104 The Legal Responsibility of Nurses in the Light of the Turkish Court of Cassation Jurisprudence CONCLUSION The nurse contributes to care and therapy in all treatment processes by focusing on protecting and improving individual, family and community health. Unfortunately, even nurses who perform such a lofty task can make professional mistakes that malpractice may lead to their legal, administrative and/or criminal responsibilities. Of course, nurses are also irresponsible for complications, just like any health personnel qualified for medical intervention. The nurse’s legal responsibility for medical error can find its source in torts and/or breach of contract. In addition, it is among the rare possibilities that the nurse acts against the obligation of good faith in pre-contractual negotiations (culpa in contrahendo) and acts without authority (negotiorum gestio). Charges can be preferred against the nurse, who has duties both attached to and independent of the physician. As a rule, physicians and nurses are separate within their realm of authority and jointly responsible when these areas intersect. In fact, it can be argued that the physician should not be held responsible for the action of the nurse, which is not included in the reason for their employments. On the other hand, when certain conditions are occur together, a lawsuit may be brought against the physician or hospital due to the medical error of the nurse, on the grounds of the strict liability of the employer (article 66 of TBK) and the strict liability for auxiliary persons (article 116 of TBK). The fact that the social status and economic situation of the parties are still taken into account in determining the amount of non-pecuniary damages in the Court of Cassation decisions violates the principle of social equality. The Supreme Court’s resurrection of the repealed legislation against the law and recommending the courts of first instance to evaluate the amount of moral compensation according to criteria contrary to the principle of social equality, unfortunately affected the jurisprudence about the legal responsibility of the nurse. The fact that this method is contrary to the statements and spirit of the current Turkish Code of Obligations is exemplified by concrete cases regarding the request for moral compensation from the defendant nurse. It is considered that there is no correlation between the place or profession of the parties in the society, the position they occupy, their economic qualifications and the amount of non-pecuniary compensation.
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