A malpractice claim is not proven merely by showing that the patient was in a better condition before treatment and a worse one afterwards. It must explain which duty was breached, what harm that breach caused and which records establish that link. At the centre of the file are usually the patient records, the information given before the procedure and a reasoned expert assessment.
The difficulty of proof stems from the specialist nature of medical knowledge and from the fact that most of the relevant records are held by the healthcare institution. However, this difficulty does not mean that the patient must produce every document alone, nor that the physician must explain every unfavourable outcome. The legal relationship, the burden of proof and the obtaining of records through the court are assessed together.
Core issues that must be proven
In private law, a malpractice claim may be founded on breach of contract or on tort. HMK Article 190 sets out the general rule on the burden of proof, and TBK Article 50 regulates proof of harm and fault in tort. In breach of contract, the provision of TBK Article 112 under which the debtor must prove that it was not at fault is also of particular importance. For this reason, both the generalisations “the burden of proof rests entirely on the patient” and “the doctor must prove everything” are incomplete. [1, 2]
Breach of the medical standard
The first question is what the medical standard was on the date of the event. What evaluation was required for the diagnosis; was the chosen method among the accepted options; was follow-up and referral carried out on time? Beyond stating a conclusion, the expert is expected to answer these questions by reference to the patient’s characteristics and the conditions of the intervention.
There may be several acceptable treatment methods. The fact that another physician later preferred a different method does not by itself make the earlier choice wrong. On the other hand, if it is claimed that a particular method was unsuitable because of risks specific to the patient, that claim must be discussed on scientific grounds. Inadequate facilities at the healthcare institution are not an excuse in every case; the duty to make an appropriate referral is also examined separately.
Harm and the causal link
Harm may take the form of a need for additional treatment, permanent loss of function, time away from work, economic loss or impairment of personal interests. Harm that already existed before the intervention must be separated from harm added afterwards. Proof is not limited to determining the degree of fault; it must also explain how the conduct alleged to be faulty contributed to the harm.
In a hypothetical example, treatment may have been delayed because an imaging result was reported to the patient late. In such a file, showing that the report was delayed is important; but whether the delay affected the treatment options, the likelihood of recovery or the harm that arose also requires expert analysis. An outcome that was medically unavoidable and the harm added by the delay are not treated as the same thing. Where uncertainty exists, the expert should state it and give reasons, and should not present the unknown as settled fact.
Which questions are used to examine a complication defence
That a result is described as a complication in the medical literature does not, by itself, remove legal liability. The examination should cover the prevention and management of the risk and the information given to the patient. On the other hand, in a liability regime that requires fault, it is also incorrect to treat every complication as automatic malpractice. Commentary stresses that this distinction should be drawn without turning the physician’s liability into de facto strict liability. [3]
| Review question | Record that may be sought | Point to compare with the defence |
|---|---|---|
| Was the risk foreseeable before the procedure? | History, examination, tests and plan | Were the risks specific to the patient assessed? |
| Was the necessary precaution taken? | Surgical and procedure records | Is it documented that the precaution was actually applied, and not merely recommended? |
| When was the problem noticed? | Observation charts, telephone and follow-up records | Is there an unexplained delay between the symptoms and the evaluation? |
| Was an appropriate intervention made? | Consultation, referral and new treatment records | What effect did any delay or missing intervention have on the harm? |
| Was the patient adequately informed? | Procedure-specific consent and conversation record | Does the signature show that the risk that materialised was actually explained? |
An expert report that concludes “a complication developed” can be specifically challenged if these questions have not been answered. The purpose of an objection is not to have every report rejected, but to have the reasoning behind the conclusion examined. If the patient did not follow instructions, the file examines what that instruction was, whether it was clearly given and what effect it had on the harm. An abstract defence that “the patient did not come to the check-up” cannot place the whole harm on the patient.
Why informed consent is examined separately
The Patient Rights Regulation (Hasta Hakları Yönetmeliği) is based on the principle that a person must be informed, in an understandable way, about the nature of the intervention, its benefits, significant risks, alternatives and the consequences of refusal. Disclosure serves to enable the patient to make a genuine choice. Signing a standard form alone does not take the place of this process. [4]
Elements required for valid disclosure
The document must name the correct procedure; the explanation must suit the patient’s age, education and language, and the specific characteristics of the intervention. It is important that there was time between the disclosure and the decision. Particularly in planned aesthetic procedures, it may be questioned whether a form presented at the last minute, under payment and travel pressure, gave a real opportunity to consider.
Not every medical procedure is subject to the same written-form rule; special regulations apply separately. However, procedure-specific records are important for proving that disclosure took place. Who may decide on the patient’s behalf is also determined separately. Minority, capacity of discernment and the relationship of representation are assessed together with the exceptions for emergency and compulsory interventions. The emergency exception does not remove all the duties of disclosure and recording that follow.
Consent and an exemption from liability are different
A patient’s acceptance of a foreseeable risk does not mean that the patient accepted careless performance. TBK Article 115 limits advance exemption agreements for gross fault, and also limits advance exemption agreements for slight fault in specialist services performed under permission. For this reason, a record such as “I will make no claims whatsoever” cannot be accepted as a complete defence for the physician without examining its scope and validity. [1]
Technical fault and deficient disclosure are not the same. A technical procedure may have been correct while the patient’s right to decide was not adequately protected. The legal basis of the claim must be clearly established, and the harm linked to each breach must be identified. An automatic compensation amount cannot be derived from a finding that consent was deficient.
Actual decision: the Elif Öztürk application
In the decision of the Constitutional Court First Section, Elif Öztürk, Application No. 2021/22380, May 14, 2025, the compensation process was examined in respect of a claim of nerve damage following a biopsy. The Council of Forensic Medicine and other expert reports characterised the harm as a complication, and the lower courts dismissed the case.
The Constitutional Court (AYM) focused on the fact that the applicant’s substantive objection concerning informed consent was not met with adequate investigation and reasoning. Noting that it had not been clarified whether the disclosure about the specific risk and the consent had been properly obtained, the Court found a violation under Article 17 of the Constitution and ordered a retrial. Paragraphs 22–27 of the decision deal in particular with the requirement that consent rest on informed will and with proof of disclosure.
For file preparation, the conclusion that can be drawn is this: when an expert report finds “no fault”, the discussion of consent must not be forgotten. On the other hand, the decision cannot be described as one in which the Constitutional Court itself determined medical fault or awarded the compensation the patient requested. The review of a rights violation in an individual application and the conditions of private-law liability lie on different planes.
Which patient records should be collected
A request for the patient file must be specific. Besides the discharge summary (epikriz), the first examination, operation note, anaesthesia form, vital sign follow-up, nursing observations, medication administration times, consultations, consents and discharge recommendations may be requested. Depending on the type of procedure, pathology material, implant information, imaging files and laboratory results become important. The date range and departments of the records requested should be stated clearly. [4]
e-Nabız is an important starting source, but it is not a complete copy of all in-house records. The absence of a test from that system does not prove that the test was not performed. If there is a difference between the record from the healthcare institution and the system output, the date, the record type and the explanation are examined. Original photograph files and the technical data of imaging studies may allow a more comprehensive review than screenshots.
Claim that a record is missing or was altered later
A missing record does not automatically mean that the whole compensation claim must be accepted. However, if a decisive document was not kept or is not produced, that may affect the evaluation of proof. Under HMK Articles 219–221, production of a document may be requested; if the conditions in Article 220 are met, the court may evaluate the other party’s statement about the content of the document. [2]
If a date or content inconsistency is seen, a request should be made for the original of the record, information on its creation and modification, the relevant system data, and a comparison with other documents. It is not correct to describe every spelling correction as forgery. The claim must be framed so as to show which record is unreliable and for what reason. Documents should be obtained through the lawful routes of production and inspection, not through unlawful access.
What preservation of evidence and an independent expert opinion achieve
Revision surgery or the removal of an implant may make the later evaluation of the existing condition more difficult. Where there is a risk that evidence will be lost, or that its presentation will become considerably more difficult, preservation of evidence may come into question under HMK Articles 400 et seq. Necessary treatment and urgent intervention should therefore not be postponed. Where appropriate, the condition before treatment, the physician’s records and material information are preserved. [2]
Under HMK Article 293, a party may obtain a scientific opinion from its own expert. This opinion does not have the same procedural position as the report of an expert appointed by the court, and it does not bind the court on its own. Its value depends on the expert’s field, the records examined, the method used and the response given to opposing views. A text that only states a result favourable to the case, without discussing the records, does not remedy the gaps in the file.
Unfavourable records should also be presented to the independent expert. Withholding earlier illnesses, discrepancies between the patient’s own statements or subsequent interventions weakens the reliability of the opinion. The expert opinion should concentrate on medical questions rather than legal characterisation, and should identify the questions the expert could not evaluate and any additional documents needed.
What is expected of an expert report
The expert’s field of expertise must match the real subject of the dispute. Anaesthesia monitoring, plastic surgery, neurology, obstetric management or dental implants may each require a different specialty. Where claims concern several stages, the relevant specialties may need to evaluate them together. There is no single rule that every file must have a report from the same institution or from the same number of persons. [2]
A reviewable report includes the records examined, the patient’s history, the standard at the date of the event, appropriate and inappropriate conduct, the assessment of causation and answers to the objections. Where the conclusion and the explanations conflict, the contradiction must be resolved. The basis for a statement that something “conforms to the literature” must be understandable. The expert is not expected to take the place of the court on questions of legal liability, duties or limitation periods.
Useful questions when preparing a report include:
- Are the indication for the intervention and the chosen method confirmed by the records?
- Were the risks and alternatives specific to the patient evaluated?
- From which record can the start and duration of the alleged delay be understood?
- Which part of the harm is attributed to the natural course of the illness and which part to the intervention?
- Have the management of the complication and the consent objection been answered separately?
- How do subsequent treatments affect the evaluation of the initial intervention?
Objection period and the content of an effective objection
Under HMK Article 281, the parties may, within two weeks of service of the expert report, request that missing matters be completed, that unclear points be explained or that a new expert be appointed. Where the objection requires technical work or is very difficult or impossible to prepare, an additional period of no more than two weeks may be granted once, if applied for within that same period. An additional period is not automatic. [2]
An effective objection identifies the defect by showing the relevant page or section of the report. For example, if the messages in which the symptoms were first reported were not examined, their dates and contents should be set out; it is not enough to say “we do not accept the report”. Where two reports conflict, it should be shown which document each of them evaluated differently. It cannot be assumed that a new report may be obtained without limit after every unfavourable report; a concrete reason for the need must exist.
This period is the regulation of HMK for civil litigation. For a report served in administrative litigation, İYUK Article 31 must be examined together with the notification made and the court’s procedural acts. The procedure for a report in a criminal file is also different. It should not be assumed that an objection made in one file is automatically deemed to have been made in the others. [7]
Why the opposing decision matters
In 6th Civil Chamber of the Court of Cassation (Yargıtay 6. Hukuk Dairesi), February 2, 2026, E.2025/763, K.2026/318, the rejection of a compensation claim concerning an aesthetic breast procedure was largely upheld. The reports obtained after the remand assessed the procedure undertaken, the consent and the management of the complication. The dissenting opinion, however, interpreted differently the consistency of the consent with the procedure performed and the fulfilment of the promised result. [6]
This decision shows that a detailed examination does not always end in the patient’s favour. It also shows that the dissenting opinion should not be presented as if it were the majority judgment. In the file, the right question is not only whether a new report can be requested, but whether the existing report actually answers the decisive claim.
How the proof file can be organised
After the documents are arranged chronologically, a separate link should be established for each claim: event, document, medical question, defence and harm. For example, for the claim that “the check-up was delayed”, the first complaint message, the reply about the appointment, the subsequent examination and the record explaining the effect of the delay should be placed in the same group. In this way, the relationships among hundreds of documents can be seen.
Health data are special categories of personal data. The file should be shared only with the persons who need it, and by secure methods, and records of others should not be copied needlessly. Sending documents to a lawyer does not by itself mean that the matter has been accepted. Protecting the proof does not require the person to give up their privacy.
Conclusion
Proving malpractice requires more than explaining a bad outcome. The medical standard, consent, follow-up, harm and causation must be linked to the records under separate headings. A strong file also addresses the documents that do not support its own claim and focuses on the real gaps in the expert report. Preserving evidence early and making objections to the report specific and timely are the essential steps that keep the legal assessment sound.
Frequently Asked Questions
Can a lawsuit be filed without a Council of Forensic Medicine report?
Yes. Filing a lawsuit does not in every case require a Council of Forensic Medicine report to be obtained in advance. The court arranges the expert examination that the dispute requires, in accordance with the procedure.
Is it enough for another doctor to say there was an error?
Not by itself, and it does not produce a definitive result. It is important that the opinion examines the records, falls within the expert’s field and explains its medical reasoning.
If there is no consent form, is the case certain to be won?
No. Disclosure, the applicable formal requirements, the circumstances of the intervention, the harm and the legal basis of the claim are assessed together. The absence of a document can be a serious proof issue.
Is preservation of evidence always required before a corrective operation?
Not in every case. It is considered where there is a risk that evidence will be lost; necessary treatment is not delayed. Recording the condition before treatment may be useful.
What is the time limit for objecting to an expert report?
Under the HMK, as a rule it is two weeks from service of the report. An application for an additional period that meets the conditions must also be made within the initial period; procedures in other branches of jurisdiction are checked separately.
Can messages and photographs serve as evidence?
Yes, within the framework of HMK Article 199 they may have the character of documents. Their authenticity, context, lawful acquisition and consistency with other evidence are assessed.
Sources and legal bases
[1] Republic of Türkiye, Law No. 6098, Turkish Code of Obligations (Türk Borçlar Kanunu), Articles 49–50, 112, 115–116 and 506. Current text.
[2] Republic of Türkiye, Law No. 6100 on Civil Procedure (Hukuk Muhakemeleri Kanunu), Articles 190, 199, 219–221, 266, 281–282, 293 and 400–406. Current text.
[3] Zeynep Özcan and Ayşe Betül Özcanoğlu, “Problems of Proof Linked to the Distinction Between Malpractice and Complication in the Light of Court of Cassation Precedents” (Yargıtay İçtihatları Işığında Malpraktis Komplikasyon Ayrımına Bağlı İspat Sorunları), Uyuşmazlık Mahkemesi Dergisi (Journal of the Court of Jurisdictional Disputes), 2020, No. 16, pp. 289–315, DOI:10.18771/mdergi.848412. Article.
[4] Ministry of Health, Patient Rights Regulation (Hasta Hakları Yönetmeliği), in particular Articles 15–18, 24, 26 and 31. Ministry text.
[5] Constitutional Court, First Section, Elif Öztürk, Application No. 2021/22380, May 14, 2025, in particular §§22–27. Official record; accessible full-text transcript.
[6] Court of Cassation, 6th Civil Chamber (Yargıtay 6. Hukuk Dairesi), February 2, 2026, E.2025/763, K.2026/318; majority decision and dissenting opinion. Ministry of Justice decision text.
[7] Republic of Türkiye, Law No. 2577, Administrative Procedure Law (İdari Yargılama Usulü Kanunu), Article 31. Current text.