155 Union of Turkish Bar Associations Review 2022 Hacı KARA create any liability for the insurance company. Knowing that a lawsuit has been filed against him, the doctor is obliged to pay the premium debt arising from the insurance he has taken out for this reason, to the insurer.82 However, if the risk has not yet materialized despite the claim or threat that a malpractice lawsuit will be filed, it is possible for the doctor to take out insurance with retrospective effect upon a patient’s statement that he or she will file a compensation lawsuit against the doctor. In this case, the insurance contract is valid since the risk has not occurred yet. The objective uncertainty of the risk is among the most important elements of the insurance contract. 83 Therefore, if it is known by the parties of the insurance contract that the risk has occurred or that the possibility of its realization has disappeared, the insurance contract cannot be established in a valid way, since ignorance of the occurrence of the risk cannot be aforesaid. In this case, the insurance contract is invalid.84 Another important issue is the situation with doctors working in the public sector. As it is known, it is not possible to file a lawsuit for damages directly against doctors working in the public sector. Such cases must first be brought against the public administration. The public institution may recourse to its own faulty personnel for the compensation it has to pay later. For this reason, if health personnel who are informed that a lawsuit has been filed against the public administration, takes out retroactive insurance from now on, will this insurance 82 The objective uncertainty of the risk is among the most important elements of the insurance contract. Therefore, if it is known by the parties of the insurance contract that the risk has occurred or that the possibility of its realization has disappeared, the insurance contract cannot be established in a valid way, since ignorance of the occurrence of the risk cannot be mentioned. In this case, the insurance contract is invalid. Çapa, p. 347. 83 The objective uncertainty of the risk is among the most important elements of the insurance contract. Therefore, if it is known by the parties of the insurance contract that the risk has occurred or that the possibility of its realization has disappeared, the insurance contract cannot be established in a valid way, since ignorance of the occurrence of the risk cannot be aforesaid. In this case, the insurance contract is invalid. Capa, p. 347. 84 Erkin Göçmen, “Can Malpractice Insurance with Retrospective Effect Be Made?”, Medical Academy, https://www.medikalakademi.coart.tr/gecmise-etkili-malpraktis-sigortasi- yapilabilir mi?, p. 1, (Date of Access: 16.08.2019).
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