If the contractor (the physician) acts in breach of their contractual obligations and duties, the physician may be held liable. In this case, it is possible to file an action for compensation for pecuniary and non-pecuniary damage.

Examples of situations giving rise to the physician’s liability include a person’s nose being crooked after cosmetic surgery, a person who has had their eyes made slanted experiencing vision problems, and the tissues of a person who has had Botox being damaged.

In cosmetic procedures, liability for errors in medical practice is fault-based liability. Since, under the law, the performance of cosmetic procedures is treated as the exercise of the medical profession, which requires expertise, a contract stating that the physician will not be liable for slight fault or for any fault is deemed invalid and is absolutely null and void.

2.2.1 Compensation for Pecuniary Damage

In compensation for pecuniary damage arising from a cosmetic operation for beautification purposes, in addition to the elective rights listed below, the loss of earnings suffered by the patient due to the faulty intervention (damage arising from the loss of the ability to work) and damage arising from the impairment of the patient’s economic future may also be claimed. It should not be forgotten that each case must be assessed on its own facts. The internal relationship between the physician and the hospital operator does not concern the patient. If the cosmetic procedure was performed in a hospital rather than in a private clinic, the hospital operator and the physician will be jointly and severally liable to the patient. However, the parties may have recourse against each other. There is a special rule for public hospitals: actions for compensation resulting from medical malpractice occurring in these hospitals may be brought directly against the relevant public institution. It is not possible to bring an action for compensation directly against a doctor who has the status of a civil servant (Constitution Art. 129/5). The public institution’s right of recourse against the doctor is reserved.

Where there is a defect in the legal sense after a cosmetic procedure (the nose drooping, a dental prosthesis not fitting the mouth, the face not looking as desired, etc.), the client (the patient) may demand that the defect be remedied without paying any fee, that the contract be terminated and the fee paid be refunded, or that the price be reduced in proportion to the defect. These rights are elective; it is not possible to claim all of them at the same time, and the patient must choose one of them.

“The relationship between the plaintiff and the defendant doctor is a contract for work relationship governed by Articles 355 (Article 455 of Law No. 6098) et seq. of the former Code of Obligations (BK). The dispute between the parties must be resolved according to the provisions on the contract for work. The plaintiff is in the position of the client, and the defendant doctor in that of the contractor. The defendant doctor undertook to perform the plaintiff’s breast surgery. This operation is purely for cosmetic purposes. The defendant doctor’s obligations are governed by Articles 356 (Article 456 of Law No. 6098) et seq. of the BK. The defendant’s most important obligation is to perform the cosmetic operation in the way the plaintiff wishes. If it is not possible to perform the cosmetic operation in the way the plaintiff wishes, the defendant doctor has an obligation first to warn the plaintiff about this. The defendant has not been able to prove that a warning was given.

…From the content of the report issued by the 3rd Specialty Board of the Council of Forensic Medicine, it is concluded that the defendant doctor did not fully perform their obligations. The existence of professional fault on the part of the defendant doctor must be accepted. In this case, it is necessary to hold the defendant liable under Article 96 of the BK.

In relationships based on a contract for work, requesting the refund of the price paid for the work and of the expenses incurred results in the contract being terminated by the plaintiff client. In this case, the plaintiff client cannot request reimbursement of the expenses incurred to remedy the defect. Where the plaintiff client requests reimbursement of the expenses incurred to remedy the defect, the price of the work and the expenses must be borne by the client, so reimbursement of the price of the work and the expenses cannot be requested. On this point, the plaintiff’s attorney must be asked for the plaintiff’s preference, and an assessment must be made according to the answer.

The plaintiff has also claimed compensation for non-pecuniary damage. Since, as explained above, the defendant doctor was found to be at fault in the cosmetic operations, and since it is natural that the plaintiff suffered pain and distress because of cosmetic operations that did not fully succeed, the court must award in favor of the plaintiff the compensation for non-pecuniary damage that it deems appropriate.’’ Court of Cassation, 3rd Civil Chamber, Docket No. 2013/11743, Decision No. 2013/13688, 1.10.2013

In both contractual and non-contractual liability, the burden of proving the actual amount of the damage suffered lies with the injured patient. However, since it is usually difficult to prove the exact amount of the damage, the judge may award compensation according to the particular circumstances of the case. When this compensation is calculated, facts such as the patient having given the cosmetic surgeon incorrect information, not having followed instructions, having an excessively sensitive constitution, or having consented despite knowing the danger may be taken into account, and the amount of compensation may be reduced or it may even be decided that no compensation is to be paid. For example, if, during the healing process of the area operated on, the patient did not do what they should have done or did what they should not have done, or asked for the treatment to be stopped, the cosmetic surgeon is no longer liable for this. On the other hand, fault on the part of the patient that does not break the chain of causation is considered a ground for reducing the compensation.

