159 Union of Turkish Bar Associations Review 2022 Hacı KARA the consent of the parties’ attorneys, it was decided to take an additional two months; and finally, the request was partially accepted.88 88 The Arbitration Panel of Disputes decided that the defendant of the case in the general court, Dr. In its application for arbitration, G.B.N. rejected the procedural objection on the grounds that the defendant was an insurance company. Therefore the same case had not been brought before the general court, and the conditions were not met because the defendants were different. On the grounds that the doctor, who was less faulty in the main aspect, should be considered completely faulty, he accepted the requests for material and moral compensation differently. In the concrete case; 30/14 of the Insurance Law No. 5684. According to the article: “An application cannot be made to the Commission regarding the disputes submitted to the Court and the Arbitration Committee for Consumer Problems pursuant to the provisions of the Law on the Protection of the Consumer” and “the same lawsuit has been filed before and is still pending,” as stated in article 114/1.1 of the CPC. The conditions of “not being” have not been met. For this reason, it is not wrong to reject the objection on this issue by the Arbitration Committee of Disputes; the objection of the insurance company regarding this issue had to be rejected. In terms of pecuniary and non-pecuniary damages: As a result, in the decision of the Forensic Medicine Institute 2nd Specialization Department dated 12.06.2015, it was stated that “no fault could be found attributable to the relevant physician and other health personnel”. Since the general court had decided to receive a report from the General Assembly of Forensic Medicine, it was decided to submit this report if it came, or to wait for it if it did not, and the representative of the insurance company submitted the report of the General Assembly of Forensic Medicine to the file. As a result of the report of the General Board of Forensic Medicine dated 29.09.2016: “G1 P0, 39-40 weeks old, 5-6 cm, 80% effacement, a painfully pregnant woman who applied to the private X Hospital date on 06.02.2010 was in labor for about 3 hours. After the follow-up, she gave birth by applying nsd+epi with vacuum, developed posterior occiput, developed shoulder dystocia at birth, and right brachial plexus paralysis was detected in a 3770-g born baby. It is understood that the decision taken to put a vacuum in order to prevent the baby from waiting too long in a pregnant woman with a weakness for straining is medically correct, that vacuum is applied by the midwife at the instruction and control of the physician who is in another operation, that the shoulder dystocia that develops at birth and the brachial plexus damage that develops due to it can be treated with a vacuum. normal delivery of brachial plexus lesion detected in small. It has been unanimously agreed that it can be seen due to maneuvers during the removal of the baby from the vaginal route even in cases where all care is shown during the procedure and it is described as an unpredictable and unpreventable complication, therefore, no defect that can be attributed to the relevant physician and other health officials in terms of the formation of a plexus brachialis lesion in the baby during labor. It is agreed” assessment was made. In the face of the reports of the 2nd Specialization Department of the Forensic Medicine Institute and the General Assembly of Forensic Medicine, which confirmed each other and were given unanimously, the applicants’ representative submitted the file and Dr. X University Medical Faculty Ordinary Medicine USA report stating that GB was defective could not be valued. Unless there is a contrary provision in the policy, the insured must be at fault in order for the insurance company to be considered liable under the Health Professionals Individual Risks Insurance Policy. Since the reports of the 2nd Specialization Department of the Forensic Medicine Institute and the General Board of Forensic Medicine, which confirm each other and received unanimously: “No fault was found attributable to the relevant physician and other health officials”, the defendant insurance company is not liable under
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