86 The Legal Responsibility of Nurses in the Light of the Turkish Court of Cassation Jurisprudence legal reasons that give rise to such responsibility in accordance with the Turkish Code of Obligations No. 6098 (TBK) will be addressed from a bird’s eye view. First of all, it should be explained that there are dependent, independent and semi-dependent roles in nursing. Indeed, the nurse’s spectrum of duties is not limited to merely following the physician’s instructions. At the same time, a nurse can enter into a contractual relationship directly with the patient. A nurse works dependent on the physician in terms of administering treatment. However, a nurse is equipped with independent decision-making abilities in terms of nursing diagnosis process and nursing care.41 Nursing Regulation illuminates these roles as follows: “based on evidence within the framework of the needs determined within the scope of the nursing diagnosis process plans, implements, evaluates and supervises” (article 6/1-a of HY). In the first case, the nurse may be held liable pursuant to the provisions of tort (article 49 et seq. of TBK). The conditions for the nurse’s conviction to pay compensation arising from the wrongful act can be listed as follows within the framework of the general provisions: A nurse’s unlawful act or inaction when necessary, attribution of fault to the nurse, harm to the patient, causality between the harm and the unlawful act. Indeed, the nurse’s wrongful act targeting the patient violates the physical integrity, in other words, the physical and/or mental health, which is an element of the right of personality. Therefore, such interventions are illegal as a rule. Damage may occur upon the violation of personal rights by the unlawful intervention of the wrongful nurse. If there is a causal link between the harm and the unlawful behaviour of the nurse, it can now be said that the patient can receive compensation arising from the wrongful act. A contractual relationship is not sought in the patient’s claim for compensation based on the tortious act. As a rule, a claim for compensation can only be brought against the self-employed nurse herself/himself. A lawsuit can also be brought to the hospital for the wrongful act of the dependent nurse related to her profession, in that case the strict liability of the employer comes to the fore (article 66 of TBK). In the second possibil41 Kuğuluoğlu et al., p. 89. Terzioğlu/Şahan, p. 136, 140.
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