ORIGINAL ARTICLE. Umit N. Gundogmus,* Mehmet S. Erdogan, Mine Sehiralti, Omer Kurtas*

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1 ORIGINAL ARTICLE A descriptive study of medical malpractice cases i Turkey Umit N. Gudogmus,* Mehmet S. Erdoga, Mie Sehiralti, Omer Kurtas* BACKGROUND: Medical malpractice claims i Turkey have icreased. We evaluated the problem by describig medical malpractice cases assessed by the Higher Health Coucil betwee 1993 ad Our recommedatios should help to improve care ad decrease medical malpractice claims. METHODS: We reviewed 997 medical malpractice cases reported to the Higher Health Coucil betwee 1993 ad 1998 ad examied the decisios made by the Higher Health Coucil. We collected data o demographic characteristics, such as the type of the istitutio where the defedats worked, type of medical malpractice, ad medical outcome. RESULTS: There were 997 medical malpractice cases reported to the Higher Health Coucil i the six years betwee 1993 ad The Higher Health Coucil decided that 47.7% of the physicias were liable. Malpractice cases were mostly see i state hospitals (42.4%). Fiftyie percet of the cases resulted i death. Amog actios that led to malpractice lawsuits agaist all health care workers, icludig physicias, the most commo were egligece, iappropriate treatmet, ad diagostic failure. CONCLUSION: We thik it is ecessary to revise the health system ad workig coditios i hospitals ad to develop cliical practice guidelies. We are of the opiio that a emphasis o the use of diagosis ad therapy protocols, stadards, post-graduatio educatio, clear ad iformed patiet coset, ad improved commuicatio with patiets will drastically decrease medical malpractice claims. From Kocaeli Uiversity Medical School, *Departmet of Foresic Medicie, Departmet of Public Health, Departmet of Medical Ethics Correspodece: Dr. Umit N Gudogmus Kocaeli Uiversity, Tip Fak Adli Tip AD Derice Kocaeli, Turkey Tel: Fax: ugudogmus@yahoo.com Accepted for publicatio May 2005 A Saudi Med 2005;25(5): Icreased awareess of patiet ad cosumer rights, the developmet of medicie, ad moder complicated medical applicatios have icreased the umber of medical malpractice claims. 1-3 Curretly i Turkey, medical malpractice cases are tried accordig to crimial ad civil law. The damage ad death caused by medical malpractice is ivestigated i the ame of public accordig to crimial law. Expert testimoy is obligatory at medical malpractice trials i crimial courts. The courts ca receive a expert opiio from ay source, icludig the Higher Health Coucil. The Coucil icludes 11 medical specialists ad 5 civil servats from the Miistry of Health. Decisios are made oly whe two-thirds of the members agree. Expert opiio from the Higher Health Coucil does ot ecessarily determie court decisios i medical or other types of cases. 4-7 Whe health care workers are foud liable, the law requires that they are seteced to imprisomet or fied. Fies are based o the Compesatio Act. However, i practice, health care workers who are foud liable are ot usually seteced to imprisomet i the absece of real itet uless there has bee repeated medical malpractice. 4-7 Health care workers i Turkey do ot have medical malpractice 404

2 isurace. The govermet pays compesatio to plaitiffs or their relatives whe a healthcare worker who is foud liable works i a state istitutio. However, the sum or part of the compesatio may be deducted from the health care workers salary at certai itervals, so their stadard of livig is ot affected. I Turkey, the adoptio of regulatios for patiets rights, a icreasig awareess of patiets rights, ad high levels of compesatio have led people to isist o their ow rights ad to questio the health care system i the coutry. 4-7 I this study we describe medical malpractice cases, which have icreased i umber compared with previous reports ad our observatios. We reviewed ad evaluated the problem from various poits of view i order to offer recommedatios for improvig care ad reducig the umber of medical claims. Methods The database developed for this study came from the case court summaries of the Higher Health Coucil dealig with medical malpractice cases reported betwee 1993 ad The ivestigatio was limited to this period sice the limitatio period is six years i Turkey. The case court summaries icluded iformatio such as questios of the court, a brief case report, the existece of fault, ad persos at fault. Case court summaries icluded medical records ad the statemets of plaitiffs ad defedats. I this study, the specialty, workplace, ad