Physician Professional Liability Insurance in Plastic Surgery

Abstract

Plastic surgeries have played an important role in the elimination of congenital or subsequent deteriorations in the human body for thousands of years. As civilization moved towards a modern age of technology, the scope and functions of the modern plastic surgeon also improved. This situation has led to the use of plastic surgery for different purposes. In this paper, while compliance with laws of aesthetic interventions will be discussed over the concept of medical intervention, the reflections of this discussion on insurance law will be emphasized. Then, the legal responsibility of plastic surgeons and the concept of risk undertaken by insurance due to this responsibility will be explained. Finally, whether plastic surgeries are covered by insurance will be examined within the scope of insurance law regulations in force in Turkey.

Keywords: Plastic Surgery, Aesthetic Interventions, Physician Professional Liability Insurance, Risk, Medical Intervention, Responsibility, Contract of Work, Guaranteed Result, Strict Liability

Özet

Estetik ameliyatlar binlerce yıldır insan vücudunda doğuştan veya sonradan meydana gelen bozulmaların giderilmesinde önemli rol oynamıştır. Medeniyet modern bir teknoloji çağına doğru ilerledikçe, modern plastik cerrahın kapsamı ve işlevleri de gelişti. Bu durum plastik cerrahinin farklı amaçlarla kullanılmasına neden olmuştur. Bu bildiride, tıbbi müdahale kavramı üzerinden estetik müdahalelerin yasalara uygunluğu tartışılırken, bu tartışmanın sigorta hukukuna yansımaları üzerinde durulacaktır. Ardından plastik cerrahların hukuki sorumluluğu ve bu sorumluluk nedeniyle sigortanın üstlendiği risk kavramı anlatılacaktır. Son olarak Türkiye'de yürürlükte olan sigorta hukuku düzenlemeleri kapsamında estetik ameliyatların sigorta kapsamında olup olmadığı incelenecektir.

Anahtar Kelimeler: Plastik Cerrahi, Estetik Müdahale, Hekim Mesleki Sorumluluk Sigortası, Risk, Tıbbi Müdahale, Sorumluluk, Eser Sözleşmesi, Garanti Edilen Sonuç, Kusursuz Sorumluluk

Introduction

Plastic surgery has made progress in our country as well as in the rest of the world in recent years. The reason for this progress is that people prefer plastic surgery for different purposes. The changing perception of beauty in the modern world also affects these preferences of people.

While these developments were taking place, the solution to legal disputes that may arise in plastic surgeries was not emphasized, and the responsibility of plastic surgeons, like the responsibility of other physicians, was not regulated separately in our laws. These gaps, which are tried to be filled by the regulations of the Code of Obligations, have been shaped by the decisions of the Supreme Court. As a result of this situation, the contract between the patient and the plastic surgeons was accepted as a contract of work, and the plastic surgeons were obliged to guarantee a result for their patients.

In addition to all these, while the necessity of aesthetic intervention and whether it is a legal medical intervention is being discussed, Physician Professional Liability Insurance has become mandatory. With Physician Professional Liability Insurance, the current situation has become more complicated and the question of whether the insurance will legally cover aesthetic interventions has become questionable and what exactly the risk is undertaken by insurance.

With this study, firstly, the status of aesthetic interventions will be examined through the definition of medical intervention, and then the scope of the responsibilities of plastic surgeons will be tried to be determined. It will be emphasized whether aesthetic interventions can be the subject of insurance in line with their purpose, and if they are included in the scope of professional liability insurance, the risks borne by the insurance. In the last part, the gaps related to the subject will be determined and the ways to go to the solution will be presented.

1. Plastic Surgeries

The history of plastic surgery in Turkey dates back to Şerafeddin Sabuncuoğlu in the 15th century. Şerafettin Sabuncuoğlu is the author of the first plastic surgical book in Turkish-Islamic literature.^[1] Although it had a stagnant period, plastic surgery gained momentum with the establishment of the national Turkish Plastic Surgery Society in 1961. Since then, plastic surgery has made a substantial figure in medicine with increasing studies and publications on it.

