ABSTRACT
Although the subject of the contract of work can be various, in the contract of work, the contractor undertakes to create a work, while the employer has an obligation to pay in return. In this direction, the components of the contract of work appear in the form of creating a work, the cost and the agreement of the parties. Although medical interventions are generally evaluated according to the provisions of the agency contract, we may realize that aesthetic interventions, which is one of the medical interventions, are often not evaluated within the provisions of agency contract. In this regard, while examining whether aesthetic operations can be evaluated within the scope of the contract of work, the criteria that are important here are in terms of the purpose of the intervention and whether the result can be committed. Likewise, in order for an aesthetic intervention to be the subject of the contract of work, the physician must be able to promise a result. However, aesthetic operations also vary today, and in some cases, it may be argued that there is a contract of work relationship in cases where the result cannot be promised or the result cannot be obtained. There are several decisions of the Court of Cassation and opinions of the doctrine on this issue. While the Court of Cassation interprets aesthetic operations for beautification within the scope of the contract of work, there are also different views for the same interventions in the doctrine.
In this study; while evaluating whether aesthetic operations can be the subject of the contract of work, the definition and nature of the contract of work will firstly be examined and then the components that form the contract of work will be explained.
I. INTRODUCTION
According to the report of International Society of Aesthetic Plastic Surgery (ISAPS); Turkey has become the fifth country in the world where the most aesthetic procedures are performed. In this study, while evaluating whether aesthetic operations can be the subject of the contract of work, the definition and nature of the contract of work will firstly be examined and then the components that form the contract of work will be explained. Afterwards, which contract provisions can be subject to medical interventions will be discussed, and finally, whether the aesthetic operations can be the subject to the contract of work will be evaluated. This evaluation will be conveyed within the framework of various decisions of the Court of Cassation and the opinions in the doctrine.
II. WHAT IS A CONTRACT OF WORK?
Before addressing whether aesthetic operations can be evaluated within the scope of the contract of work, it will be necessary to focus on the definition and elements of the contract of work. The contract of work is a contract that imposes a debt on both parties (sinallagmatic), is consensual, non-formal, includes instantaneous and continuous performance and complex1. The definition of a contract of work in the doctrine is “a contract that creates rights and imposes obligations on both parties that the contractor undertakes to create and deliver a work in return for the fee that the employer undertakes to pay”2. Based on this definition, the contract of work is a contract of “performing duties” that includes the mutual acts of the parties. Here, the contractor has the obligation to create and deliver the work, while the employer’s obligation is to pay the price for the contractor’s performance3. Since the scope of work that the contractor is obliged to deliver includes everything that requires art and skill and physical labor, the work may emerge as both an intellectual work or a concrete one.
III. COMPONENTS OF THE CONTRACT OF WORK
A. Creating a Work
As mentioned above, the work does not only consist of tangible goods, but also products of intellectual nature can be considered within the scope of the work. For this reason, even if the subject of the contract of work is not of a material nature, if the result can be promised, it may be the subject of the contract of work4. In other words, if the performance can be determined objectively and the result can be promised to the employer in advance, the performance subject to the contract of work can be accepted as the work subject to the contract of work, even if it is not a material fact5.
The fact that the work can be committed objectively in advance means that the contractor, who is the party responsible for creating the work in the contract of work, is in a position to objectively achieve the result expected by the employer, and the factors that cannot affect the realization of this result by the contractor are not determinative. For this reason, it is not possible for the following situations to constitute the subject of the contract of work, since these results depend on many external factors and variables. For instance, the teacher cannot guarantee the efficiency of the lessons given by him/ her; the lawyer cannot undertake the outcome of the case and the doctor cannot undertake the effects of a medical intervention6.
B. Promise of the Fee
It has been explained above that the contract of work is a contract that imposes obligations on both parties (sinallagmatic). Here, the contractor’s obligation is to create the work, while the employer’s obligation is to pay the fee for the work. The fee is one of the essential elements of the contract of work and it will not be possible to qualify a contract without a fee as a contract of work. The fee, which is one of the essential components of the contract, must be determined in money7.
