There is no fixed tariff for medical malpractice compensation that applies to every patient. First, liability and the link between the treatment and the harm are determined; then treatment costs, loss of earnings, loss of working capacity, care needs and, where applicable, loss of support are calculated separately. Non-pecuniary damages, however, do not follow from a mathematical coefficient; they depend on legal discretion based on the features of the event. An amount paid in another case is not the value of your file. [1]
Multiplying the disability rate in a medical report by a salary, or demanding several times the surgical fee, is not by itself a valid loss calculation. The basis for every assumption used in the calculation must be shown.
Why must liability be determined before calculating?
A deterioration in a person’s health and the harm that is legally recoverable are not the same thing. The breach attributable to the physician or institution, the harm and the causal link must be assessed. The natural course of an existing illness, pre-existing conditions and other interventions may affect the outcome. These matters bear on both liability and the scope of the calculation. [K1, Articles 49–52, 112]
For example, if the patient’s working capacity was already limited before the procedure, it cannot be assumed that the entire loss arose from the new treatment. Conversely, the existence of a prior illness does not make the additional harm caused by the new breach insignificant. An expert assessment should compare the starting condition, the new effects and the expected natural course.
Service fault in a public hospital and contractual or tort liability in private healthcare rest on different legal bases. In both areas, however, it matters to show which loss arose from which event when the harm is calculated. Article 55 of the Turkish Code of Obligations (TBK), as it applies to claims against the administration, is also taken into account. [1] [2]
How the action is to be brought is explained in our article on how to file a malpractice lawsuit.
Which pecuniary heads of loss may be claimed for bodily injury?
TBK Article 54 regulates treatment costs, loss of earnings, losses arising from a reduction or loss of working capacity, and impairment of economic prospects. Not every head needs to be present in the same event. The same loss cannot be calculated again under different names. [1]
| Head of loss | Matter to examine | Example of evidence |
|---|---|---|
| Treatment and re-treatment | Necessity, scope and connection with the event | Invoice, treatment plan, health record |
| Temporary loss of earnings | Period in which work was not possible and actual loss of income | Medical report, payslips, employment and income records |
| Permanent loss of working capacity | Lasting effect and economic consequence | Suitable medical report, occupation and income data |
| Care costs | Duration, intensity and necessity of care | Expert assessment, care records |
| Impairment of economic prospects | Concrete effect on professional progress and earnings | Education, occupational and career documents |
Treatment, travel and re-intervention costs
The expenses necessary to remedy the harm and connected with the event are identified. Not only the first hospital invoice but also corrective surgery, medicines, rehabilitation, necessary travel and assistive equipment may be examined according to the event. The reason for, and the amount of, each claimed expense must be explained.
The absence of an invoice does not in every case mean there is no loss. TBK Article 50(2) allows the court, where the exact amount of loss cannot be proved, to make a determination having regard to the ordinary course of events and the measures taken by the injured party. However, this provision does not mean that every expense claimed will be accepted without any concrete data. Expense dates, prescriptions, the treatment plan and payment records should be completed as far as possible.
Where care is provided by family members
The need for care is not limited to the invoice of a professional carer. Where a relative provides care free of charge, the need, its duration and its economic value are still assessed. However, the mere fact that a relative lives with the patient does not require automatic acceptance of full-time care costs for the whole period. The medical report and the patient’s daily needs should be made concrete.
For future care, the patient’s condition, the intensity of care and the needs expected to change must be determined. If the current expense and the assumption about the future are shown separately, the calculation becomes open to review.
How is temporary and permanent loss of working capacity distinguished?
The temporary period concerns the inability to work or to earn income during recovery. A permanent loss, by contrast, is the consequence of lasting effects on future work and economic life. The presence of a percentage in a medical report does not by itself determine the length of the temporary period or the person’s actual income.
The purpose of the report matters. Reports prepared for disability, incapacity for work, earning capacity in one’s profession or another assessment may not use the same criteria. The date of the event, the applicable provision, age, occupation and the question the report answers are examined together. Applying the wrong assessment criteria can seriously change the outcome of the calculation.
For an employee, payslips, bank records and documents showing actual earnings are important; for a self-employed professional, tax records, volume of work and records of professional activity matter. The absence of an income document does not mean that earnings may be determined as one wishes. The income and calculation method accepted by the court must be clearly shown.
For children, students, people who perform unpaid household work, or retirees, too, it cannot be concluded that “if there is no salary, there is no loss.” Economic loss and possibilities concerning the future are assessed on the basis of the person’s particular situation and the available means of proof. Applying the same abstract occupation and income assumption to every group is not correct.
Which assumptions should be visible in an actuarial calculation?
In the case of permanent losses extending into the future, the calculation rests on age, income, working period, lasting effect, life expectancy and the applicable calculation method. The life table used, the growth-and-discount method, period divisions and other assumptions must be explained in the report. The output of a single online calculator does not replace these assessments.
The medical expert examines the nature and rate of the harm; the calculation expert examines the economic result. Legal liability and which heads are to be accepted are for the court to assess. One report does not cure all the shortcomings of another. For example, if the rate of permanent loss is disputed, a flawless arithmetic calculation made using that rate may also not be legally reliable.