Although there is still no adequate definition of plastic surgery yet,^[2] it can be defined as surgery to correct all congenital or subsequent appearance disorders.^[3] It is also a surgical discipline that covers all kinds of aesthetic interventions. Cosmetics, aesthetic medicine, and aesthetic surgery are the most well-known parts of plastic surgery. Aesthetic interventions can be considered as a sub-branch of Plastic Surgery. While Plastic and Reconstructive Surgery primarily deals with health-related vital functions, in terms of aesthetic intervention techniques and principles, it focuses on improving the physical appearance of the person without harming the function. Increasing aesthetic appeal, and providing proportion and symmetry are the main goals. Plastic surgeons are surgeons who are authorized to perform the aesthetic intervention. Being a plastic surgeon requires both surgical and artistic skills and a long training.

There are also health problems that can be solved with plastic surgery as a result of aesthetic interventions. For example, reducing excessively large breasts proportionally to the body will solve both aesthetic and health problems of the person. The deformity to be corrected with rhinoplasty can be improved along with breathing problems. In that case, we can divide plastic surgeries into two for treatment and beautification purposes. Sometimes it is also possible to have both purposes together.^[4]

1.1. Plastic Surgeries for Treatment Purposes

Plastic surgery for treatment purposes is aimed at correcting the negative changes that occur in the human body congenitally or subsequently. It focuses on the treatment of shape and function disorders. For example, the treatment of cleft lip, cleft palate, hand and foot deficiencies, and deformities is the subject of plastic surgery.

In this study, we will not elaborate in detail on this title, as we will focus only on cosmetic surgeries for beautification purposes. The important point of our topic is to distinguish between these two surgeries which aim for different purposes.

1.2. Plastic Surgeries for Beautification

Plastic surgical operations for the beautification purpose aim to make the person look more beautiful despite there aren't any disorders.

With these interventions, it is ensured that the structure is made more beautiful without impairing the function of the organs. Although this kind of medical intervention has been practiced since ancient times, it has made great progress thanks to the surgeries performed to correct the bodily disorders of the injured, especially in the First-Second World War, and to repair tissue and organ losses.^[5]

Nowadays, it is frequently preferred especially, to eliminate the signs of aging. On the other hand, it is also preferred at an early age, to look more beautiful or to change the images that do not like. For example, forehead lift, eyebrow lift, all aesthetic procedures of the eyelid area, and apicoectomy are among these interventions.

1.3. Plastic Surgeries as a Medical Intervention

Medical intervention in the Patient Rights Regulation; “Practiced by persons authorized to practice the medical profession; It is defined as the physical and spiritual intervention carried out within the boundaries of medicine in accordance with the relevant professional obligations and standards for the protection of health and the diagnosis and treatment of diseases.^[6] Medical intervention means any activity performed by a person (physician) authorized to practice the medical profession, directly or indirectly, for treatment. It ranges from the simplest diagnosis and treatment methods to the most extensive and severe surgical operations.^[7] Surgical intervention, on the other hand, is a medical attempt to correct the disorders in the organ and therefore, the organism, made to cause physical changes directly on the organ or tissues.^[8]

As we explained under the title of plastic surgeries for beautification, surgical interventions for beautification purposes aim to give the person a beautiful appearance, not physical health and treatment. In this respect, if we review the definition of medical intervention; “Any activity performed by a person (physician) authorized to practice the medical profession, for treatment, directly or indirectly.” According to this definition, if the "treatment" is accepted as a mandatory and priority element, such plastic surgeries performed by the physician will not be considered a medical intervention, since it does not primarily aim at the treatment.^[9] There are views in doctrine which are accepting that all kinds of aesthetic interventions are "surgical interventions just to provide a beautiful appearance" and without making any distinction, plastic surgeries are against the law. Because, these argue that such interventions have "neither the aim of treatment, protection, or pain relieve".^[10] However, if we accept that the element of "direct or indirect treatment purpose" mentioned in the definition of medical intervention includes both physical and mental treatment, it means that plastic surgery is a medical intervention. Because, plastic surgery's purpose of an indirect treatment whether therapeutic, beautification or both.^[11]

In the doctrine, aesthetic medical interventions are divided into two aesthetic interventions aimed at eliminating bodily discomfort and aesthetic interventions for pure beautification, aimed at eliminating mental rather than physical ailments.^[12] It is accepted that plastic surgeries for beautification have a spiritual treatment purpose rather than a direct physical treatment purpose. In such aesthetic interventions, it is aimed to repair the disorders in the mental structure caused by the existing abnormality in the physical structure; put an end to the mental depression in which the person is in, restore the lost morale, and repair the spiritual personality. At the end of the surgery, the person gets more spiritual satisfaction and relaxation. Considering that general health should be evaluated as a whole consisting of the combination of physical and mental health, it should be concluded that aesthetic interventions are medical interventions.^[13]

It should not be overlooked that if a person consents to the operation, taking into account all the dangers and possible negative consequences, this should be considered a sign that he is in a serious negative psychological state due to the area he wants to be corrected or repaired. In other words, it should be accepted that a person who accepts to be operated on is affected more psychologically than other people, even though there are others in the same situation.^[14] For this reason, aesthetic surgeries for beautification should also be considered a medical intervention, since the purpose of psychological treatment is pursued in aesthetic surgeries performed to save the person from this negative situation.

In addition, medical intervention is a means of realizing the human right to health. The right to health is one of the basic human rights accepted to ensure that a person can live to a minimum standard of living worthy of human dignity. Being healthy; can be defined as being away from symptoms related to the disease, not having a disease or disability; being physically fit, and having psychological and social well-being. Health means not only the absence of disease and infirmity but also physical, mental, and social well-being. According to the definition by the World Health Organization, health; is not only the absence of disease and illness but also a state of complete physical, mental and social well-being.^[15]

The reason examined this topic in such detail is the ongoing debate over whether aesthetic interventions for beautification are for treatment or not. These discussions cast a shadow over the fact that plastic surgery is a legal medical intervention. This is a topic that we will examine under the heading of physician professional liability insurance.

2. Legal Responsibility of the Plastic Surgery Physician

The most important feature that distinguishes plastic surgery operations from other surgical operations is that these operations directly change the appearance of the person. Since beauty and aesthetic appearance are of great importance in plastic surgeries, the duty of attention and care of the surgeon who will perform the surgery increases; In addition to the responsibility of other surgeons, he/she also creates work like an artist by revealing his dexterity.^[16]

In Turkish law, there is no special regulation regarding the responsibility of neither the physician nor the plastic surgeon. Legal disputes that arise under the responsibility of aesthetic surgeons, as well as the responsibility of physicians, are tried to be resolved with the general provisions of the Code of Obligations.^[17] Accordingly, if there is a valid contract between the physician and the patient, the legal regulations regarding this contract for liability (and 96 and further articles of the Code of Obligations); in the absence of such a contractual relationship, articles 41 and the following regarding tortious act shall be applicable. According to these provisions, since the constitutive element of liability is the fault, liability arises for damage resulting from medical activities only if the fault is found.^[18]

The legal relationship between the physician and the patient constitutes the subject of the contract of mandate (treatment) according to the Court of Cassation decisions. However, when it comes to plastic surgeries, different ideas have been put forward in the legal doctrine, and the Court of Cassation has decided that plastic surgeries are the subject of the contract of work.

2.1. Contract of Work

A contract of work is a contract in which the contractor undertakes to create a work and the party ordering work undertakes to pay a price for it.^[19]

The Court of Cassation accepts treatment contracts for beautification, which fall into the field of plastic surgery, mainly as contracts of work. This distinction is laid out in an old 1993 decision, which sets an example for the Court of Cassation's views in this regard. In this decision; “In plastic surgeries, if the doctor performing the surgery has given a certain guarantee regarding the aesthetic appearance, this contract between the parties is a contract of work. In the contract of work, as in the contract of mandate, the contractor owes the job with loyalty and diligence, and the defendant's doctor is obliged to prove that he has fulfilled all the requirements of his professional knowledge. The material fact based on the case is the aesthetic operation of the nose to give it a beautiful appearance in accordance with the desired and agreed-on shape and shape. Considering this fact, it is clear without any doubt or hesitation that in such a contract, a guarantee is given for the outcome of the contract, and in other words, it is decided to obtain a certain result. Therefore, it should be accepted that accepting this type of contract as a contract of work will comply with the necessities of the situation and the will of the parties. In reality, the obligation in this contract is not a business that constitutes the subject of the mandate contract. Because, unlike the elements in the contract of mandate here, at the end of the study; It is aimed at achieving a certain desired result”.^[20]

Today, the Court of Cassation still has not changed its opinion, and gives decisions in the same direction in closely dated decisions, too. "In aesthetic interventions, the physician and/or hospital guarantee the patient to obtain the desired result. As a result of the process, the desired and intended works are clearly stated, and since there is a commitment to the result, the provisions of the contract of work should be applied."^[21]

2.2. Obligation to Guarantee the Desired Result of the Plastic Surgeon

As we explained above, the legal relationship between the physician and the patient constitutes the subject of the contract of mandate; on the other hand, in plastic surgeries, the subject of the contract of work. As a result of this, the physician, who has the title of proxy in the contract of mandate, is not responsible for not achieving the result towards which he or she is working. However, the plastic surgeon's obligation is to guarantee the desired result of Plastic Surgery.

It means that although the surgeon shows the utmost care and attention, if she cannot achieve the desired result, he/she is responsible for it in plastic surgery. As can be seen, the distinguishing difference between these two contracts is the guarantee of results in the contract of work.

2.3. The Strict Liability of the Plastic Surgeon

The relationship between a patient and the treating doctor, and between a lawyer and his client, is the subject of mandate. The doctor undertakes to provide medical assistance to his patient and the lawyer to provide legal assistance; however, the commitment of a result such as healing the patient and winning the case cannot be guaranteed in the contract of the mandate. Even if the patient dies or the case is lost, the doctor providing medical assistance and the lawyer providing legal assistance are entitled to the fee for their assistance and cannot be liable except for their faults. But he/she is responsible for the subject of his duty and is responsible for the damages arising from the lack of diligence in his efforts, transactions, actions, and behaviours to reach this result while performing.^[22]

On the other hand, in a contract of work, there is not only a service but also a commitment to a positive-negative result called work. If the result is not realized, the contractor will be responsible for the resulting damage. This is a type of responsibility that is almost equivalent to strict liability. Since it should not be overlooked that beauty which is quarantined as a result of the contract of work in plastic surgery is a relative concept. According to the plastic surgeon, a very good result may be an unexpected result for the patient. In fact, the current outcome may further deteriorate the mental health of the patient, let alone save him from his pre-operative state of mind. Problems between aesthetic surgeons and patients also arise intensely, especially at this point. Although this plastic surgeon does not have any faults, it reveals the strict liability he/she undertakes due to the warranty function of the contract of work.^[23]

All of the explanations on this topic bring us to a second important point related to insurance. If agreed with the Court of Cassation, does that mean, "Plastic Surgeons have responsibility for almost all surgeries that they did?"

3. Physician Professional Liability Insurance in Plastic Surgery

Professional liability insurance is a contract that includes responsibilities arising exclusively from professional activities and imposes debts on both parties; With this contract, the insured is under the obligation to pay the premium and the insurer to compensate for the loss when the risk occurs.^[24]

Professional liability insurance is based on liability. The basis of this responsibility is the damage to be incurred by third parties in case the person does not fulfill the "special care" obligation imposed by the profession, he/she performs or if the person acts defective, incomplete, and incorrectly within his professional competence^[25]. Compared to other professions, the obligation of care expected from a physician during the performance of their profession is higher in terms of the consequences it will cause. Due to that, Physician Professional Liability Insurance has become compulsory in Turkey as of 30 July 2010.^[26]

3.1. Physician's Professional Liability Insurance Clause

In Article I of the Physician's Professional Liability Insurance Clause, the scope of professional liability insurance for material and moral damages and court costs is clearly stated. In article II, claims for compensation that are not covered by the guarantee are counted. In article III, on the other hand, compensation claims and payments that can be guaranteed by an additional contract are specified. As stated in the aforementioned Clause, it is also stated in the doctrine that purely scientific research activities that do not aim at treatment with plastic surgeries are out of the scope of "medical intervention". That compensation claims against the physician due to these activities should not be able to benefit from insurance protection unless otherwise agreed.^[27]

According to this regulation, plastic surgery is not covered by compulsory financial liability insurance. However, with an additional contract, these surgeries can be included in the scope of the insurance. With this arrangement, all aesthetic interventions seem to be excluded from insurance coverage, regardless of the purpose for which they are made. It should be clarified that the regulation in the clause excludes all plastic surgeries from the insurance coverage or is it only plastic surgeries for beautification purposes. However, with this article, it is necessary to clarify whether all aesthetic surgeries or only cosmetic surgeries for beautification are excluded from the insurance coverage.

4. The Status of the Physician Professional Liability Insurance in Plastic Surgery In Accordance With Current Insurance Law Regulations

As it can be understood from the explanations have made until this part of our study, although plastic surgery in terms of medical intervention and the legal responsibility within the insurance of plastic physicians need a separate regulation, the lawmakers have not taken any initiative in this regard until now. When considering the situation of plastic surgeons within the scope of insurance provisions in the Turkish Commercial Code, it is seen that basically, 2 points are problematic. These problems can be grouped under 2 headings the name of invalid insurance and the risk assumed by the insurance.

4.1. Invalid Insurance

According to article 1404 of the Turkish Commercial Code^[28], insurance can not be taken out to cover a loss arising from an auction of the policyholder or the insured contrary to the mandatory provisions of the law, ethics, public order, and personal rights.^[29] Even if these insurances are made in accordance with this article, they will be invalid.

In the face of this provision of the Turkish Commercial Code, if return to the concept of medical intervention, which has been defined in the 2nd chapter titled plastic surgery, face a loss that insurance cannot protect.

Medical intervention is “Any activity performed by a person (physician) authorized to practice the medical profession, for treatment, directly or indirectly.” as defined before in our study. This definition is a controversial point and was discussed on this point in detail in another part of this study.^[30] If the "treatment" in the definition is accepted as a mandatory and priority element, was focused on the issue that aesthetic surgeries performed by the physician will not be considered a medical intervention, since it does not have a primary purpose of treatment.

Although it is accepted that person who prefers aesthetic intervention, is psychologically affected more negatively than other people, even if he is in the same situation as himself, some opinions accept that aesthetic intervention is "surgical interventions performed only to provide a beautiful appearance". These discussions continue in the doctrine, and there is no official definition of medical intervention. As in result of that, if we accept that interventions in plastic surgery for beautification are not intended to treat, protect or relieve pain, the insurance company can't provide coverage to the person (physician) who committed the illegal act. If he gives this guarantee, this insurance will be invalid in accordance with Article 1404 of the TCC.^[31] It causes that, the plastic surgeon will not be able to benefit from the protection of the insurance.

In practice, although the parties have not yet developed such a defense in court, it may come to light in future disputes where an escape route in this direction is possible in terms of insurance for very high compensation claims.

4.2. Risk Assumed By Insurance

According to article 1409 of the Turkish Commercial Code, the insurer shall be responsible for the loss or the insurance money arising from the occurrence of the risk covered under the contract. Physician Professional Liability Insurance is also intended to cover the claims of physicians arising from medical malpractices. Medical malpractice, which also means a medical defect, forms the basis of the physician's legal responsibilities.

There was explained wit detail in the 2nd part of the study^[32] that there is no special law regulation regarding the responsibilities of physicians in the Turkish legal system but responsible for their fault practices within the scope of the Code of Obligations. At this risks that may arise within the scope of this responsibility are undertaken by the insurance. What is important for insurance is the scope of this responsibility and what its risks are.

Every medical intervention poses a certain risk to the patient. These risks arising from the nature of medical practices emerge as an inevitable result, even if all the necessary care and attention is paid by the physician. It is not legally possible for physicians to be held responsible for this result, which is defined as a complication. However, if the physician who performs medical intervention does not notice the complication in time or does not take the necessary precautions despite noticing it, the complication turns into malpractice.^[33]

On the other hand, no liability arises for unforeseen and unavoidable harmful consequences. It is necessary for human action to be involved in these events that occur by accident or coincidence^[34]. Since malpractice and complications are subject to the same procedures as physicians with other specialties, we do not need to mention them separately. Unpredictable situations are important to us. Because, in short; While complications occur as a result of predictable but unpreventable situations, medical malpractice occurs in predictable and preventable situations^[35].

Normally, physicians are not held responsible for unforeseen and unavoidable harmful results, and while a connection cannot be established between the physician's behaviour and this damage, plastic surgeons are held responsible even for unpredictable results and for their behaviour, which is subjective whether it causes harm or not.

The work that is assigned to the plastic surgeons with the contract of work is deemed to be guaranteed, and even if the plastic surgeon reaches the most beautiful work that he can create subjectively with his agreement with the patient and his professional skills, this work may be unpredictably disliked by the patient.^[36] In this case, it may cause psychological harm according to the subjective evaluation of the patient, despite the physician's behaviour does not include harm.

The responsibility of guaranteeing this result, which is imposed on the plastic surgeon with the contract of work, imposes an unpredictable responsibility on the plastic surgeon, since the result may vary according to the aesthetic understanding of the physician and the patient. This liability is also within the scope of the insurance risk.

A claim for compensation from insurance can only be made for liability arising from the misapplication of medical intervention. For the surgeon to be responsible, it is necessary that damage occurs as a result of a faulty act contrary to the contract, and there must be a causal link between the damage and the behavior of the surgeon.^[37] However, there is no wrong application of the plastic surgeon in the above-mentioned situation, and there is no causal link between the surgeon's behavior and the damage. Even the existence of this damage depends on subjective evaluations.

Although the physician treats his patient only in the light of accepted practices of medical science, the Turkish Judicial System does not allow the physician a margin of error, especially in sensitive interventions such as plastic operations.

Examined the sample decisions Court of Cassation on this subject in the section on the legal responsibility of the physician. Since the Court of Cassation includes the contract between the parties in the scope of the contract of work in plastic surgeries, it imposes the obligation to guarantee the result to the physician. In this case, the physician will be responsible not only for his medical error but also for the compensation claims of every patient who is not satisfied with the result of the aesthetic intervention, which is very subjective.

This means the responsibility of the plastic surgeon, although without fault, is that in professional liability insurance, the insurance assumes almost 100% risk for every plastic surgery. For this reason, the Plastic Surgery branch is in the 4th group, which is the highest risk group, in Insurance risk groups^[38]. Aesthetic interventions (although their scope is not fully understood) are covered by insurance with additional coverage according to the Medical Professional Liability Insurance Clause.

In some European Countries (Czech Rep., Finland, and Norway) damages caused by plastic surgery operations performed only for aesthetic reasons without a disease cause are not covered by the Medical Liability Insurance Coverage.^[39]

Besides, in a study examining the data of an insurance company that makes professional liability insurance between the years 1991-2005, plastic and reconstructive surgery ranked 5th among the first five branches most frequently exposed to the claim of medical malpractice.^[40]

Conclusion

Today, plastic surgery, which has reached a very important point both in the world and in our country, has been preferred by people for different reasons. If gather these surgeries under two headings according to the purpose of performing these surgeries, we can say that there are plastic surgeries for treatment purposes and plastic surgeries for beautification purposes.

This distinction brings to mind the issue of which medical intervention is legal. The concept of medical intervention has not been given a clear definition in Turkish laws. For this reason, there are different opinions on the doctrine about whether plastic surgeries are legal or not. It should be clarified whether physical and psychological treatments are included in the concept of medical intervention, and it should be determined whether the deterioration of mental health will necessitate a physical medical intervention. If the necessity of medical intervention is accepted, objective evaluation criteria should be established in the determination of cases where plastic surgeries for beautification are mandatory.

After determining the criteria above, it should be clarified whether the plastic surgeries, which are stated to be out of coverage in the Physician's Professional Liability Insurance Clause, are plastic surgeries for beautification purposes or plastic surgeries for treatment purposes. Thus, it will be easily understood which plastic surgeries are or are not covered by this insurance.

There are also gaps due to legal regulations regarding whether the plastic surgeons are responsible for the almost all plastic surgeries that are not be satisfied to the patient. This gap, which occurs due to the fact that the contract between the patient and the plastic surgeon is described as a contract of work in judicial decisions, and the physician is obliged to guarantee the result, becomes questionable in terms of the risk undertaken by the insurance. Therefore, in plastic surgery, unity should be ensured in the doctrine and judicial decisions regarding whether the patient's vague claims for compensation will be covered by the insurance.

All of these will destroy the arguments that may claim the invalidity of the insurance that may be realized in the future, and contribute to the determination of liability, the scope of the Physician's Professional Liability Insurance in plastic surgery. Also, it will help in deciding whether to increase the insurance premiums according to this obligation undertaken by the insurance.

Dipnotlar

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