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In General
According to Code no. 6343 on Performance of Veterinary Surgery Profession, Manner of Constitution for Union and Chamber of Turkish Veterinary Surgeons and on its Operations as well as Implementing Regulation on Performance of Services by Union of Turkish Veterinary Surgeons which is based on mentioned Code, veterinary surgeons are incumbent to examine medical conditions of pets, livestock and other animals, diagnose and treat diseases of such animals, and respect the thoughts and feelings of animal owners.
Veterinary surgeons can be only liable for their faulty malpractice in exactly the same way as medical practitioners. Any medical attention to animal body may result in complication as is the case with human body, where veterinary surgeons cannot be held liable for such complication. For the legality of medical attention applied to the animal, the following conditions must cumulatively exist: informed consent must be taken from the animal's owner, such attention must be necessary and in compliance with medical standards.
Veterinary surgeons may be held liable for malpractice actions in terms of legal, criminal and professional responsibilities, whereas veterinary surgeons working in administrative institutions should be examined in terms of administrative judgment.
In general, the case law determines malpractice criteria in veterinary surgery as in the followings:
- Actions by veterinary surgeons must have been performed with professional standards lower than that of actions by any average veterinary surgeon
- There must be causal link between the medical attention and the damage. In other words, the damage or death incurred by animal must have arisen out of medical attention applied by veterinary surgeon.
- In accordance with Turkish Code of Obligations no. 6098 the animal owner must not have been faulty or less faulty (than the veterinary surgeon) in terms of causing damages. While such is the case, in the event that the veterinary surgeon's faulty action subsequent to fault by the animal owner is proven, the indemnity may be mitigated.
In this study, only the legal liabilities of veterinary surgeons and the consequences of such liabilities are examined by us. On the other hand, the criminal liability of veterinary surgeons enables that, as considered under title (2), animal owners may file criminal complaint before public prosecution Office against veterinary surgeons based on malpractice action applied to animals, alleging charges in scope of "causing damage to property" under article 151 of Turkish Criminal Code no. 5271, while also the owners may submit a complaint petition against the veterinary surgeon to his registered Chamber. It must be also noted that the veterinary surgeon who is found to have committed "causing damage to property" crime may be condemned to 4 months to 3 years in prison or judicial fine, in addition may be given written warning or imposed administrative fine or temporary dismissal from the performance of profession from 15 days up to 6 months by the registered Chamber.
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Legal Status of Animals in the scope of Turkish Law
In this study where veterinary surgeons' legal liabilities will be examined we will first evaluate the legal status of animals in the scope of Turkish Law.
As contrary to many European countries having regulations that allows separate legal protection for animals, despite many debates, Turkish Law grants animals only the status of being "property". Code no. 5199 on Protection of Animals currently in force and other legislation related to animals do not provide for any provision with respect to legal status of animals or any provisions that mean animals are not properties. Furthermore, as set out under the third section of Code no. 5199 on Protection of Animals, the animal trade is allowed, and along with other legal provisions they are counted as movable assets subject to possessory lien, as such one can articulate that animals are considered as properties in terms of legal status.
Although there are many debates on the argument that animals are deemed as properties in terms of law, the consensus is reached on the fact that animals are subject to rights in rem. Therefore, the animal owner is entitled to claim rights due to damages to the animal. However, the veterinary surgeon's legal, criminal, administrative or professional-disciplinary liability, based on malpractice, starts with such animals being pets or controlled animal or owned livestock in the status of owned animals.
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Nature of Veterinary Surgeon's Legal Liability
a. Contractual Liability
Veterinary surgeons are under legal liability arising out of treatment contract. According to such contract, the animal owner assigns the veterinary surgeon as proxy in regard of treatment to be applied onto animal where such relation is qualified as "contract of mandate". Pursuant to such contract, veterinary surgeon must apply treatment with utmost care based on his experiences, inform the animal owner and provide notices concerning treatment period.
b. Veterinary Surgeon's Liability as Employer
According to article 66 of Turkish Code of Obligations, veterinary surgeons may have to compensate losses/damages regardless of faulty action as per employer's liability in case (i) the assistant medical practitioner performed an action that is detrimental to the animal and by extension to the animal owner himself, (ii) such assistant medical practitioner is being employed by an affiliated veterinary surgeon under subordination, (iii) detrimental action occurred in the course of service. Such employed practitioner can be sued against and claimed compensation in scope of torts. Article 7 of Code no. 5199 on Protection of Animals provides for that medical attention authority rests only with veterinary surgeons, as such assistant practitioner who remains outside of contractual relation between the animal owner and the veterinary surgeon and who is not incumbent to medical attention will only be liable in scope of torts provisions.
c. Negotiorum Gestio
Negotiorum gestion is most generally in question in such circumstances as earthquake, traffic accident while also the life of animal depends on state of emergency for which the animal owner's consent cannot be received or when there cannot be any contract or any time to conclude the contract with the animal owner. However, if the deed is not in favour of the animal's interest or in line with the owner's possible will, then the veterinary surgeon's action will be deemed illegal. The veterinary surgeon will be held liable in such case as per negotiorum gestio provisions set out under article 526 and sequel of Turkish Code of Obligations.
