Abstract

In order for criminal or legal liability to occur, it is necessary that there be a causal link between the unlawful act and the result. Since causality can sometimes be very broad, many causality theories have been created to narrow down liability. This study aims to review the Court of Cassation decisions in Türkiye concerning causation in criminal proceedings in medical malpractice cases, to illustrate how expert reports are interpreted by legal professionals, and to analyze the causation approach accepted by the high court, thereby offering a method to guide medical experts in Türkiye. Court of Cassation’s decisions cases were scanned via https://www.sinerjimevzuat.com.tr/, https://karararama.yargitay.gov.tr/. 119 decisions of the 12th Criminal Chamber of Court of Cassation between 01.01.2012 and 31.12.2023, were included in the study. Statistical evaluation was made with the "Statistical Package for Social Science for Windows 28.0" program. In 52.10% (n=62), experts expressed the opinion that "even if appropriate treatment was given, it isn’t certain to prevent the outcome." In 53 (85.48%) of these 62, 12th Criminal Chamber of Court of Cassation decided that causality couldn’t be determined with certainity so the medical staff couldn’t be responsible for death or injury. In 77 (65.71%), despite the lack of causality, 12th Criminal Chamber of Court of Cassation was of the opinion that health professionals who are also public officials should be punished for “neglect of duty” (TPC 257/2). Experts' preparation of their reports in accordance with the rules determined in international guidelines will ensure that responsibility is determined correctly. Therefore, in every medical malpractice report prepared by experts, there must be an evaluation based on scientific probabilities regarding the causality between the detected error and the resulting damage. Legal evaluation of expressed scientific possibility is within the jurisdiction of the judge.

Key words: Malpractice, Causality, Criminal Law