C. Agreement Between the Parties
According to Article 1 of the Turkish Code of Obligations (“TCO”) “The contract is concluded by mutual and consentaneous expression of intent of the parties”. These mutual wills (consensus) of the parties should enclose the essential elements of the contract8.
IV. EVALUATION OF MEDICAL INTERVENTIONS WITHIN VARIOUS TYPES OF CONTRACTS
A. General
Whether the medical interventions will be evaluated within the scope of the contract of work or agency contract varies depending on whether the result can be committed by the contractor or not. In the doctrine, various opinions are put forward about the nature of the treatment contracts between the doctor and the patient. For example, in German law, this contract is predominantly considered as a service contract, while in Turkish law, the dominant view is that the treatment contract is defined as an agency contract. However, it is considered that not every contract between the physician and the patient can be evaluated within the scope of agency contracts, and issues such as the preparation of the promised dental prosthesis may be the subject of the contract of work9.
B. Evaluation of the Treatment Contract with Other Contract Types
Agency contracts are defined in Article 502 of the TCO as “a contract by which the agent undertakes to conduct a certain business or provide certain services of the principal”. As it can be seen from the definition, the performance of the agent consists only of doing careful work and the agent cannot be held responsible for the failure of the result10. In the contract of work, on the other hand, since the result must be able to be promised, the contractor is dependent on his/ her commitment and responsible for the result. In other words, contract of work focuses on the result rather than the duty of care and attention11.
The agency contract and the physician contract show some similarities in terms of time, relative independence and fee. First of all, when it is examined in terms of time, both in an agency contract and contract of work, the performance of working is not dependent on the time record. For example, the retainer contract is not usually concluded for a certain period of time and continues at least until the client’s case is concluded. In the patient-physician relationship, the contract continues during the treatment of the patient and is not limited to a certain period in advance, and the physician does not have a commitment regarding to the completion of the treatment12.
Another similarity between the agency contract and treatment contract is the relative independence of the agent. As explained in Article 505 of the TCO, the attorney can leave the instructions of the appointer, if it can be accepted objectively that he/ she would have given permission if he/ she had known about the situation, when the attorney did not have the opportunity to obtain permission from the appointer. The relative independence of the agent accepted in the agency contract is generally accepted for jobs that require expertise. Although the physician is independent while performing the treatment, the physician has to obtain the patient’s consent in some important cases before or during the intervention13.
The last similarity between the agency contract and the treatment contract will be examined within the scope of remuneration. Although the fee is not considered as one of the obligatory elements of the contract in the definition of the agency contract, the agent is entitled to the fee as per the agreement of the parties on this matter or professional practice. Likewise, in the treatment contract, even if there is no agreement between the patient and the physician in terms of any fee, it is accepted that the contract has a price as per professional practice14.
Finally, when the contract of work and the treatment contract are examined together, the contractor’s performance in the contract of work is to create a work and deliver it to the employer, as explained before, while in the treatment contract, the physician is obliged to provide the treatment of the patient or the medically necessary intervention carefully in accordance with the objective criteria and the requirements of medical science. For this reason, just as in the agency contract, the focus in the treatment contract is performing the deed carefully and diligently, while in the contract of work, the focus is on the delivery of the work, therefore the result promised to the employer15. In addition, if the contractor, who is a party to the contract of work, has created a defective work, he/ she can use one of the alternative rights stipulated in article 475 of the TCO. However, one of these rights will not always be applicable in the treatment contract16. Furthermore, there is a high trust relationship between the patient and the physician during the conduction of aesthetic operations, yet this situation is compatible with the agency contract rather than the contract of work17.
V. EVALUATION OF WHETHER THE RELATIONSHIP BETWEEN THE DOCTOR AND THE PATIENT DURING THE PERFORMANCE OF THE AESTHETIC OPERATIONS HAS THE COMPONENTS OF THE CONTRACT OF WORK
Before the evaluation on whether aesthetic operations can be subject of the contract of work, the elements of the contract of work have been examined and the similarities and differences of medical interventions, that cannot be considered within the scope of aesthetic operations, with other contracts were discussed. At this point, the first determination to be made is what aesthetic operations mean and then whether the contract between the doctor and the patient during the realization of these aesthetic operations carries the elements of the contract of work will be examined. The first determination to be made is what aesthetic operations mean and subsequently, whether the treatment contract realized during the conduction of aesthetic operations contains the components of contract of work will be discussed.
A. Which Aesthetic Operations Should Be Evaluated Under Contract of Work?
The most important factor in determining which of the aesthetic interventions will be considered within the scope of the contract of work is the purpose of this intervention. If the intervention conducted by the hospital is not primarily for treatment but beautification purposes and the result can be guaranteed, these operations can be evaluated within the scope of the contract of work. For example, dental prosthesis, filling, rhinoplasty operations can be given as examples of aesthetic operations for beautification purposes18.
Aesthetic operations carry the renumeration element, which is the second of the mandatory elements of the contact of work, as a requirement of professional practice. As mentioned above, performing interventions such as dental prosthesis, filling, rhinoplasty without charge does not coincide with professional practice. The other element of contract of work, which is the agreement of the parties, exists as there is an agreement between the patient and the physician regarding the aesthetic interventions as to how this intervention will be performed. The element that is likely to cause a debate on this issue may arise in terms of the creation of a work. In order for a work to be subject to a contract of work, that work must be committable. In terms of aesthetic interventions, if the aesthetic intervention produces a result and the physician can promise the result to the patient, it may be the subject of the contract of work.
However, it should be emphasized that if the result promised by the plastic surgeon and the result it produces at the end of the work can be described as successful and in accordance with the standards of medical science, the patient’s satisfaction with the result does not affect the acceptance of this result as a work. In addition, considering that aesthetic operations are also medical interventions, in the event that the result cannot be revealed due to factors other than the experience and care of the physician, it should be evaluated within the scope of the work contract. Therefore, some authors in the doctrine have asserted that aesthetic operations should be evaluated within the scope of contract of work, since the intervention has been made to create a result even though the element of creation of work has not been realized19.
Another aesthetic intervention that should be mentioned is the face transplant. In today’s world, developments in medical science allow people to perform face transplants. Although it is perceived that this revolutionary development is made for beautificationpurposes, these interventions aim to normalize and live an average life. With a face transplant, the person will not look like the owner of the new face, but will only look better compared to the deformed face. As a result of this improvement, the person will be able to blend into society more easily and strengthen his/her communication. For these reasons, it would not be correct to say that a person’s face transplant is only for beautification20. The World Health Organization defines health as: “A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Based on this definition, the treatment aspect of face transplants, which is a step towards a person’s mental well-being, should not be ignored. When we evaluate whether facetransplantations can be considered within the scope of the contract of work, in my view, since face transplantation is an operation for both therapeutic and beauty purposes, and although medical developments have advanced in face transplantation, the result cannot be guaranteed as safely as other aesthetic operations, so the physician will be able to fulfill his/her debt by performing his/ her act in an appropriate and meticulous manner in accordance with the standards of medical science and complying with objective criteria. For this reason, it would be more appropriate to evaluate this patient-physician relationship within the framework of the agency contract provisions.
The most important factor in determining which of the aesthetic interventions will be considered within the scope of the contract of work is the purpose of this intervention.
B. Court of Cassation Decisions on the Subject
When we examine the opinions of the Court of Cassation on the subject, we see that aesthetic operations for beautification are accepted as the subject of the contract of work. In one of its decisions, the Court of Cassation concluded that this relationship between the patient and the physician should be evaluated within the scope of the contract of work, since the physician has committed a certain result to the patient regarding the aesthetic appearance21. In another decision, the Court of Cassation decided that: “The material fact based on the lawsuit is to put silicone on the breasts and to give the breasts a beautiful appearance in accordance with the desired and agreed shape. When the legal characteriza[1]tion of the desired result and the facts based on it is made, it is clear that there is a contract of work between the parties regulated in Articles 470 and the following of the TCO”22. In one decision of the 15th Civil Chamber of the Court of Cassation, the patient wanted the nipples to be changed at the same time as breast reduction surgery for therapeutic purposes, and since this operation was also performed, this relationship between the patient and the physician was evaluated under the contract of work because the operation was not made purely for the purpose of healing, but also aimed at beautifying the patient.23
Moreover, according to the Court of Cassation, the relationship between the patient and the physician can be evaluated within the scope of the contract of work, if the physician has made a commitment to the patient regarding beautification, even in cases where the main purpose is not beautification but for therapeutic purposes24. It should be noted that the Court of Cassation has stated in a decision that the physician has a duty of notification if the desired outcome promised to the patient cannot be expected. In the relevant decision, after the plaintiff went to the aesthetic and beauty center to have laser needle epilation for facial hair, stains and pits occurred in the upper lip area of the plaintiff following the last epilation session, and the plaintiff claimed pecuniary damages and moral damages. In this decision, the Court of Cassation decided that the relationship between the plaintiff and the defendant has the quality of a contract of work, and stated that the health and aesthetic center, who is the defendant, has an obligation to warn and enlighten the plaintiff against even the smallest complications that may occur due to the obligation of loyalty25.
C. The Views in the Doctrine on the Subject
There are various opinions in the doctrine according to the types of aesthetic interventions. According to Özay, the point to be considered in evaluating whether aesthetic interventions are within the scope of the contract of work is whether the result can be promised or not, in other words, the commitment of the physical appearance. Therefore, according to Özay, aesthetic operations that the result cannot be committed should be evaluated within the scope of the agency contract, not the contract of work26.
Although the realization of these productions can be considered within the scope of the contract of work, since only the production of filling and prosthesis is produced by the dentist, without focusing on the purpose of treatment, and the result can be promised, according to Ayan, if these actions are directed towards the purpose of treatment, the main performance will be treatment and the agency contract provisions must be applied instead of the contract of work27. For example, while the manufacture of the orthopedic surgeon’s portable arm or leg can be considered within the scope of the contract of work, and although the physician may promise results in interventions such as replacing artificial organs and indentations, it is argued by some authors in the doctrine that the provisions of the agency contract should be applied because these acts are for treatment purposes28. According to Sarıal, while the manufacture of the above-mentioned prosthesis may be the subject of the contract of work, the application of this prosthesis to the patient will be subject to the provisions of the agency contract, since it is for treatment purposes29.
According to an opposing view, the dentist’s production of dentures instead of root canal treatment, or the operations performed by the aesthetic surgeon for beauty purposes, cannot be the subject of the contract of work, since the dentist or plastic surgeon has no obligation to heal the patient, unless the purpose of the aesthetic interventions we mentioned is treatment30. It is accepted that, as in the above-mentioned decision regarding the patient undergoing laser epilation, it is also accepted in the doctrine that the patient is obliged to be informed comprehensively about aesthetic operations and to be informed and warned about not only possible complications but also all other possible complications31.
There are also opinions contrary to the view of the Court of Cassation that the above-mentioned aesthetic operations may be applied to the provisions of the contract of work. According to these views, as much as the purpose of aesthetic operations is to beautify, they argue that these interventions should be evaluated within the scope of the contract of work, since these interventions add to the health of the patient32. The basis on which those who disagree with the view of the Court of Cassation are based on the fact that the contractor is expected to be able to control all kinds of factors that affect the result, while it may not always be possible for the physician to control all complications and many other factors in terms of aesthetic operations. The provisions of the contract of work cannot be applied to aesthetic operations by the authors who have this view33.
Finally, when we evaluate these aesthetic operations within the scope of the Consumer Protection Law No. 6502, although the relationship between the patient and the physician can be described as a consumer relationship, the optional rights in the consumer law cannot be exercised due to the fact that the result is on the human, and it is impossible to find a response in the consumer law to the factors originating from the patient’s body. Due to the public nature of health services, it is argued that it is not appropriate to interpret the relationship between the patient and the physician in accordance with consumer provisions in aesthetic interventions34.
D. My Consideration
When it comes to the issue of whether aesthetic operations can be evaluated within the scope of the contract of work, the two most important issues are the aim of the operation and whether the result can be promised by the contractor. However, it is difficult to argue that aesthetic operations are always only for therapeutic purposes or only for beautification purposes. For example, if the person undergoes nose surgery due to respiratory distress, but aesthetic intervention is also performed during the surgery, it will be difficult to say that this intervention is only for treatment or just for beautification. At this point, it will be necessary to evaluate whether the physician can commit to the nose image that the patient is likely to have after surgery. For example, before the rhinoplasty is performed, the patient can show the image he or she wants to have, or the physician can present a simulation via artificial intelligence programs, on what the patient will look like after the surgery. In this case, since the result will be committed to, it can be argued that there is a contract of work relationship. As a result, although aesthetic operations can be interpreted within the framework of the provisions of the agency contract, as they are based on a relationship of trust between the patient and the physician and the result is always non-committal, if the criteria explained above are fulfilled, this relationship between the patient and the physician should be interpreted within the scope of the contract of work.
VI. CONCLUSION
In this study, what the contract of work is and the mandatory elements that compose the contract of work have been evaluated and whether aesthetic operations can be the subject of the contract of work have been discussed. In this regard, although the decisions of the Court of Cassation are predominantly in the direction that aesthetic interventions can be evaluated within the scope of the contract of work, it is important that these interventions are for beautification purposes. When the views in the doctrine are examined, it will be possible to argue that there are different views in terms of different aesthetic operations. For this reason, in order for an aesthetic operation to be the subject of the contract of work, the fact that the result can be committed to and that the intervention is for beautification are two important issues. However, it should be emphasized that the purpose of every aesthetic intervention cannot be determined as clearly as black and white. For example, face transplants or orthodontic treatments are interventions for both therapeutic and beautification purposes. For this reason, it is controversial whether the provisions of the contract of work or the provisions of the agency contract should be applied to these interventions.
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FOOTNOTE
1 Cevdet Yavuz, Türk Borçlar Hukuku Özel Hükümler, Beta Yayıncılık, İstanbul 2014, p. 984, Yusuf, Büyükay, Roma Borçlar Hukukunda Hata, Ankara, 2007, p. 42.
2 Fahrettin Aral/ Hasan Ayrancı, Borçlar Hukuku Özel Borç İlişkileri, Ankara 2012, p. 315.
3 Yavuz, Türk Borçlar Hukuku Özel Hükümler, p. 985; Orhan Hudatlı, Eser Sözleşmesinde Yüklenicinin Temerrüdünün Sonuçları Yüksek Lisans Tezi, Ankara 2016, p. 3
4 Cevdet Yavuz, Borçlar Hukuku Dersleri, İstanbul 2012, p. 492.
5 Haluk Tandoğan, Borçlar Hukuku, Özel Borç İlişkileri, Ankara, 1987, p. 2 ff; Emre Gökyayla, Eser Sözleşmesinde Ek İş ve İş Değişikliği, İstanbul, 2009, p. 8 ff.
6 Yavuz, Türk Borçlar Hukuku Özel Hükümler, p. 988.
7 Turgut Öz, İş Sahibinin Eser Sözleşmesinden Dönmesi, İstanbul 1984, p. 2.
8 Yavuz, Türk Borçlar Hukuku Özel Hükümler p. 993.
9 Hudatlı, p. 10.
10 Mustafa Alper Gümüş, Borçlar Hukuku Özel Hükümler, V. 2, 3rd Edition, İstanbul 2013, p. 238.
11 H. Tandoğan, Borçlar Hukuku Özel Borç İlişkileri, V. II, 2nd Edition, İstanbul Üniversitesi Yayınları, İstanbul 1977, p. 26; A. Zevkliler/ Kadir Emre Gökyayla, Borçlar Hukuku, Özel Borç İlişkileri, 18th Edition, 2018, p. 599; Çetin Aşçıoğlu, Tıbbi Yardım ve El Atmalardan Doğan Sorumluluklar Doktorların Devlet’in ve Özel Hastanelerin Sorumluluğu (Hukuki ve Cezai), Ankara 1993, p. 18.
12 Yavuz, Türk Borçlar Hukuku Özel Hükümler, p. 1164; Fikret Eren, Türk Borçlar Hukuku Özel Hükümler, Yetkin Yayınları, 8th Edition, Ankara 2020, p. 729.
