NEWSLETTER-2019-metin

220 NEWSLETTER 2019 in aesthetic interventions, the doctor, as the contractor, guarantees that the patient will achieve the desired result. 1 In this respect, interventions made for aesthetic purposes are generally subject to the provisions of contracts for work. However, it is accepted that a proxy relationship is established for treatment purposes, and for treatments where the result cannot be guaranteed. Doctor’s Duty of Care Under Turkish law, there are certain conditions to be met in order to hold the doctor liable for damages suffered as a result of a medi- cal intervention. These conditions are: The existence of (i) defective work, (ii) damage as a result of this work, and (iii) causation. In order to impose liability, all of these criteria shall be cumulatively fulfilled. In determining the condition defect, fulfilling the duty of care plays an important role. Pursuant to Art. 471/2 of the Turkish Code of Obligations num- bered 6098 (“TCO”), which regulates the contract for work provisions, “The determination of the responsibility of the contractor arising from diligence is based on the conduct of a prudent contractor, who under- takes works in a similar field, in accordance with professional and technical rules.” In order to be a prudent conductor, the doctor shall accomplish his/her duty of care in line with all of the medical, ethical and professional rules. Contrary to contracts for work, in the proxy re - lationship, the attorney would be held responsible, not because of the failure to reach the desired result, but from the damages that arose due to failure to comply with the duty of care in the behaviors performed while attempting to reach the desired result. Within this scope, during the diagnosis and treatment process, the doctor is required to carry out applications for the benefit of the pa- tient, to fulfill the professional requirements of the medical profession, and to take preventive measures in terms of damages that may occur during or after the treatment. Pursuant to Art. 4 of the Convention on Human Rights and Biomedicine 2 , “Any intervention in the field of 1 15th CC of the Court of Cassation, E. 2018/4953, K. 2018/4526, 19.11.2018. 2 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human