The income period and the report date also matter in the calculation. In prolonged proceedings, a supplementary calculation may be needed because of new documents or changed data. This does not mean that every file contains unlimited or self-increasing compensation; the procedure for the claim and the justification for updating must be explained separately. [1] [3]
Loss-of-support compensation in the event of death
TBK Article 53 regulates funeral expenses, the related treatment and work-related losses where death did not occur immediately, and the losses of those who have lost support. Loss of support is not the calculation of an inheritance share. It is an independent assessment of loss based on the support the deceased actually provided or was expected to provide in the future. [1]
The supporting relationship of the claimant, the scope of the support, the ages of the parties and the duration of support are examined. Being an heir alone is not sufficient in every case, just as not being an heir does not automatically exclude the claim. Concrete data about family and economic life matter.
It may not be correct to treat the whole income of the deceased as support for a single relative. The deceased’s own consumption, other persons receiving support and shares that change over time are taken into account in the calculation. A claim for non-pecuniary damages, however, is subject to rules separate from those for loss of support.
For files involving death or permanent disability, see our article on compensation for death or permanent disability caused by medical error.
How is the amount of non-pecuniary damages determined?
Non-pecuniary damages are assessed by factors such as the gravity of the event, lasting effects, suffering endured, consequences for life and the concrete situation of the parties. Under TBK Article 56, claims by relatives may also arise in cases of serious bodily injury or death. It is not assumed that every relative has the same right in every event. [1]
This head is neither a fixed percentage of pecuniary damages nor a fixed multiple of the surgical fee. The amount of another publicly reported decision does not provide a reliable comparison where the decision date, the gravity of the event and the legal scope differ. When the amount claimed is justified, the personal effects should be made concrete.
Independent breaches, such as a failure to inform the patient, may also be significant. In the decision of the 10th Chamber of the Council of State (Danıştay), E.2019/8345, K.2023/6457, dated November 6, 2023, the rejection of pecuniary damages was upheld, while the part concerning non-pecuniary damages was quashed because the general consent form was inadequate. This decision shows that the assessment of pecuniary and non-pecuniary harm may not always reach the same result; it does not establish a fixed compensation tariff. [4]
Reduction, prior payments and interest
The effect of the injured party’s own conduct on the arising or increase of the harm may be examined under TBK Article 52. For example, if the failure to attend a recommended check-up is raised, it must be shown that the check-up was clearly recommended, that the patient was able to comply and that the omission increased the harm. The defence that “the patient did not come for the check-up” does not provide complete exoneration in every case.
A payment made by insurance, social security or another source is also assessed according to its nature. Not all payments should be automatically deducted without regard to the limits set by TBK Article 55, in particular for social security payments that are not subject to recourse and for payments not intended to perform the obligation. Where a payment has genuinely covered the same loss, it cannot be disregarded in a way that would result in double recovery. [1]
The type and starting point of interest may vary according to the basis of liability, default, any application to the administration and the claim. It cannot be said that in all malpractice actions the same commercial interest runs from the day of surgery. Court costs and attorney’s fees are also procedural items separate from the calculation of the harm.
For insurance payments, see our article on medical malpractice insurance, coverage and compensation claims; for resolution by agreement, see mediation and settlement in malpractice disputes.
An illustrative interim total
In a purely hypothetical event, assume additional treatment costs of 80,000 Turkish lira (TL) whose connection and necessity are accepted, a documented temporary loss of income of 45,000 TL, and care costs of 30,000 TL accepted in the assessment. The interim total of these three heads is 155,000 TL. This figure merely shows the addition.
Permanent loss, future expenses, non-pecuniary damages, reduction, prior payments and interest are not included in this example. It also assumes that liability and causation are accepted. The example cannot be used as an offer, a valuation of a file or a promise of an amount that may be obtained.
To assert the claim within time, see our article on limitation periods and filing deadlines in malpractice actions, and for our service page, see medical malpractice and physician error cases.
Conclusion
Medical malpractice compensation is calculated by determining each head of loss separately and supporting each with evidence. The medical report, income information and calculation method must be consistent with one another. A realistic assessment rests on explaining which loss is claimed, for what reason and by what method, rather than simply demanding a high total.
Frequently Asked Questions
Does the disability rate alone determine compensation?
No. The purpose of the report, the nature of the income, age, occupation, period and calculation method also affect the outcome.
Can a person who does not work claim pecuniary damages?
There is no such general rule. Care, treatment and concrete economic losses are examined separately according to the person’s circumstances.
If there is no invoice, can no expense be claimed?
No. Other evidence and TBK Article 50(2) may be considered. Even so, the fact that the expense was incurred and was necessary should be made as concrete as possible.
How many times the surgical fee is non-pecuniary damages?
There is no fixed multiple. Legal discretion is exercised on the basis of the features of the event and the harm.
Is an insurance payment always deducted from the calculated loss?
The source, purpose, the heads it covers and its recourse character are examined. The same set-off rule cannot be applied to all payments.
Sources and legal bases
- Law No. 6098 on the Turkish Code of Obligations (Türk Borçlar Kanunu, TBK), in particular Articles 49–56, 112. Official legislation.
- Administrative Procedure Law No. 2577 (İdari Yargılama Usulü Kanunu), Articles 2, 13. Legislation record.
- Code of Civil Procedure No. 6100 (Hukuk Muhakemeleri Kanunu), Articles 107, 190, 266–282. Legislation record.
- Council of State (Danıştay) 10th Chamber, E.2019/8345, K.2023/6457, November 6, 2023. Decision text — De Jure, may require login.