From Complication to Justification: The Constitutional Framework of Informed Consent and Expert Assessment in Medical Malpractice Cases
Introduction
The decision of the Constitutional Court (AYM) with application number 2021/56334 and dated 25 June 2025, published in the Official Gazette No. 33184 dated 2 March 2026 (the Decision), contains critical findings regarding the scope of informed consent in cases of alleged death following medical intervention and the manner in which objections to expert reports are assessed. The Decision serves as a precedent in terms of health law and the practice of individual applications.
In the case in question, a full-judgment action seeking compensation for non-pecuniary damage was brought by the heirs following the patient’s death from liver failure after a complication arising during gallbladder surgery. The Administrative Court dismissed the case, relying on a report prepared by the Expert Committee of the Forensic Medicine Institution; the appeal was also definitively dismissed.
The Constitutional Court did not identify any constitutional-level organizational shortcomings or clear negligence in the provision of healthcare services in the specific case. However, it concluded that the lower court had failed to discuss the applicant’s main claims with sufficient clarity and in a comparative manner, particularly regarding the scope of informed consent and the assessment of expert reports. The Court therefore ruled that the substantive aspect of the right to life had not been violated, but that procedural safeguards had been breached, and ordered the case to be referred back to the relevant court for a retrial.
This judgment demonstrates that, in claims of death resulting from medical intervention, the question of ‘whether there was negligence or not’ is insufficient; courts are obliged to address the fundamental claims put forward by the parties with clear and verifiable reasoning. It has the potential to yield practical consequences in two particular areas: strengthening the substantive review of informed consent and preventing expert reports from automatically serving as grounds for a decision.
This article will first address the background of the case and the criminal investigation process. It will then examine the full-judgment proceedings before the Administrative Court; the scope of the right to life; and the Constitutional Court’s assessment of the individual application within the framework of the state’s positive obligations under Article. Finally, the implications of the decision for the practice of health law will be evaluated.
Background of the Case and the Criminal Investigation Process
The applicant’s mother, M.E., underwent gallbladder surgery at Van Regional Training and Research Hospital on 27 February 2018. An injury occurred during the operation; whilst she was undergoing treatment, she died on 18 March 2018 as a result of liver failure.
The applicant filed a criminal complaint with the Van Chief Public Prosecutor’s Office, alleging that the surgeon who performed the operation caused an injury to the portal vein during the procedure, which led to his mother’s death. As part of the investigation, medical records relating to the pre- and post-operative periods, as well as various consent forms signed by the patient and her relatives, were included in the file. The file contains an informed consent form regarding the intensive care unit, a consent form for restraints, an anesthesia consent form signed by the applicant, and consent forms relating to the transfer.
The consent form for the surgery states that the procedure may be performed using either an open or laparoscopic (closed, invasive) method; that there is a risk of injury to the liver and surrounding organs during the operation; that additional procedures may be required if necessary; and that the laparoscopic method may be converted to open surgery. However, the applicant argued that specific and life-threatening risks, such as portal vein injury, were not clearly stated in this form; that they were not informed that the surgery would begin using the laparoscopic method; and that, consequently, the duty to provide information had not been properly fulfilled.
During the investigation process, a request for an investigation permit regarding the relevant doctor was made; however, it was decided not to grant the investigation permit. The applicant’s appeal against this decision was definitively rejected by the 1st Administrative Court of the Erzurum Regional Administrative Court. Consequently, the Public Prosecutor’s Office decided that there were no grounds for an investigation due to the refusal to grant an investigation permit, and the criminal investigation was terminated at the permit stage.
The Scope of the Right to Life and the State’s Positive Obligations
To correctly interpret the Constitutional Court’s assessment of the specific case, it is necessary to briefly address the scope of the right to life and the State’s positive obligations in relation to this right. This is because the Constitutional Court examined the individual application not merely in terms of the technical aspects of the medical procedure, but by focusing on the scope and manner in which the allegations regarding this procedure were subject to judicial review.