Tort
Veterinary surgeon may have caused damage to the animal in the course of medical attention without any contract with the animal or with an invalid contract. In such case, pursuant to article 49 of Turkish Code of Obligation liability arises with respect to tort provisions based on faulty action. For the veterinary surgeon to be held liable, the following conditions must be cumulatively satisfied: illegal action, the veterinary surgeon's fault, such faulty action causing damage to the animal owner, and casual link between damages and the action.
In regard of such cases, according to article 50 of Turkish Code of Obligations, the burden of proof to substantiate the damage and the fault by the faulty party rests with the injured party. Therefore, in terms of tort-based cases, the animal owner must prove the illegality, faulty action, damage and causal link.
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Compensation
a. Pecuniary Damages
The veterinary surgeon who has caused the death or injury of an owned animal due to his malpractice is liable for treatment and hospital expenses, additionally required surgery expenses and the animal's pecuniary worth to the animal owner. Some authors in literature consider that the real worth of the animal must be calculated based on investments made for the animal such as vaccination, castration and education as well as costs to replace such an animal.
b. Non-pecuniary Damages
The cases for non-pecuniary damages aim to compensate non-pecuniary losses incurred by the animal owner such as sorrow, grief, sadness or loss for joy of life. However, it should be noted that non-pecuniary damages must be in such amount that it will not lead to injured party's enrichment.
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Competent and Authorized Court
a. With regard to the Claims for Damages due to Non-compliance with Contract
Any claims for damages due to malpractice applied by veterinary surgeon to animal which has caused damages to the animal will in principle be filed on the ground of non-compliance with contract, where such claims will be heard by consumer court. It should be noted that, pursuant to Code no. 7251 Amending the Civil Procedural Code and Other Codes, entered into force upon publication in Official Journal dated 28 July 2020, application to mediation has become pre-requisite to file a suit before consumer courts.
As the general authorization rules so require the claims for damages can be filed at the venue where the defendant has his residence at the time of filing of the case. Additionally, in respect of claims for damages to be filed before consumer courts, such courts at (i) the venue of performance of contract and (ii) the claimant's residence address can also be authorized to hear the case.
b. With regard to the Claims for Damages Due to Tort Liability and Negotiorium Gestio
In cases when veterinary surgeon and the animal's owner has no contractual relation, negotiorium gestio, torts provisions or; for torts caused by assistant medical practitioner, employer's liability and torts provisions will be regarded and handled by the general competent court, the civil court of first instance.
In claims for damages based on torts, in addition to general competent courts, the venue of court can also be (i) the place where the tort was committed, (ii) the place where the damages occurred, and (iii) the injured party's residence
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Term of Litigation
a. With regard to the Claims for Damages due to Non-compliance with Contract
The time bar for claims for damages due ton on-compliance with Proxy agreements is 5 years from the date on which the damages have become known.
b. With regard to the Claims for Damages Due to Tort Liability
With regard to the claims for damages filed based on tort liability due to malpractice, the time bar is 2 years up to 10. However, the malpractice action who constitutes criminal penalty requiring longer time bar period, such longer period will apply.
c. With regard to the Claims for Damages Due to Negotiorium Gestio
As the Turkish Code of Obligations does not provide for any time bar provision concerning negotiorium gestio, settled case-law of the Supreme Court must be taken into consideration, which has adopted so far that in such cases the time bar is 10 years. Such term starts to proceed from the date on which the agent acted without Proxy.
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Conclusion
In consideration of the above, to prevent any claims for damages and any criminal charges or professional liabilities which were not studied in this article, veterinary surgeons must, in the course of all treatment process, inform the animal owner's on treatment options, risks, complications and have an informed consent signed in return, in addition, offer the animal's owner options for dispatch, if they do not possess necessary equipment for medical attention, keep records regularly and in order and store them, act in compliance with medical standards in the course of medical treatment to the animal, and inform the animal's owner in detail if the animal incurs damages or perishes after treatment.
Apart from that, it bears great importance that animals be granted a new legal status by being taken out of property status on a constitutional ground as in many constitutions, and new crimes must be qualified under Turkish Criminal Code "animal killing" title to punish those who heavily cause damage to animals; last but not least, veterinary malpractice liabilities must be regulated for the purpose of resolving the current issues.
BIBLIOGRAPHY
ALAT ER, A. D. (2021), "Veteriner Hekimliğinde Malpraktis", Veteriner Farmakoloji ve Toksikoloji Derneği Bülteni, 12/2: 89-104.
ÇELEBİ, Ö. (2018), "Kişi ve Eşya Ayrımı Bağlamında Hayvanların Hukuki Statüsü", İstanbul Hukuk Mecmuası, 76/2: 559-622.
EROL SARIYEV, A. (2016) "Veteriner Hekimin Sözleşme Dışı Sorumluluğu", Türkiye Barolar Birliği Dergisi, Kasım-Aralık 2016/127: 263-298.
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