type ad characteristics of fault of accused health care workers were obtaied from the files of the case court summaries. Data were collected betwee Jauary ad May of Durig this period the decisios of the Higher Health Coucil ad case court summaries were peer reviewed ad data were trasferred ito a database for the study. The variables of the study, settig of case, occupatio of accused perso, type of fault, ad size of damage are categorical. Type of fault was classified as egligece, iappropriate itervetio, diagostic failure, follow-up failure ad practice beyod the scope of professioal licesure. Negligece was determied as ot iterveig eve if demaded, beig late with a itervetio, ot takig measures for lack of techical equipmet, ad beig careless. The frequecies ad percetages of variables were calculated. Data were aalyzed with SPPS versio 10. Results There were 997 medical malpractice cases reported to the Higher Health Coucil i the six-year period betwee 1 Jauary 1993 ad 31 December The Higher Health Coucil foud that 476 health care workers were liable (47.7% of health care workers sued) (Table 1). State hospitals, with 395 cases (39.6%), were first i rak i istitutios where the defedats had worked. Social security hospitals ad private hospitals followed with 207 (20.8%) ad 113 (11.3%) cases, respectively. State hospitals were first i istitutios metioed i the litigatios, costitutig 42.4% of cases. Social security hospitals (18.5%) ad private hospitals (12.0%) raked ext i order (Table 1). Most of the sued health care workers were i the field of gyecology ad obstetrics (19.0%) (Table 2). Geeral surgery took secod place (13.0%) while geeral practitioers were i the third place (12.2%). Health care workers except physicias (urses, midwives, laboratory workers, aesthesiology techicias) were the most faulty (63.4%). Aesthesiologists, geeral surgeos, ad obstetricias ad gyecologists were ext most faulty (Table 2). Negligece was the most commo fault, costitutig 25.0% of prove faults (Table 3). Iappropriate itervetio ad diagostic failure were secod ad third. Daigostic failure was most commo i state hospitals followed by isurace hospitals ad military hospitals (Table 3). Health care persoel who were foud guilty because of egligece, isufficiet treatmet, ad isufficiet follow up (53.4%) were mostly workig at state hospitals, while the most who were guilty of uauthorized itervetio were workig at doctor s offices. More tha fifty percet of cases resulted i death (59.0%), 21.0% i temporary disability, ad 20.0% i persistet disability. Table 1. Distributio of malpractice cases by settig (=997) Settig Liable () % of total liable Not liable () % of total ot liable State hospital Social security hospital Private hospital Doctor s office Military hospital Uiversity hospital Outpatiet cliic Village cliic Home Military outpatiet cliic Pharmacy Total

3 Table 2. Distributio of malpractice cases by speciality ad liability Gyecology ad obstetrics Liable Not liable Total % of total for specialty % of total for specialty % of total cases Geeral surgery Geeral medicie Orthopedics Iteral medicie Ophthalmology Pediatrics Neurosurgery Aesthesiology ENT Others Health care workers except physicias Total Table 3. Distributio of cases by settig ad type of liability for 476 cases deemed liable. Diagostic failure (%) Isufficiet treatmet (%) Isufficiet follow-up (%) Iappropriate treatmet (%) Uauthorised itervetios (%) Negligece (%) State hospital 34 (32.3) 20 (51.3) 31 (53.4) 36 (31.9) 8 (19.1) 73 (61.3) Social security hospital 25 (23.8) 5 (12.8) 17 (29.3) 22 (19.5) 2 (4.8) 17 (14.3) Private hospital 14 (13.3) 6 (15.4) 2 (3.4) 24 (21.2) 5 (11.9) 6 (5.0) Village cliic 1 (2.5) 1 (2.4) 3 (2.5) Home 1 (1.0) 3 (7.7) 2 (3.4) 6 (5.3) 3 (7.1) 1 (1.0) Outpatiet cliic Uiversity hospital 3 (2.9) 1 (2.5) 1 (2.0) 4 (3.5) 3 (7.1) 2 (2.0) 2 (5.1) 3 (5.1) 3 (2.7) 2 (4.8) 1 (1.0) Military hospital 16 (15.2) 6 (5.3) 6 (5.0) Doctor s office 3 (2.9) 1 (2.5) 2 (3.4) 11 (9.7) 18 (42.9) 5 (4.2) Military outpatiet cliic 7 (6.6) 2 (1.7) Pharmacy 1 (0.1) 5 (4.2) Total (% of all cases) 105 (22.1) 39 (8.2) 58 (12.2) 113 (23.7) 42 (8.8) 119 (25.0) 406