The right to life, guaranteed by Article 17 of the Constitution, when considered alongside Article 5, which regulates the state’s fundamental aims and duties, imposes upon the state not only negative obligations but also certain positive obligations to protect the lives of persons under its jurisdiction.[1] Article 56 of the Constitution, meanwhile, stipulates that everyone has the right to live in a healthy and balanced environment; it requires the state to plan and provide healthcare services, and to fulfill this duty by supervising such services through both the public and private sectors.[2]
Within this framework, the state is obliged to regulate health services in such a way as to ensure that the necessary measures to protect patients’ lives can be taken, regardless of whether these services are provided by public or private healthcare institutions. These regulations also encompass the high professional standards that healthcare personnel must possess.[3]
In the context of positive obligations under the right to life, the state is also obliged to establish an effective judicial system to ensure that the legal and administrative framework established to protect the right to life is properly implemented and that violations of this right are halted and punished. In cases of death allegedly resulting from medical negligence, this obligation may be deemed to have been fulfilled by ensuring that legal, administrative, and even disciplinary remedies remain available to the victims.
On the other hand, in cases where a death results from a systemic or structural failure within the healthcare system that is known to, or ought to be known by, the authorities, the failure to bring charges against those responsible or to bring them to trial may constitute a violation of the right to life.
In compensation claims brought under the right to life, the requirement of reasonable diligence and promptness must be met.[4] Unless there are credible and reasonable grounds for the delay, the length of proceedings will result in a breach of the positive obligations under the right to life. However, assessing the technical content of expert reports and evaluating the facts of the case remains within the remit of the courts of first instance . The Constitutional Court may only intervene in such evaluations where there is a manifest error of judgement or clear arbitrariness.[5]
The Constitutional Court’s Assessment of the Individual Application
The Constitutional Court examined the application within the scope of the right to life; it based its assessment not merely on whether death had occurred, but on whether the allegations of death had been effectively and sufficiently investigated by the lower courts. The Court, recalling that the State has positive obligations to protect individuals’ lives in accordance with the relevant provisions of the Constitution, assessed both the substantive and procedural dimensions of the right to life separately.
The Substantive Dimension of the Right to Life
The Constitutional Court has stated that, in cases involving allegations of medical negligence, the State’s positive obligation regarding the substantive dimension of the right to life consists of establishing effective legislation to ensure that both public and private hospitals take the necessary measures to protect patients’ lives. Provided that the legislation established is not deficient in terms of protecting individuals’ lives, errors in assessment made by healthcare professionals during treatment, delays in the treatment process, or lack of coordination are not, on their own, sufficient to hold the state liable for a violation of the substantive dimension of the right to life.
In the specific case, the Constitutional Court found that there was no allegation that the applicant’s relative had died as a result of being deprived of access to emergency healthcare services, nor was there any complaint that necessary measures had not been taken due to systemic or structural failures known to, or which should have been known to, the healthcare staff. The applicant’s allegations of violation are essentially limited to medical negligence. Consequently, the Constitutional Court concluded that the legal framework in force at the time of the incident did not contain any shortcomings regarding the protection of the applicant’s relative’s life and thus ruled that the substantive aspect of the right to life had not been violated.
The Procedural Dimension of the Right to Life: Informed Consent and the Expert Report
The area in which the Constitutional Court identified the main violation is the procedural aspect of the right to life. The Court concluded that the lower court had failed to examine the applicant’s main claims with sufficient diligence, thereby finding that procedural safeguards had been violated.
The Expert Committee’s report stated that M.E.’s injury was a complication arising during the operation and that the death occurred as a result of liver failure and related complications developing after the operation. The lower court also dismissed the case on the basis of this report. The Constitutional Court accepted that the applicant’s claims regarding alleged medical negligence had been discussed and addressed on the basis of concrete findings and determinations.
However, the Constitutional Court noted that the applicant had argued in the application that the duty to inform had not been fulfilled because they had not been informed that the surgery would be performed using a closed technique and that they had subsequently claimed in the appeal that they had not been informed during the process, requesting a new report from the High Health Council of the Forensic Medicine Institution. The Court of First Instance, however, was found not to have made any assessment regarding whether the informed consent form required during M.E.’s surgical procedure had been obtained; if so, the scope of the form; or whether the form included risks that could arise during the operation and lead to the patient’s death:
According to the Constitutional Court, given the applicant’s claims, an assessment should have been carried out on the aforementioned matters, if necessary by consulting an expert. Consequently, it could not be said that the Court had conducted an examination with the diligence required by Article 17 of the Constitution. On this ground, the Constitutional Court ruled that the procedural aspect of the right to life had been violated.
