144 Physician's Compulsory Liability Insurance According to Judicial and Arbitral Decisions made in accordance with the result. The fact that the court has made a written judgment with an incomplete examination by ignoring these aspects is against the procedure and the law and requires annulment. Therefore, it was unanimously decided to reverse the decision in favor of the plaintiff.66 There are many decisions of the Court of Cassation in which physicians are sentenced to compensation due to non-fulfillment of the obligation to inform.67 Even though the lawsuit was filed for the fault of the physician and it was determined that the physician did not have any fault, the violation of the obligation to inform is accepted as the main reason for the compensation. In the decisions of the Supreme Court, the simple and printed consent form was not considered sufficient. It has not been accepted as valid that the physician obtains written consent from the patient but makes the clarification verbally, and it has been accepted that the clarification was not made because it was not written. In this way, on the one hand, the burden of proving enlightenment was placed on the physician, and it was also accepted that the consent form did not mean enlightenment, in line with the views defended in the doctrine.68 The basic criteria for valid consent to be mentioned are, that the patient knows what he or she consents to. As a matter of fact, in order for the consent to be legally valid, the person must know the state of health, the intervention, its effects, and consequences, and be sufficiently enlightened on this issue. It is the physician who is responsible for enlightenment. This physician must be the physician administering the treatment. There is no need for the patient to make a request from the physician for clarification. With the clarification, the patient should be informed about the diagnosis made as a result of examinations, 66 www.kazanci.com.tr, (Date of Access: 25.08.2019). 67 Rıza/Çağlar/Özdamar, p. 106. 68 Obtaining the patient’s consent before any kind of medical intervention is the result of respecting this right of the person who has the personality right over his/ her own body. For this reason, every person who applies to a health institution to receive health care has the right to receive information about any attempt against his or her physical and mental integrity. Here, the point to be noted is that the patient will need to be in a position to freely decide on the medical intervention that is considered to be applied to him. The provision of this situation depends on the adequacy of the illumination by the physician. Informing the patient will serve to ensure the right to decide about his own future. Yördem, p. 543.
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