13 Eren, Özel Hükümler, p. 738; Yavuz, Türk Borçlar Hukuku Özel Hükümler, p. 1168.
14 Melike Yağoğlu, Hastaneye Kabul Sözleşmesi, Erciyes Üniversitesi Sosyal Bilimler Enstitüsü Yüksek Lisans Tezi, Kayseri 2017, p. 22.
15 Hayrunnisa Özdemir, Özel Hukukta Teşhis ve Tedavi Sözleşmesi, Yetkin Yayınları, Ankara 2004, p. 78.
16 Özdemir, Teşhis ve Tedavi, p. 79- 80; Çağrı Ülker, Hastaneye Kabul Sözleşmesinin Hukuki Niteliği, İstanbul Ticaret Üniversitesi Dış Ticaret Enstitüsü Yüksek Lisans Tezi, İstanbul 2017, p. 76.
17 Yağoğlu, p. 20.
18 Mehmet Ayan, Tıbbi Müdahalelerden Doğan Hukuki Sorumluluk, Kazancı Yayınevi, Ankara 1991, p. 18; Filiz Yavuz İpekyüz, Türk Hukukunda Hekimlik Sözleşmesi, Vedat Kitapçılık, İstanbul 2006, p. 20; Mehmet Demir, Hekimin Sözleşmeden Doğan Sorumluluğu, Ankara Üniversitesi Hukuk Fakültesi Dergisi, V. 57, Iss. 3, Ankara 2008, p. 63.
19 Hasan Petek, Tıbbi Müdahalelerden Kaynaklanan Uyuşmazlıklarda Tüketicinin Korunması Hakkında Kanun’un Uygulanması, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, V. 15, Year 2013, p. 192.
20 G.J. Agich/ M. Siemionow, “Until They have Faces: The Ethics of Facial Allograft Transplantation”, Journal of Medical Ethics, V. 31, Iss. 12, 2005, p. 707.
21 Y.15. HD. 25.01.2011 T. 2010/589 E. 2011/263 K. (https://www.lexpera.com.tr Acc.D.10.05.2022).
22 Y.3.HD. 26.11.2015 T. 2015/11701 E. 2015/19001 K. (https://www.lexpera.com.tr Acc.D.12.05.2022).
23 Y.15. HD. 25.10.2010 T. 2010/4538 E. 2010/5692 K. (https://www.lexpera.com.tr Acc.D.12.05.2022).
24 Y. 13. HD. 21.05.2012 T. 2011/11359 E. 2012/12808 K. (https://www.lexpera.com.tr Acc.D.12.05.2022).
25 Y. 3. HD. 26.04.2016 T. 2015/10634 E, 2016/6585 K (https://www.lexpera.com.tr Acc.D.16.05.2022).
26 M. Özay, Estetik Amaçlı Tıbbi Müdahalelerde Hekimin Hukuki Sorumluluğu. Seçkin, Ankara 2006, p. 47–48; Hasan Tahsin Gökcan, Tıbbi Müdahaleden Doğan Hukuki ve Cezai Sorumluluk, 3rd Edition, Ankara 2017, p. 475–476.
27 Ayan, p. 55–56; Petek, 2006, p. 189; Özay, 2006, p. 43.
28 Aşçıoğlu, p. 16–20.
29 E. Sarıal, Sağlararası Organ Nakillerinden Doğan Hukuksal İlişkiler, Kazancı, İstanbul 1986, p. 43.
30 Yavuz İpekyüz, p. 61, 64.
31 Yakup Gökhan Doğramacı/ Zehra Zerrin Erkol, “Hasta “Yakını” Kimdir?”in: IV. Uluslararası Sağlık Hukuku Kongresi ed. İ. Hamit Hancı/ Yener Ünver, Ankara 2018, p. 291.
32 Aşçıoğlu, p. 20; Doğan, Hastanın Yükümlülükleri, p. 58
33 Tandoğan, p. 21; Zarife Şenocak, Özel Hukukta Hekimin Sorumluluğu, Ankara 1998, p. 34.
34 Yakup Gökhan Doğramacı, Türk Hukukunda Tıbbi Uygulamadan Kaynaklanan Manevi Tazminat, Doktora Tezi, İzmir 2021, p. 55.