2.2.2 Compensation for Non-Pecuniary Damage

Under Article 56 of the Turkish Code of Obligations, an action may be brought for an appropriate amount of compensation for non-pecuniary damage to be paid to the injured person (the patient). Non-pecuniary damage is deemed to have occurred where, after the operation, the patient faces an unwanted outcome and suffers pain and distress or is humiliated.

“Although the Forensic Medicine Report obtained by the court stated that the skin necroses that appeared in the patient were understood to have arisen from a combined effect due to the incorrect use of the laser liposuction device and of the corset, and that, if the device settings and maintenance were accepted as correct, they were assessed as a complication resulting from the combination of application-related characteristics with the incorrect use of the corset and requiring a reconstruction procedure to remedy, when the present case is assessed, it is understood that the cosmetic procedure performed on the plaintiff did not, in terms of its result, produce an outcome in favor of the plaintiff client. In this case, it was wrong to rely on the expert report, which did not contain sufficient reasoning.

For these reasons, what the court must do is, taking into account that the defendant physician was at fault, to assess the plaintiff’s heads of claim, to form a panel of court-appointed experts in the relevant field, to have the amount of compensation for pecuniary damage that the plaintiff may claim calculated, also to reassess the amount of compensation for non-pecuniary damage, which is found to be low in view of the parties’ social and economic circumstances, and to give a decision in line with the resulting outcome. For the reasons explained, it was found appropriate to reverse the judgment.’’ Court of Cassation, 15th Civil Chamber, Docket No. 2019/3257, Decision No. 2020/1565, 15.6.2020

2.3 Assessment of Evidence According to Court of Cassation Decisions

In legal doctrine, in parallel with Court of Cassation decisions, it has also been stated that cosmetic procedures performed ‘for beautification purposes’ will be in the nature of a work, and that the provisions on the warranty against defects may be invoked by comparing photographs taken before and after the operation. In this respect, a notarial record of the preservation of evidence obtained before and after the operation will constitute important evidence for lawsuits that may be contemplated in the future.

“In cosmetic operations, if the doctor performing the operation has given a certain assurance regarding the cosmetic appearance, this contract between the parties is a contract for work. In a contract for work too, as in a contract of mandate, the contractor is obliged to perform the work with loyalty and care, and the defendant doctor is obliged to prove that they fulfilled all the requirements of their professional knowledge. In the event of a very clear adverse difference in the photographs taken before and after the operation as regards a deficient appearance, the court, rather than contenting itself with the report issued by the High Health Board, should send the file in its entirety to the Grand Board of Forensic Medicine and, if necessary, also have the plaintiff examined, and a report should be obtained on the extent to which the parties were at fault in causing the damage.” Court of Cassation, 13th Civil Chamber, Docket No. 1993/131, Decision No. 1993/2741, 5.4.1993

“A doctor who intervenes to remove a tattoo on the plaintiff’s arm for cosmetic purposes is deemed, by the nature of the contract for work, also to have undertaken to remove the mark completely. However, according to the case file and the photographs, a new, unhealthy and ugly-looking mark has appeared on the plaintiff’s arm as the scar of the surgical intervention, making one long for the previous condition. Under Article 360 of the BK, the work performed is so defective that the client cannot be compelled to accept it...” Court of Cassation, 15th Civil Chamber, 3.11.1999, 4007/3868

As can be seen in Court of Cassation decisions, in cosmetic operations great importance is attached to records such as photographs and videos of the treated area taken before and after the operation. In addition, after a cosmetic operation, obtaining a report from a physician specializing in this field or from a board at a hospital in order to establish the error and the damage in the treated area, and having the court carry out a preservation of evidence, will be in the patient’s interest at the litigation stage.

Att. Taha Hüseyin Çebi

Trainee Att. Mustafa Kama

This article is a general assessment prepared in accordance with the legislation in force on its date of publication; it does not constitute a legal opinion. This English text is a translation of the Turkish original; in case of any discrepancy, the Turkish version prevails.