NEWSLETTER-2019-metin

222 NEWSLETTER 2019 per Art. 478 of the TCO, “ If the contractor delivers defective work, the litigation to file a case regarding such defect shall be 2 years for the movables and 5 years for the immovables . However, if such defect has resulted from the gross negligence of the contractor, then the lapse of time shall be 20 years, regardless of the nature of the related work.” In case of treatment-proposed medical interventions, the provi- sions of a proxy agreement would be valid and, since there is no special statute of limitation regulated for proxy agreements, it shall be subject to the general statute of limitation in the TCO, which is 10 years. Conclusion Since there is no provision in Turkish law that regulates the le- gal relationship between a doctor and his/her patient, various crite- ria have been established through the jurisprudence of the Court of Cassation. Identifying the legal relationship is important in terms of the determination of the defect and the statute of limitations in cases filed for damages. The provisions of the contracts for work regulated in the TCO shall be valid in respect of aesthetic-purposed interven- tions, where a result is guaranteed, and the provisions of the proxy agreement regulated in the TCO shall be valid in terms of therapeutic purposed interventions. In order for the doctor to be held liable as a result of an interven- tion, there must have been defective work, damage as a result of this work, and causation between the occurrence of the damage and the defective work of the doctor. In conclusion, duty of care and duty of disclosure are two of the most important obligations of the doctor toward his/her patient. Pursu- ant to the established jurisprudences of the Court of Cassation, in the event where these obligations are not fulfilled, the doctor’s work shall be found defective, and shall be held liable for any pecuniary and non- pecuniary damages. While determining the defect, medical standards shall be identified and evaluated by reports prepared by experts.