4 The rate of filig malpractice lawsuits because of deaths or permaet disability was 79.0%. Discussio I crimial trials i Turkey, askig the opiio of the Higher Health Coucil is a must i cases of alleged medical malpractice. Courts established for compesatio trials ca receive expert opiio from ay source, icludig the Higher Health Coucil. Fidigs obtaied from the assessmet by the Higher Health Coucil are probably sufficiet to aalyse medical malpractice i Turkey. 1,4,7 Compared with claims from wester coutries, the umber of medical malpractice claims i Turkey over the six-year period is very small. 3,8-12 The small umber of medical malpractice claims could be due to the lack of awareess of people about health issues. People i Turkey usually leave the right of fial decisio to doctors o issues cocerig the patiet due to a pateralist attitude ad the huge amout of cofidece placed i doctors i Turkey. Besides, the religious belief i fate dampes the iitiative of the patiet o such issues. Delays i justice due to bureaucracy could be aother reaso for the small umber of medical malpractice claims. I fact, the more people are becomig aware of good medical care, the more they are demadig it. Lookig at the problem from various perspectives i order to see the reaso behid this uprecedeted icrease i these cases ca be helpful. Health care workers i Turkey do ot have medical malpractice isurace. I 2002 there were attempts to draft a medical malpractice isurace law, but it has ot bee accepted by the Turkish Parliamet. 13 However, without chagig the root causes of litigatio, the provisio of isurace aloe would lead to higher premiums as time goes o. Isurace compaies are i the market to make ad ot lose moey. The ifluece of the isurace compaies may result i a icrease i the umber of litigatios i time The Higher Health Coucil foud that 47.7% of health care workers sued for medical malpractice were liable. Alsaddique poited out that i 3% of cases i Saudi Arabia, physicias were foud liable ad damages were awarded. 14 I Japa, medical malpractice plaitiffs prevailed i fewer suits (31.9%). 3,15 The success rate for plaitiffs i medical malpractice suits i the Uited States was 28% ad i Germay 16.7%. 8,9 Despite these low success rates, US medical liability systems are i a state of crisis i may states. I Turkey, suig a healthcare worker is ot a usual practice, but people resort to it whe major damage occurs ad the fault of the health care provider is apparet. That is why the mortality ad permaet disability rates i our study were much higher tha temporary disability rates. More tha half of the health care workers were foud iocet. I other words, it was decided that the uwated complicatios were atural oes or could ot be regarded as the fault of the health care worker. Cosiderig that medical malpractice claims maily depeded o ividual complaits, the existece of problems with clear ad iformed coset ca be argued because it is commoly kow that iformed coset ad commuicatio with the patiet help prevet medical malpractice claims. 16,17 Studies i various coutries have cofirmed this. 8,17 Though iformed coset is madatory i Turkey, based o laws ad the regulatio o patiet rights, lack of iformed coset seems a frequet problem i Turkey. Most of the health care workers sued i Turkey were from the field of obstetrics. Geeral surgery took secod place, while geeral medicie was i third place. These fidigs are similar to those from Saudi Arabia: obstetrical practice has take the lio s share of medical malpractice cases, with geeral surgery followig. Obstetrical malpractice is the leadig cause i most of istaces of medical malpractice worldwide. 14 Most of the medical malpractice cases i Turkey were brought from state hospitals, although state hospitals i Turkey do usually meet the stadards of ay health care facility. Hospitals i Turkey have a heavy patiet populatio who come mostly from a ofuctioal patiet referral system. Patiets usually udermie the system, avoidig primary care ceters ad apply directly to hospitals, mostly state hospitals, for care. Such circumstaces cause overcrowded hospitals, restrictig the time spet o ay oe patiet o average, which could result i medical malpractice idirectly. Additioally, doctors workig i state hospitals ca also have their ow private practice. The time cosumed i private practice may cause doctors to delay or eglect some medical ad surgical procedures i hospitals. Uauthorised itervetio ad diagostic failure were the secod ad third cotributig factors i 23.7% ad 22.1% of liable cases, respectively. If uauthorised itervetio ad diagostic failure were cosidered together (45.8%), it ca be cocluded that approximately half of health workers fail to follow advaces i medical sciece ad kowledge. Cotiuig medical educatio seems a importat eed i prevetig medical malpractice. 407

