Allegations of Negligence in Death at Hospital Not Investigated, Says Constitutional Court

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The Constitutional Court has concluded that the right to life of a patient was violated as her death was caused by medical negligence and lack of postoperative medical services at the Cebeci Hospital of Ankara University.

Diagnosed with cancer, Yaşar Gündüz lost her life after having a surgery at the hospital. Her son lawyer Murat Kemal Gündüz appealed to the administrative court and filed a lawsuit into her passing. As the lawsuit was rejected and the verdict of rejection was upheld by the Court of Cassation, Gündüz appealed to the Constitutional Court.

Speaking to bianet about the issue, lawyer Gündüz has indicated that her mother was not only diagnosed with cancer, but she also had a kidney disease. The hospital did not have even an intensive care unit, according to Gündüz. "We were also surprised when we heard that the hospital where she was operated on did not have postoperative service or a nephrology department", Gündüz has told bianet.

'Court did not investigate allegations of negligence'

In his appeal to the Constitutional Court, Murat Kemal Gündüz indicated that "his mother was not provided with sufficient medical treatment, they could not reach the attending physician, their requests for referral from the hospital without an intensive care unit or nephrology department to more fully-fledged hospital with an intensive care unit were not fulfilled for days although her condition deteriorated and this delay in referral caused her death."

Announcing its justified ruling, the Constitutional Court has concluded that the administrative court rejected the lawsuit solely based on a report issued by the Forensic Medicine Institute.

The supreme court has also indicated that the administrative court did not investigate the allegations that "the physician who did the surgery could not be reached for four-five days, the patient was treated by not attending doctors, but by practicing physicians, the hospital did not have a nephrology clinic or a dialysis machine, therefore, the hospital was insufficient for treatment and there was a delay in referral despite this insufficiency."

"That the court did an inspection to detect the physicians who took part in the treatment of Yaşar Gündüz cannot be detected, either", the Constitutional Court has added further.

Underlining the condition of urgency and diligence in conducting penal investigations into the right to life and right to protection of material and nonmaterial assets as well as in pursuing lawsuits for damages in judicial and administrative justice, the Constitutional Court has ruled that the right to life has been violated on procedural grounds.

With the right to life guaranteed by the Article 17 of the Constitution violated, the file will be referred to the Ankara 3rd Administrative Court so that the consequences of the violation can be eliminated in retrial.

What happened?

Diagnosed with cancer, 78-year-old Yaşar Gündüz underwent a surgery at the Cebeci Hospital of Ankara University Medical School on January 27, 2010. She lost her life two days later.

Her relatives appealed to the Ankara University Presidency, requesting that the material and nonmaterial damages caused by her death be compensated. As their requests were rejected, they filed a lawsuit for damages at the Ankara 3rd Administrative Court.

'Distant diagnosis with consultation on phone'

In the petition submitted to the court, it was indicated that Yaşar Gündüz "lost her life as a result of severe neglect of duty caused by a failure to provide her with the necessary care and treatment services during and after the surgery."

The petition also claimed that "though an attending physician was called from the pulmonology department, no physicians showed up and as her condition deteriorated, they tried to have a diagnosis by consulting pulmonology and nephrology doctors from other buildings by phone."

'The only treatment was hitting her in the back'

Not treated at the hospital, the patient was abandoned to her fate, according to the petition of her relatives:

"While all these were happening, an attending physician equipped with necessary medical expertise could not be found and she was left to incompetent practicing physicians. The patient was abandoned to her faith and she was not diagnosed all through the weekend. The only method of treatment was to hit her in the back because there was edema in her lungs."

The petition also indicated that the referral of the patient to another hospital was requested, but these requests were not fulfilled. Only when the patient passed out, she was referred to İbni Sina Hospital, where she lost her life, according to the petition of the relatives.

Court gave a ruling based on Forensic Medical report

The 1st Specialized Board of Forensic Medicine Institute issued a report on the patient, indicating that she died as a result of complications caused by the tumor, the follow-up and treatment before and after the surgery were in compliance with medical rules and there was no negligence that could be attributed to the administration or healthcare professionals.

Relying on this report and conducting no further investigation int o the allegations of negligence, the Administrative Court rejected the lawsuit. As the verdict of rejection was upheld by the 15th Chamber of the Court of Cassation on March 24, 2014, the relatives of Yaşar Gündüz made an individual application to the Constitutional Court. (AS/SD)