98 The Legal Responsibility of Nurses in the Light of the Turkish Court of Cassation Jurisprudence While assessing and determining whether nurses fulfil their duty of care, the requirements of medical science and legal science are jointly taken into account, that is, the law mentions the level of “behaviour that must be displayed by a prudent attorney who undertakes work and services in a similar field” (article 506/3 of TBK). In some of the reviewed cases of the Court of Cassation, nurses are incapable of showing the necessary importance and sensitivity. For example, falling of the patient to the ground who is under the influence of narcosis due to being left on the bed with the safety armrests not lifted; paralyzing of the child’s right foot due to the injection of the needle although it is written ‘’may not be administered to the vein” on it; harming to the nerves in the arm of the new-born as a result of severe pressure on the pregnant woman’s abdomen; forgetting the gauze on the patient’s body during the surgery are some of the disturbing examples of the violation of the duty of care within the scope of the Supreme Court verdicts.78 As stated by the Court of Cassation, if the nurse’s reckless injuring or killing actions are proven as a material fact in the criminal prosecution, they are of course taken into consideration in the civil court as well. Undoubtedly, civil and criminal judges are not subject to each other. Turkish Code of Obligations also regulates this issue (article 53 of EBK; article 74 of TBK). Therefore, as it is determined that it took place during the investigation and prosecution process, tangible (cold/ material) facts bind the judge of civil court.79 The expression “it also takes into account the title of the parties, the position they occupy and their other social and economic conditions” in the repealed Turkish Code of Obligations has not been included in the current Turkish Code of Obligations (article 49/2 of EBK; article 58 of TBK). The degree of pain and suffering is included in the evidentiary activities carried out by the parties.80 For example, in severe conse78 13th Civil Chamber of the Court of Cassation, 2018/4890, 2019/11954, 2.12.2019. Court of Cassation, General Assembly of Civil Chambers, 2011/4-64, 2011/200, 20.4.2011. 4th Civil Chamber of the Court of Cassation, 2004/11762, 2004/10881, 30.9.2004. 3rd Civil Chamber of the Court of Cassation, 2020/3289, 2020/5633, 8.10.2020. See also Kürşat, p. 294, 295. 79 13th Civil Chamber of the Court of Cassation, 2014/43885, 2016/2467, 2.2.2016. 80 Oğuzman/Seliçi/Oktay-Özdemir, p. 275, fn. 925. Dural/Öğüz, § 803, 808.
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