Legal Status of Animals and Liability of Veterinarians for Misintervention

1. Generally

Veterinarians, as regulated both in the Law No. 6343 on the Execution of the Veterinary Medicine Profession, the Formation of the Turkish Veterinary Medical Association and its Chambers, and the Practice Regulation on the Execution of the Services of the Turkish Veterinary Medical Association prepared based on this Law; They are responsible for examining the medical conditions of pets, farm animals and other animals, diagnosing and treating the diseases of these animals, and respecting the feelings and thoughts of animal owners.

Veterinarians, just like medical doctors, can only be held responsible for faulty application errors . Because, just like interventions to the human body, complications can occur in interventions made on animals, and it is not possible to hold veterinarians responsible for these complications. In order for the veterinarian’s intervention on the animal to be lawful, the conditions for obtaining the informed consent of the animal owner before the intervention, the necessity for the intervention and the compliance of the intervention with medical standards must be present.

Due to malpractice, legal, criminal and professional responsibilities of veterinarians may come to the fore, and veterinarians working in administrative institutions should be examined in terms of administrative judgment.

In general, according to judicial decisions, we can list the criteria for malpractice in veterinary medicine as follows:

  • The veterinarian’s actions must have fallen below the professional standards that the average veterinarian would provide.
  • There must be a causal link between the intervention and the harm. In other words; The harm or death of the animal must be due to the medical intervention applied by the veterinarian.
  • As regulated in the Turkish Code of Obligations No. 6098, the owner of the injured animal must not have any fault or be less than the cause of the damage. If this is still the case, if it is proved that the veterinarian has an added fault, the compensation to be awarded against the veterinarian may be reduced.

In this study, only the legal responsibilities of veterinarians and the consequences of this responsibility were examined by us. However, if it is necessary to briefly mention criminal liability; As examined under heading (2), it is possible to file a criminal complaint against the veterinarian before the Public Prosecutor’s Office in terms of the crime of damaging the property regulated in Article 151 of the TPC No. We would like to point out that you can submit a complaint petition to the Chamber in which you are located. The veterinarian, who is proven to have committed the crime of damaging the property, is punished with imprisonment from 4 months to 3 years or a judicial fine, and a written warning and fine by the chamber he is affiliated with,

2. Legal Status of Animals in Turkish Law

In this study, in which we will examine the legal responsibilities of veterinarians due to erroneous medical interventions on animals, first of all, it will be necessary to evaluate the legal status of animals in Turkish Law.

It is known that, unlike European countries, which have legal regulations regarding the fact that animals have a separate legal status, despite many debates in Turkish Law, the property of being an object continues. Because the Law No. 5199 on the Protection of Animals and other legislation in force do not include any regulation on the legal status of animals and any provision regarding the absence of goods. Whereas; Considering that animals are allowed to be traded in the third chapter of the Law No. 5199 on the Protection of Animals and they are counted among the movable assets on which the right of pledge can be established in other legal regulations, it would not be wrong to think that animals are included in the status of goods.

In our law, it is known that there is a consensus on whether an animal is considered a property in the legal sense, but it is a matter of real rights. In this regard, since it is possible for the owner of the goods/animal to claim rights due to the damages caused to the animal in the status of goods in real right, the veterinarian must be able to talk about any legal, criminal, administrative or professional-disciplinary liability that may arise after the medical intervention to be applied to the animals. The animals in question must have the status of pet animals, controlled animals or owned farm animals.

3. The Nature of the Veterinarian’s Legal Responsibility

a) Contractual Liability

Veterinarians have legal responsibilities arising from the treatment contract. In line with this contract, the animal owner appoints the veterinarian for the treatment to be given to the owner’s animal, and a “proxy contract” is established between the animal owner and the veterinarian. In line with the contract, the veterinarian should carefully treat the patient with his experience and knowledge, inform the patient’s owner and make notifications about the treatment process.

b) Veterinarian’s Responsibility as Employer

Veterinarians, according to Article 66 of the Turkish Code of Obligations, (i) if an action that harms the animal and therefore the owner of the animal is committed by the assistant health personnel , ii) these assistant health personnel are employed in the working area of ​​the veterinarian they are affiliated with and are in a relationship of loyalty. if it works, (iii) have occurred during service actions that undermineHowever, the veterinarian who employs this person may have to pay compensation in accordance with the liability provisions of the employer, even if it is faultless. In terms of the personnel in question, a compensation case can be substituted according to the provisions of tortious act liability. Because, pursuant to Article 7 of the Animal Protection Law No. 5199, only veterinarians have the right to intervene in animals.

c) Working without a Power of Attorney

Working without a power of attorney is generally in question in compulsory situations such as earthquakes, traffic accidents, where there is no opportunity and time to conclude a contract with the animal owner, but there is also an emergency for the animal or the animal owner’s permission cannot be obtained. However, if the performance of the business is not in accordance with the benefit of the animal or the possible will of the animal owner, the veterinarian’s act is considered unlawful. In this case, the veterinarian working without a power of attorney, Turkish Code of Obligations 526. vd. will be liable according to its provisions.

d) Tort

The veterinarian may have caused a harm during the medical intervention applied to the animal in cases where there is no contractual relationship with the animal owner or the contract is invalid. In this case, according to article 49 of the Turkish Code of Obligations, he may be held liable in accordance with the tort provisions based on fault liability. In order to be able to talk about the veterinarian’s liability for tortious act, the elements of the illegal act, the existence of the veterinarian’s fault, a loss and damage to the animal owner due to this act, and the existence of a causal link between the act and the act must have occurred together.

In this case, according to Article 50 of the Turkish Code of Obligations, the injured party will be under the burden of proving the damage and the fault of the person who caused the damage. For this reason, the owner of the animal, who files a lawsuit based on the tortious act liability, has to prove the illegality, fault, damage and causal link.

4. Types of Compensation

a) Financial Compensation

The veterinarian, who caused the death or injury of a owned animal due to his faulty medical treatment, is responsible for covering the treatment and hospital costs, the extra surgery costs and the value of the animal to the owner of the animal. In the doctrine, while calculating the real value of the animal, it is evaluated that it includes the costs of purchasing a new animal as well as the investments made in the animal such as vaccination, sterilization and training.

b) Moral Compensation

On the other hand, in moral compensation cases, it aims to eliminate the feelings of pain, grief, anguish that the animal owner will experience after the loss or the loss of the joy of living. However, it should not be forgotten that; The non-pecuniary damage to be awarded by the court shall be in an amount that will not lead to the enrichment of the injured party.

5. Authorized and Competent Court

a) In Compensation Lawsuits Opened for Nonconformity of Contract;

As a rule, compensation cases will be filed by animal right owners due to the damage caused to the animal due to the wrong medical intervention applied by the veterinarian, and the court in charge of these cases will be the “consumer court” . It should be emphasized that; With the Law No. 7251 on the Amendment of the Code of Civil Procedure and Certain Laws, which was published in the Official Gazette dated 28.07.2020 and entered into force, applying to mediation in cases to be filed in consumer courts has become a litigation requirement.

In accordance with the general jurisdiction rules, compensation cases can be filed at the place of residence of the defendant on the date of the lawsuit. However, in addition to this, i) the place of performance of the contract and (ii) the court of the place where the plaintiff’s residence address is located will also be authorized in compensation cases to be filed in consumer courts .

b) In Compensation Lawsuits Opened Based on Tort Liability and Provisions of Working without Power of Attorney;

The possibility that there is a contractual relationship between the patient and the physician gestio business vision or tort principles to again assist health personnel in tort related to the man who opened the basis of the provisions of the responsibility of running cases of tort lawsuits to be substitute by going to the responsibilities of public officials that the court “first-instance court” will be seen in the .

In the compensation cases to be substituted based on this reason, if the tortious act liability is to be relied on together with the general competent courts mentioned above, in addition to the general competent courts, (i) the place where the tortious act occurred, ii) the place where the damage occurred, (iii) the court of the place where the domicile of the injured person is located. can also be opened.

6. Time to File a Lawsuit

a) In Compensation Lawsuits Opened for Nonconformity of Contract;

The statute of limitations for compensation cases to be filed due to breach of the contract of attorney is 5 years from the date of learning of the damage.

b) In Compensation Lawsuits Opened Based on Tort Liability;

The statute of limitations of 2-10 years will be applied in compensation cases to be filed based on tortious action due to erroneous medical intervention. However, if the medical malpractice requiring compensation requires a penalty that requires a longer statute of limitations, then the statute of limitations will apply.

c) In Compensation Lawsuits to be Filed Based on the Provisions of Working without Power of Attorney;

Since the Turkish Code of Obligations does not contain a specific regulation regarding the statute of limitations for lawsuits to be filed pursuant to the provisions of acting without a power of attorney, the 10-year statute of limitations, which is the general statute of limitations, as seen in the decisions of the Court of Cassation, also finds application in cases to be filed in accordance with the provisions of doing business without a power of attorney. The date on which the statute of limitations begins begins to run from the date on which the employee works without a power of attorney.

7. In conclusion

Considering all the processes mentioned above, in order to avoid the compensation cases that may be brought against them by veterinarians and their criminal and professional responsibilities, which are also excluded from the scope of this study; During the whole treatment process, the animal owners should be informed about the treatment options, the risks of the treatment and complications, and the informed consent form should be signed, and if the animal does not have the necessary equipment for the medical intervention, the animal owner should be offered an option for referral. During the treatment to be applied, it should be acted in accordance with the medical standards, and the owner of the animal should be informed in detail in case the animal is harmed or dies after the treatment.

In addition, animals should be removed from the status of goods and given a separate status on the constitutional basis, as in the constitutions of many countries today, new types of crimes are regulated under the title of killing animals in the Turkish Penal Code, and heavy penal sanctions are foreseen against perpetrators who harm animals, and in addition to these, medical treatment for animals. Legislation on malpractice liability is important in terms of solving existing problems.

REFERENCES

ALAT ER, AD (2021), “Malpractice in Veterinary Medicine” , Bulletin of the Society of Veterinary Pharmacology and Toxicology, 12/2: 89-104.

CELEBI, O. (2018), “The Legal Status of Animals in the Context of Person and Property Separation” , Istanbul Hukuk Mecmuası, 76/2: 559-622.

EROL SARIYEV, A. (2016) “The Non-Contractual Responsibility of the Veterinarian” , Journal of the Union of Turkish Bar Associations, November-December 2016/127: 263-298.

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