97 Union of Turkish Bar Associations Review 2022 TÜZÜNER / DUYMUŞ / ALGÜL In 2020, the medical error of the nurse in the home care service carried out by a metropolitan municipality was the subject of the Supreme Court case law. Naturally, a referral was made to the administrative jurisdiction with reference to neglect of duty.73 Another case examined in 2020 is the nurse’s wrongful injection after tonsillectomy. According to the Court of Cassation, the report of the Council of Forensic Medicine is not enough. An additional report should be requested from the expert committee of independent academics working at State universities. Thus, it should be determined whether the physician has a wrongful act with the nurse.74 Finally, in relevant jurisprudence, although physical therapy is recommended in case of temporary paralysis of the leg because of the injection, the responsibility of the nurse for all kinds of wrongful acts is mentioned.75 C- ANALYSIS OF THE VERDICTS AND THE INJECTION PROBLEM A nurse, who has duties attached to and independent of the physician, also has sole responsibility. Each attendant must be held accountable within his realm of authority.76 Bringing a lawsuit against the physician due to the nurse’s medical error can be based on the strict liability for auxiliary persons (article 100 of EBK; article 116 of TBK). In addition, it is possible to file a lawsuit to the hospital for the wrongful act of the nurse (article 66 of TBK). The Court of Cassation is well aware that the nurse has duties attached to and independent of the physician. With this awareness, the physician’s fault with the nurse or separately is determined by experts.77 After all, if there is authority, responsibility can be mentioned. It may be appropriate for the physician not to be held responsible for the action of the nurse, which is not included in the reason for his or her employment. 73 13th Civil Chamber of the Court of Cassation, 2017/8615, 2020/4264, 12.6.2020. 74 13th Civil Chamber of the Court of Cassation, 2016/30032, 2020/25, 13.1.2020. 75 13th Civil Chamber of the Court of Cassation, 2017/6263, 2020/3386, 25.3.2020. 76 Kürşat, p. 302, 303. See also Çelik, p. 876. 77 4th Civil Chamber of the Court of Cassation, 1973/2684, 1973/2978, 13.3.1973. 13th Civil Chamber of the Court of Cassation, 2003/2333, 2003/6348, 22.5.2003. 13th Civil Chamber of the Court of Cassation, 2017/6263, 2020/3386, 25.3.2020.
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