KÜHEYLAN HUKUK
Medical Error in a State Hospital: Full Jurisdiction Case Filed Against the Administration, Not the Physician. Informed consent, expert reports, application period to the administration and moral compensation. This guide has been prepared according to the current version of Law No. 657, Article 13, Law No. 2577, Article 13 and the jurisprudence of the Council of State as of October 2026.
A compensation lawsuit cannot be filed against a physician due to medical errors occurring in public health institutions such as a state hospital or training and research hospital. In case of damages arising from the fault of a public official physician, the lawsuit is filed as a full jurisdiction lawsuit against the relevant institution and in the administrative jurisdiction. Before the lawsuit, a written application to the administration is mandatory within one year from learning about the incident (in any case within five years from the incident). This guide explains the difference between malpractice and lack of informed consent, the weight of expert reports, and the difference of opinion within the Council of State.
1. Against whom should the lawsuit be filed?
The first question in medical malpractice claims is whether the hospital is public or private. Health care provided in state hospitals, training and research hospitals affiliated with the Ministry of Health and similar public institutions is a public service.
According to Article 13 of the Civil Servants Law No. 657, individuals can file a lawsuit against the relevant institution, not against the personnel performing these duties, for the damages they suffer in connection with duties subject to public law. The institution reserves the right to appeal to the responsible personnel in accordance with the general provisions. For this reason, instead of filing a lawsuit for compensation directly against the doctor working in a public hospital, a full jurisdiction lawsuit is filed against the administration.
The last paragraph of Article 125 of the Constitution states that the administration is obliged to pay the damages arising from its own actions and transactions. Article 2/1-b of Law No. 2577 counts full jurisdiction cases filed by those whose personal rights are directly affected by administrative actions among the types of administrative cases.
2. What is a Service Defect? How to Find a Medical Error?
According to the Council of State, service defect is an objective disorder, malfunction or gap in the establishment, organization or operation of the service that the administration is responsible for providing. It occurs when the service operates poorly, operates late, or does not operate at all. This fault is an anonymous and objective fault, independent of the personal fault attributed to a particular physician.
In health care, the administration's obligation to compensate is mainly based on service defects. The Council of State states that the administrations responsible for health are obliged to carry out the service with trained personnel in facilities equipped with sufficient tools and equipment. The following examples stand out in the decisions.
Delay in diagnosis and treatment: Failure to perform the necessary examination on time or not to refer the patient on time.
Incorrect or incomplete intervention: Surgery, injection or drug administration contrary to medical rules.
Inadequate equipment and organization: Lack of necessary equipment, personnel or intensive care facilities. Council of state
10th Chamber deemed the absence of a night vision system in the air ambulance as a service defect (E.2023/2108, K.2023/7669, 30.11.2023). Lack of informed consent: Performing a procedure without explaining the risks before the intervention.
According to the Patient Rights Regulation, medical intervention must be based on the patient's consent after being informed and informed. Article 15 of the regulation lists the information to be given to the patient: possible causes of the disease, how and by whom the intervention will be performed, other treatment options, possible complications, consequences of refusal, etc. Article 22 states that medical intervention cannot be performed without consent and in accordance with the consent given. Article 31 regulates the scope of consent.
In its decision dated 04.02.2026 (E.2023/1686, K.2026/332), the 10th Chamber of the Council of State examined the non-pecuniary compensation claim of the relatives of the patient who was operated on four times due to brain tumor and then died. The decision of the chamber is twofold. The rejection of the request for financial compensation was approved. However, since the absence of an informed consent document explaining the complications before the surgeries in the file would cause concern and sadness in the relatives that the service was not carried out properly, the court's rejection of non-pecuniary compensation without investigating this document was considered an incomplete examination and this part was overturned.
The Council of State also rejected financial compensation in a similar injection file (sciatic nerve damage), but overturned the non-pecuniary compensation part on the grounds that it should be investigated whether informed consent was obtained (10th Chamber, E.2019/5449, K.2022/1585). The Regional Administrative Court insisted on its previous decision, and the Administrative Case Chambers Board approved the insistence decision by majority vote (E.2023/561, K.2024/2341, 16.10.2024). In the dissenting vote, it was stated that if the consent form was not in the file, the patient's right to be informed and give consent was taken away and moral compensation was required.
These two approaches are different from each other and the unity of jurisprudence has not yet been established.