5 Recommedatios ad Coclusios More tha half of health care workers were foud to be iocet. The high rate of iocet cases makes us thik that lack of iformed coset is the cause of most medical malpractice claims. Idepedet iformed coset ad clear commuicatio with the patiet could prevet most of the medical malpractice claims To prevet iappropriate itervetio ad diagostic failure, health care workers should always try to be curret i their kowledge. Cotiuig medical educatio is defiitely eeded to keep up with advaces i medical care. The lack of cliical practice guidelies i our coutry makes it difficult to examie medical malpractice claims, leadig to a risk of subjective decisios ad the loss of rights for doctors ad patiets. Practical guidelies could limit variatios i practice betwee health care providers, icrease the quality of care ad provide for actig i accordace with priciples of justice ad beefit. 18 Guidelies could be useful i decidig cases of atural complicatio versus medical errors i regard to medical malpractice claims ad lead to a decrease i the umber of medical malpractice claims ad the costs by prevetig uecessary procedures The draft law titled Law o Liabilities Arisig From Medical Malpractice of Medical Services will be i force i the ear future. 22 The ew legislatio is a positive step for lifelog medical educatio ad prevetig malpractice. We are of the opiio that a emphasis o followig ad supervisig the use of diagosis ad therapy protocols, stadards, post-graduate educatio, clear ad iformed patiet coset, ad improved commuicatio with patiets will drastically decrease malpractice claims. Cosiderig the results of this research, we thik that it is ecessary to revise the health system ad workig coditios i hospitals ad to develop cliical practice guidelies. Refereces 1. Güdŏgmuş ÜN, Ersoy N, Biçer Ü. Yüksek sağlık şurası kararlarıı etik açıda değerledirilmesi (Aalysis of the higher health coucil s decisios i respect of ethics). Toplum ve Hekim. 1998;13: Marti-Casals M, Igualada JL, Feliu JS. Medical malpractice liability i spai: cases, treds ad developmets. Europea Joural of Health Law. 2003;1: Nakajima K, Keyes C, Kuroyaagi T, Tatara K. Medical malpractice ad legal resolutio system i Japa. JAMA. 2001;285: Aşcıoğlu Ç. Tıbbi yardım ve el atmalarda doğa sorumluluklar (The resposibilities due to medical assistace). Akara: Tekışık Ofset Tesisleri. 1993: Aya M. Tıbbi müdahalelerde doğa hukuki sorumluluk (The legal resposibilities occurrig medical attempts). Akara: Kazacı Matbaacılık Saayi AŞ. 1991: Durdu H. Sağlık mesleğide hukuki sorumluluk (The legal resposibilities i health professio). I zmir: Uğur Ofset. 1986: Güdoğmuş ÜN, Bilge Y, Kedi Ö, Hacı I H. Hekimleri yasal sorumluluğuu yüksek sağlık şurası açısıda irdelemesi (Physicias legal resposibility accordig to the high health coucil). The Bulleti of Legal Medicie. 1997;2: Maier C. Arzthaftug Versicherugsmedizi. 2001;53: Jost TS. Schlichtugsstelle ad Gutachterkomissioe: the Germa approach to extrajudicial malpractice claims resolutio. Ohio State Joural of Dispute Resolutio. 1996;11: Roseblatt RA, Weitkamp G, Lloyd M, Schafer B, Witerscheid LC, Hart LG. Why do physicias stop practicig obstetrics? The impact of malpractice claims. Obstet Gyecol. 1990;76: Rothschild JM, Federico FA, Gadhi TK et al. Aalysis of medicatio related malpractice claims: causes, prevetability ad costs. Arch Iter Med. 2002;162: Kravitz RL, Rolph JE, McGuiga K. Malpractice claims data as a quality improvemet tool. I. epidemiology of error i four specialties. JAMA. 1991;266: Buke NO, Buke E. The legal ad ethical aspects of medical malpractice i Turkey. Eur J Health Law. 2003;10: Alsaddique AA. Medical liability. The dilemma of litigatios. Saudi Med J. 2004;25: Hagihara A, Nishi M, Nobutomo K. Stadart of care ad liability i medical malpractice litigatio i Japa. Health Policy. 2003;65: Coy K, Stratto R. Avoidig your greatest fearmalpractice. J Okla Detal Assoc 2002;93: Campbell WB, Frace F, Goodwi HM. Medicolegal claims i vascular surgery. A R Coll Surg Egl. 2002;84: Kig JY. Practice guidelies medical malpractice litigatio. Med Law. 1997;16: Harla D. The implicatios of practice guidelies for physicia medical malpractice liability. Physicia Exec. 1994;20: Merritt TA, Gold M, Hollad J. A critical evalvatio of cliical practice guidelies i eoatal medicie: does their use imprave quality ad lower costs? Joural of Evaluatio i Cliical Practice. 1999;5: Tzeel A. Cliical practice guidelies ad medical malpractice. Physicia Exes. 2002;28: Civaer M. Malpraktise yöelik yasal düzeleme: Temel oktalar (Orieted to malpractice legal requlatio: basic poits) Hekimde Hekime. Akara Tabip Odası Yayıı. 2002: