Financial Recovery: Calculating Material & Moral Compensation in Malpractice Cases
- Onur ÇALIŞICI
- 7 days ago
- 5 min read
When medical negligence causes injury or death, the legal system cannot reverse the physical damage. Instead, it offers a financial remedy designed to restore the victim's economic status and acknowledge their suffering.
In Turkish law, whether you are suing under Administrative Law (for state hospitals) or Private Law (for private clinics), the compensation is strictly categorized into Material Compensation (Maddi Tazminat) and Moral Compensation (Manevi Tazminat). Understanding how these are calculated is essential for managing expectations in a malpractice lawsuit.
Material Compensation: Restoring Financial Balance
Material compensation aims to cover the actual financial losses incurred due to the medical error. The goal is to put the victim in the financial position they would have been in had the error never occurred.
Based on the Turkish Code of Obligations (BK) and relevant court precedents, actionable claims include:
Treatment Expenses: Any costs paid to correct the error, including surgeries, medication, and rehabilitation.
Loss of Earnings (Temporary): If the patient cannot work during recovery, they can claim the income lost during this period.
Loss of Workforce (Permanent Disability): If the malpractice results in a permanent disability (e.g., loss of a limb or organ function), the court calculates the "loss of work power" (iş göremezlik). This is an actuarial calculation projecting lost future earnings over the victim's remaining active life.
Caregiver Fees: If the victim requires permanent assistance (e.g., a child born with cerebral palsy due to negligence), the cost of a caregiver (bakıcı ücreti) is recoverable.
Loss of Support (Destekten Yoksun Kalma): If the malpractice results in death, the deceased's dependents (spouse, children) can sue for the financial support they will no longer receive .
Expert Calculation: Courts do not guess these numbers. They rely on expert witness reports (Bilirkişi)—often from the Forensic Medicine Institute—to determine the exact percentage of disability and fault.
Moral Compensation: The Price of Suffering
Moral compensation is more abstract. It is designed to compensate for the pain, sorrow, and reduction in the joy of living caused by the doctor's error.
However, Turkish courts strictly adhere to the principle that moral compensation is not a penalty, nor is it a mechanism for enrichment .
How is it Calculated?
Judges have significant discretion here, but they must follow objective criteria set by the Supreme Court (Yargıtay):
Fault Ratio: How much was the doctor to blame versus the patient's own condition or potential complications? .
Severity of Harm: A permanent scar on the face warrants higher damages than a temporary injury.
Socioeconomic Status: The court considers the financial standing of both parties to ensure the amount is significant enough to be felt by the defendant but not exorbitant .
Case Study Example: In a laser epilation case where a patient suffered burns, the court ruled that even if the physical damage wasn't life-threatening, the "sadness and suffering" caused by the aesthetic damage justified moral compensation .
The "Interest" Clock: When Does It Start?
In high-value lawsuits that drag on for years, legal interest (yasal faiz) can significantly increase the final payout. However, the starting date for this interest depends on who you are suing.
Against Private Doctors/Hospitals: Interest usually starts from the date of the event (the malpractice incident) or the date the lawsuit is filed, depending on the claim type .
Against State Administration: For "Service Fault" cases in Administrative Court, you must first apply to the administration for compensation. The Council of State (Danıştay) has ruled that interest begins from the date you applied to the administration, not the date you filed the lawsuit.
Warning: If you ask for interest starting from the "lawsuit date" in your petition, you might lose out on the interest accumulated during the mandatory application period .
Special Scenarios: "Wrongful Birth" Claims
In cases involving birth defects (e.g., a failure to diagnose Down Syndrome), courts have navigated complex ethical grounds.
Material Damages: Courts may reject claims that imply a child's existence is a "damage."
Moral Damages: However, high courts have awarded moral compensation to parents because the doctor's failure to inform them deprived them of the choice to terminate the pregnancy (within legal limits). The breach of the "duty to enlighten" is a compensable harm in itself.
Summary
Financial recovery in Turkish malpractice law is a mathematical exercise grounded in evidence. Whether it is a "Workforce Loss" report for a disabled limb or a "Loss of Support" calculation for a wrongful death, every Lira claimed must be substantiated by expert reports and legal precedent.
Frequently Asked Questions: Compensation in Malpractice Cases
What is the difference between Material and Moral compensation in Turkey?
Under Turkish law, Material Compensation aims to restore your financial balance by covering actual costs like surgery fees, medication, and lost earnings. Its goal is to put you back in the financial position you would have been in if the error never happened. Moral Compensation, on the other hand, is designed to acknowledge your pain, sorrow, and the "reduction in the joy of living" caused by the injury.
How does the court calculate damages for a permanent disability?
Courts do not guess these figures. They rely on expert witness reports (Bilirkişi)—often from the Forensic Medicine Institute—to determine the exact percentage of your disability. If you suffer a permanent loss of limb or organ function, an actuarial calculation is made to project your "Loss of Workforce" (earnings you will lose over your remaining active life).
Does the legal interest on the compensation start immediately?
It depends on who you are suing. In cases against private doctors or clinics, interest usually starts from the date of the malpractice incident. However, if you are suing a state hospital (Administrative Law), you must first apply to the administration. The Council of State rules that interest begins from the date of this application, not necessarily the incident date.
Can I claim compensation if a doctor failed to diagnose a birth defect (Wrongful Birth)?
Yes, but the legal ground is specific. Courts may reject claims implying a child’s existence is a "damage." However, high courts have awarded Moral Compensation to parents because the doctor’s failure to inform them breached the "duty to enlighten," depriving the parents of their legal right to make an informed choice regarding the pregnancy.
Is Moral Compensation used to punish the doctor financially?
No. Turkish courts strictly adhere to the principle that moral compensation is not a penalty for the doctor, nor is it a mechanism for the victim to get rich (Enrichment Prohibition). The amount is determined based on the fault ratio, severity of harm, and the socioeconomic status of both parties to ensure it is felt but fair.
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