In medical malpractice cases, whether or not there is a service defect is actually revealed by expert reports. Administrative courts usually request a report from the Forensic Medicine Institute's specialized board and the Ministry of Health's High Health Council. In the decisions of the Council of State, it is seen that the reports of the Forensic Medicine Institute's specialized board, the Supreme Health Council and, when necessary, the Forensic Medicine Institute's General Assembly are received (for example, E.2021/4085, K.2025/621, 18.02.2025). Requesting a report from the supreme board on the grounds that there are contradictions between the reports is also a common request in the files (for example, E.2024/531, K.2024/504, 05.03.2024).
Detection of complications in the report may not result in favor of the patient. In the injection case in the İDDK decision, the Forensic Medicine Institute stated that neuropathy is a complication of the injection that can be seen despite all care, and financial compensation was rejected for this reason. When objecting to the report, it is necessary to focus not only on the result, but also on the medical records on which the report is based, the literature used and its contradictory aspects.
Written application to the administration 1 year from learning about the incident, in any case 5 years from the incident Law no. 2577 art.13/1
Administration's response 30 days (if there is no response, the request is considered rejected) Law no. 2577 art.13/1
sue Period for filing a lawsuit starting from the rejection notification or the end of the 30-day period (60 days) Law no. 2577 art.13/1; Article 7
A lawsuit filed without an application is rejected on procedural grounds. If a full jurisdiction case filed in the non-jurisdictional judicial judiciary is rejected due to jurisdiction, there is no requirement to apply to the administration in the case to be filed later in the administrative judiciary (Law No. 2577 art. 13/2).
Financial compensation: Treatment expenses, loss of ability to work, care expenses, compensation for loss of support in case of death.
Non-pecuniary compensation: According to the Council of State, non-pecuniary compensation is not a means of enrichment, but a means of moral satisfaction. The amount is determined by taking into account the severity of the administration's fault and its relevance to the incident. Grief arising from not receiving the service as required may also be considered sufficient for moral damage.
The following scenario is fictional; It has been prepared to explain a typical situation in practice.
In a fictional example, a patient who has hip surgery in a public hospital experiences numbness and loss of strength in his leg for a long time after surgery. The patient was not signed a consent form explaining the complications before the surgery. Surgery notes are also missing.
A compensation lawsuit cannot be filed against the physician in the judicial judiciary. First, hospital records and surgery notes are requested, a written application is made to the administration, and if there is no response, a full jurisdiction lawsuit is filed in the administrative court after 30 days. Even if the expert report states that the procedure complies with medical rules, a claim for non-pecuniary damages based on lack of informed consent should be made separately. However, since there is a difference of opinion within the Council of State on this issue, the request must be carefully justified.
Can I directly file a lawsuit against the doctor at the public hospital?
No. For damages caused during the performance of public duty, the lawsuit is filed in administrative jurisdiction against the relevant institution. The personal criminal liability of the physician is the subject of a separate criminal investigation.
Is it mandatory to apply to the administration before filing a lawsuit?
Yes. A written application must be made to the administration within one year of learning about the incident and, in any case, within five years of the incident.
If there is a medical error in a private hospital, will the same procedure be followed?
No. The relationship between the private hospital and the patient is subject to private law and the case is filed in the judicial judiciary. This guide is about public hospitals.
If the expert report says there is no mistake, will the case end?
Not always. The report may be objected to, and in case of an additional report or conflict, a report may be requested from the supreme board. An independent basis such as informed consent may also be examined.
Filing a lawsuit against the physician: In public hospitals, this option is closed to the administrative judiciary; the lawsuit filed in the judicial judiciary may be rejected due to duty reasons.
Skipping the application to the administration: A case filed without an application will be rejected.
Just saying "a mistake was made": The lawsuit must show with records how the incident turned into a medical malpractice.
In cases of medical malpractice claims in a public hospital, the lawsuit is filed against the administration, not the physician, therefore the judicial remedy, duration and evidence strategy must be established correctly from the beginning. The decisions of the Council of State consider service fault and lack of informed consent as separate grounds, but there is no unity of jurisprudence on the second issue yet. Küheylan Law Firm plans the process together, from the collection of medical records to the application to the administration, from the audit of expert reports to the conduct of the full judicial case.
Important Legal Notice: The legal explanations contained in this guide have been prepared by Küheylan Law Firm for general information purposes and do not constitute legal advice. Since the unique circumstances of each file may change the outcome, it is recommended to seek support from an administrative law and health law lawyer from the beginning of the process.
KÜHEYLAN HUKUK