JUDICIAL DECISIONS ON AESTHETIC SURGERY

JUDICIAL DECISIONS ON AESTHETIC SURGERY

Court of Cassation Decision on Breast Aesthetic Mistake
The plaintiff's attorney stated that as a result of the meeting between his client and the defendant doctor on 01.02.2013 about breast aesthetic (breast augmentation) surgery, aesthetic intervention was decided, at this stage, without making any measurements, without taking photographs and without asking for details, only 300 cc round silicone will be used and this will correspond to size 85, the problem will be solved with this, and the cost is 5. 000,00 TL, and in addition to these, he said that he would fill his eyelid and forehead by taking fat from his body and that this would make him feel better at an advanced age, that they agreed for a total of 7.500,00 TL, 2.500,00 TL for these works, and that he asked for a deposit of 2. 000.00 TL deposit, after the surgery performed on 08.02.2013 with the agreement made, her left breast became unrecognizable due to excessive swelling and sagging and downward tendency of the nipples, as well as the filling and excessive swelling on her face, the defendant doctor told his client that he applied 260 cc when it should have been 300 cc, the breast shapes were not symmetrical, the nipples sagged down, the left breast was excessively swollen and she needed another surgery, the 2nd surgery was performed 11 days later. surgery was performed 11 days later, the results were more severe than the first surgery, and there was a 4-5 finger gap between the breasts,

that the defendant made new incisions in the armpit, that due to these incisions being made in the wrong place, the implants hit the armpit and it was not possible for her to turn over and sleep, that due to this defective act of the defendant, the client had to undergo at least 2 more surgeries and wait for 6 months for these surgeries, that it was known that these surgeries would not be a solution due to the defendant's wrong incisions, The defendant did not have the ability to pay, the new surgery and expenses that will need to be done should be evaluated within the financial compensation claims, again, although there was no agreement with the defendant for the application of botox, it was understood that the defendant applied botox in both surgeries from the invoices given by the defendant, for these reasons, without prejudice to their rights regarding the excess, 5. 000.00 TL pecuniary and 100.000.00 TL non-pecuniary damages from the defendant, and with his petition dated 08.01.2014, he explained his claim for pecuniary damages as 4.500.00 TL surgery and hospital expenses and 500.00 TL loss of income due to the time he could not work.

The defendant's attorney, on the other hand, stated that all of the medical interventions were carried out with the knowledge and consent of the plaintiff, that the positive and negative aspects of both interventions were explained in full, that the silicone prostheses of 260 cc were placed in the breast as requested by the plaintiff, that the surgery was extremely successful, that she later requested to add silicone prostheses of 300 cc to her breasts, that although the first medical intervention yielded successful results, she received a detailed consent form upon this request and that this operation was also performed at her request, that he could not relieve his psychology after this surgery, that he did not use poor quality silicone, that the world-renowned "Allergan" brand prosthesis was used, that he did not have any intervention regarding the nipples, that the width between the two breasts was the same as before the surgery, that there was a maximum change of 0.5-1 cm, that the fibers of the muscle to the sternum could not be forced too much while preparing the pocket under the muscle of the silicone prosthesis, that the plaintiff's claims were incompatible with the medical literature, that his client was flawless, and asked for a decision to dismiss the lawsuit.

The court, according to the report dated 05.11.2014 given by the 2nd Specialized Board of the Forensic Medicine Institution. 2014 dated report of the 2nd Specialized Board of the Forensic Medicine Institution, it was understood that the scarring scars of approximately 5 cm under both breasts were due to breast augmentation wound incisions, that the slight asymmetry between both breasts was an expected complication after breast augmentation operation, and that the side shift in both breasts was due to the displacement of the prosthesis, which can occur despite all kinds of care, In the report dated 09.10.2015 of the expert committee consisting of faculty members received upon objection to this report, it was reported that no fault attributable to the defendant physician could be determined, since the situation in question could be corrected with secondary interventions. 10.2015 dated report, it was decided to dismiss the lawsuit on the grounds that the physician was not found to be defective with the same opinion.

It cannot be said that the reports taken as basis for the judgment by the court are compatible with the scope of the file. Namely, it is not a matter of dispute that there is a work contract between the parties regulated in Articles 470 and following of the TCO No. 6098 in force as of the date of the establishment of the contract. With the contract, it was agreed that the plaintiff would undergo aesthetic interventions. It is understood that the contract between the plaintiff and the defendant is different in nature from the contract between the physician and the patient regarding treatment and that the provisions of the work contract should be applied. Pursuant to Article 470 of the TCO regulating the work contract, the contractor's obligation is to create a work and the owner's obligation is to pay a price in return. Due to the nature of the work contract, the contractor guarantees the result. Since the plaintiff applied to the defendant for aesthetic purposes for the enlargement of her breasts and eyelid, it is clear that providing a beautiful appearance in accordance with the desired and agreed purpose by performing plastic surgery is the subject of the contract of work between the parties. The reason for making a contract here is the emergence of a certain result. The work is the result that is realized with a labor that requires the art and skill of the contractor, and the contractor is under the obligation to create the work for the benefit of the owner and without any harm to him.

On the other hand, the obligations of the contractor are regulated in Article 471 of the TCO and it is stated that (1) The contractor is obliged to fulfill the obligations undertaken with loyalty and diligence, observing the legitimate interests of the business owner. (2) In determining the responsibility of the contractor arising from the duty of care, the behavior in accordance with the professional and technical rules that a prudent contractor undertaking works in a similar field should show is taken as basis. As can be understood from this regulation, the physician, who is the contractor, has the obligation to fulfill his/her obligation with loyalty and care. It is also explained that the responsibility of the contractor arising from the contractor's duty of care shall be based on the professional and technical rules that a prudent contractor undertaking works in similar fields should show.

Again, due to the nature of the work contract, the contractor should be deemed to have guaranteed the result. In case of complications, the obligation of disclosure and the correct management of complications are also the responsibility of the contractor (physician).

On the other hand, the EUROPEAN BIOTIP CONTRACT, which was signed on 04.04.1997 and published in the Official Gazette No. 25311 on 09.12.2003 and entered into force and became a part of our domestic law, was ratified on 16.03.2004, and in Article 4 of the convention titled "Compliance with Professional Rules", "any intervention in the field of health, including research, must be carried out in accordance with the relevant professional obligations and standards." In the face of the regulation, since the plaintiff underwent medical intervention in the hospital environment, it is imperative to resolve the dispute based on the provisions of this contract. It is undisputed that the standard referred to in Article 4 of the contract is the medical standard, and the violation of medical standards may occur in the form of deficiency or inaccuracy in the diagnosis or treatment phase or in the process after the intervention. "Medical Standard" refers to the level reached by the physician's experience and natural sciences at that moment, which is necessary for the physician to achieve the purpose of the treatment and which has been tried and proven, and are the tried and known basic professional rules. It is obligatory to accept that the contract will also apply to aesthetic interventions in the nature of work. On the other hand, the obligation to obtain informed consent is clearly regulated in Article 5.

On the other hand, since the procedure applied to the plaintiff was a medical intervention and was performed in a hospital environment, there is an obligation to keep complete hospital records according to the legislation in force, and the physician has the obligation to obtain the consent of the patient. As a matter of fact, pursuant to Article 70 of the Law No. 1279, there is also an obligation to obtain the patient's consent in serious medical interventions. In addition, in the Patient Rights Regulation issued pursuant to the Private Hospitals Law, there are regulations in Articles 7 and 16 regarding the complete keeping of hospital records, and it is obligatory to keep the records of the patient in full.

In the Forensic Medicine Report received by the court, in the conclusion part, it was stated that the 260 cc breast prosthesis inserted in the first operation and fat was taken from the navel and injected into the eyelids, the face and eyes were very swollen after the operation, the person did not find the breast size sufficient after the operation and wanted to enlarge the breast size again, although the relevant physician said that it was too early for this procedure, the written consent was stated that the person wanted the operation to be performed by listening to all the complications from the relevant physician, 300 cc allergan gel prosthesis was inserted in both breasts, the person's both breast gaps were wide, the examination of the person stated that she complained that she could not lie on her side, that it was understood that the scarring scars of approximately 5 cm under both breasts were due to breast augmentation wound incisions, that the slight asymmetry between both breasts was an expected complication after breast augmentation surgery, and that the side shift in both breasts was characterized as a complication that could occur despite all kinds of care due to the displacement of the prosthesis, which could not be attributed to any negligence and defect, and that the situation in question could be corrected with secondary interventions, and it was decided to dismiss the case on the grounds that there was no fault.

When the concrete case is evaluated, the aesthetic intervention performed on the plaintiff did not result in the benefit of the business owner as a result, 1. Since it is understood with the scope of the file that the obligation of enlightenment was not fulfilled in the pre-operative consent and the records were not kept completely, it cannot be said that the contractor fully fulfilled its obligation in accordance with the nature of the work contract and was found to be defective, the enlightenment about the complication was insufficient and the complication management was not sufficient, it was erroneous to rely on the report of the Forensic Medicine Institute, which did not contain sufficient justification, and to make a decision by considering the 2nd report, which was a repetition of this report.

For these reasons, the work to be done by the court consists of evaluating the plaintiff's request items, considering that the defendant physician is defective, evaluating the plaintiff's request items, obtaining a report on what the interventions specified in the forensic medicine report are and what kind of surgeries and how much they can be eliminated, and evaluating the plaintiff's request items regarding loss of income and moral damages, and making a decision in accordance with the result that will be reached.

The decision should be reversed for these reasons.

Conclusion For the reasons explained above, it was unanimously decided on 03.07.2018 that the judgment shall be NOT DISMISSED in favor of the plaintiff, the pre-paid appeal fee shall be returned to the appellant upon request, and it shall be possible to request a correction of the decision within 15 days from the date of notification against the decision.