It was ordered that the case be referred back to the Administrative Court for a retrial to remedy the consequences of the violation. The applicant’s claim for non-pecuniary damages was rejected on the grounds that the retrial would provide sufficient redress.
Consequences of the Decision in Terms of Health Law Practice
This decision has the potential to yield consequences in two key areas regarding the application of health law. The first of these is the strengthening of the substantive review of informed consent. Informed consent constitutes one of the fundamental conditions for the legality of a medical intervention and requires that the patient be adequately informed about the risks, alternatives, and consequences of the intervention. In the decision under review by the Constitutional Court, the mere physical presence of the consent form in the case file was not deemed sufficient in itself to prove that the duty to inform had been fulfilled. Whether the form covered the risks specific to the intervention and whether the claimant’s allegations in this regard had been addressed by the court were identified as matters requiring further assessment. The doctor’s duty to inform the patient is regarded as a prerequisite for the patient to be able to make a free decision regarding their own future; consequently, it is considered incorrect to view consent as merely the signing of a form. The decision confirms that the scope of the information provided and whether the specific risks were explained must be subject to judicial review.
The second key aspect is that the automatic substitution of expert reports for the court’s reasoning is not deemed sufficient. Whilst an expert examination is an indispensable tool for determining the compliance of a medical intervention with standards, it cannot, on its own, constitute the grounds for a court decision. In the specific case, the Constitutional Court assessed the failure of the court to review the aspects of the expert report that did not address the parties’ objections, and the direct acceptance of the report as the grounds for the judgment as a deficiency in judicial review. Lower courts must establish a rationale that addresses the parties’ objections, resolves any contradictions, and links the medical assessment to the analysis of legal liability when adopting the expert’s opinion.
Assessment and Conclusion
The Constitutional Court’s decision under review clearly establishes that characterizing an outcome arising from a medical intervention as a ‘complication’ is not, in itself, sufficient to narrow the scope of judicial review. Whilst the Court leaves the technical assessment of medical practice to the discretion of the lower courts and experts, it has emphasized that this assessment must be based on a reasoned, verifiable, and comprehensive justification that addresses the parties’ substantive claims.
In the specific case, the Forensic Medicine Institution’s report stated that the death occurred as a result of a complication and that no medical error was found in the management of the complication. However, the failure of the report to explicitly address the plaintiffs’ claims regarding the scope of informed consent, and the lower court’s failure to provide a reasoned assessment of the request for a new report led to the conclusion that the judicial review was incomplete.
Consequently, the Constitutional Court determined that the classification of the medical intervention as a complication did not preclude a separate examination of the claims regarding the duty to inform, and that the process failed to meet the ‘due care’ criterion required by Article 17 of the Constitution; it assessed the rejection decision, based on an inadequate expert report, as a procedural deficiency necessitating a retrial.
This Decision demonstrates that in health law, not only medical practice but also the quality of judicial assessment is subject to constitutional scrutiny. Whilst the distinction between complication and negligence is upheld, the manner in which this distinction is justified is subject to scrutiny. It has once again been confirmed that judicial authorities must treat expert reports not merely as technical documents, but as verifiable evidence encompassing the safeguards of the right to life.
- Constitutional Court, Nafia Sevin Ergün Sefada and Others (GK), Case No. 2014/14844, 1 December 2016, §§ 57-58.
- Constitutional Court, Nail Artuç (1st Chamber), Case No. 2013/2839, 3 April 2014, §§ 34-35.
- Constitutional Court, Ayhan Keçeli and others (2nd Chamber), Case No. 2019/24231, 23 February 2022, § 81.
- Constitutional Court, Perihan Uçar and Others (2nd Chamber), Case No. 2013/5860, 1 December 2015, § 52;
- Constitutional Court, Bağı Akay and others (1st Chamber), Case No. 2014/5101, 22 June 2017, § 56.
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