125 Union of Turkish Bar Associations Review 2022 Hacı KARA mandatory provision. Therefore, the parties may agree otherwise in the insurance contract.32 Physician professional liability insurances can be made in three ways: claims made, occurrence basis-event occurrence or hybrid contracts.33 For claims-based insurance, only medical malpractices that occur during the contract period are covered by the contract.34 For example, a claim for compensation related to an incident that occurred in 2015 must be submitted by the end of 2015.35 If the demand-based insurance is renewed without interruption (for example, if the contract know all the past works and transactions of the insured and will want to control how they were done. Otherwise, it may face the danger of encountering very big risks. In addition, such an arrangement will pave the way for malicious applications. Namely, those who think that they may face a claim for compensation due to an error they have made will immediately go to the option of making an insurance contract: The liability of the insurer is tied to the events that will require the liability of the insured for the reasons explained above. At this point, it is not important that the loss arises or is claimed later than the contract period in order to mention the liability of the insurer. However, since the article is not mandatory, it is possible for the parties to determine the contract risk in different ways according to the types of liability insurance. TCC Article Justifications, https:// www.tbmart.gov.tr/d22/1/1-1138.pdf, (Date of Access: 19.09.2019). 32 However, since the request can also be made orally, difficulties of proof may arise as to when it was made. Karasu, p. 689; Ünan, TCC Annotation, p. 291. 33 The risk is deemed to have occurred as soon as the insured learns about the subject of the insurance contract or that the injured party applies directly to the insurer (General Conditions Art. B. 1). In claims-based insurance, the risk is deemed to have occurred when the claim for compensation is made by the injured party to the policyholder. The request can also be made verbally, in which case difficulties may arise in the proof. Ünan, TCC Annotation, p. 292 34 Many liability insurances are made on a “demand basis” in our country: Environmental Pollution Financial Liability Insurance (General Conditions art. A.2); Compulsory Liability Insurance for Coastal Facilities Marine Pollution (General Conditions art. A.1); Compulsory Liability Insurance Regarding Medical Malpractice (General Conditions art. A.1 and B.1) Product Liability Insurance General Conditions. Professional Liability Insurance General Conditions, on the other hand, allow insurances made on the basis of both “incident+loss” and “incident+demand” principles, according to the agreement of the parties. Ünan, TCC Annotation, p. 292. 35 According to Çeker; “in claims made policies which cover events during the contract period, the indemnity claim can be claimed during the contract period, and the insurer has to cover the claims made within two years after the end of the insurance period, provided that it is caused by an event that occurred during the contract period. For example, if a valid contract was made between 01.04.2011 and 01.04.2012 and the patient died on 30.06.2012 after staying in the intensive care unit for a long time as a result of an erroneous surgery on 30.05.2011, the insurer becomes liable and becomes obliged to pay compensation even though the contract expires on 01.04.2012 “. Çeker, p. 309.
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