Introduction

The ruling of the Constitutional Court (AYM) bearing application number 2021/56334 and dated 25 June 2025, published in the Official Gazette No. 33184 of 2 March 2026 ('the Ruling'), sets out important findings concerning the extent of informed consent in cases involving allegations of death following medical intervention and the manner in which challenges to expert reports are evaluated. The Ruling is of significant precedential value in the field of health law and in the conduct of individual applications.

In the matter at hand, a full-judgment action seeking compensation for non-pecuniary loss was instituted by the deceased's heirs following the patient's death from liver failure arising from a complication occurring during gallbladder surgery. The Administrative Court rejected the claim, placing reliance on a report prepared by the Expert Committee of the Forensic Medicine Institution; the appeal was likewise conclusively dismissed.

The Constitutional Court did not identify any constitutional-level systemic deficiencies or manifest negligence in the delivery of healthcare services in the particular case. It concluded, however, that the lower court had failed to address the applicant's principal claims with adequate clarity and in a comparative fashion, particularly with regard to the extent of informed consent and the evaluation of expert reports. The Court accordingly ruled that the substantive limb of the right to life had not been infringed, whilst finding that procedural guarantees had been violated, and directed that the matter be remitted to the relevant court for a fresh hearing.

This ruling demonstrates that, in claims arising from death resulting from medical intervention, the question of whether negligence occurred is, in itself, insufficient; courts are under an obligation to address the fundamental contentions advanced by the parties with clear and verifiable reasoning. The Ruling has the potential to produce significant practical consequences in two distinct areas: reinforcing the substantive examination of informed consent and precluding expert reports from serving automatically as the grounds for a judicial determination.

This article will first set out the factual background of the matter and the criminal investigation process. It will proceed to examine the full-judgment proceedings before the Administrative Court; the ambit of the right to life; and the Constitutional Court's analysis of the individual application within the framework of the state's positive obligations under Article 17. Finally, the significance of the Ruling for health law practice will be considered.

Background of the Case and the Criminal Investigation Process

The applicant's mother, M.E., underwent cholecystectomy at Van Regional Training and Research Hospital on 27 February 2018. An intraoperative injury occurred; whilst receiving post-operative treatment, she died on 18 March 2018 as a consequence of liver failure.

The applicant lodged a criminal complaint with the Van Chief Public Prosecutor's Office, contending that the operating surgeon had caused an injury to the portal vein in the course of the procedure, which ultimately led to his mother's death. In the course of the investigation, medical records pertaining to the pre- and post-operative periods, together with various consent forms executed by the patient and her relatives, were admitted to the case file. The file contains an informed consent form relating to the intensive care unit, a consent form for restraint measures, an anaesthesia consent form signed by the applicant, and consent forms concerning the patient's transfer.

The surgical consent form indicates that the procedure may be performed using either an open or laparoscopic (closed, minimally invasive) technique; that there is a risk of injury to the liver and surrounding organs during the operation; that additional interventions may be required if necessary; and that the laparoscopic technique may be converted to open surgery. The applicant maintained, however, that specific and potentially fatal risks, such as portal vein injury, were not expressly stated in the form; that they had not been informed that the surgery would commence using the laparoscopic technique; and that, as a result, the duty to disclose had not been duly discharged.

During the course of the investigation, an application was made for an investigation permit in respect of the doctor concerned; the application was, however, refused. The applicant's challenge against this refusal was conclusively dismissed by the First Administrative Court of the Erzurum Regional Administrative Court. As a consequence, the Public Prosecutor's Office determined that there were no grounds for investigation by reason of the refusal of the investigation permit, and the criminal investigation was brought to a close at the permit stage.

The Scope of the Right to Life and the State's Positive Obligations

In order to properly contextualise the Constitutional Court's analysis of the particular case, it is necessary to briefly consider the ambit of the right to life and the State's positive obligations in relation thereto. The Constitutional Court examined the individual application not merely by reference to the technical aspects of the medical procedure, but by focusing on the extent to which, and the manner in which, the allegations concerning that procedure were subject to effective judicial scrutiny.

The right to life, enshrined in Article 17 of the Constitution, when read in conjunction with Article 5 — which governs the state's fundamental aims and duties — imposes upon the state not only negative obligations but also certain positive obligations to safeguard the lives of persons within its jurisdiction[i]. Article 56 of the Constitution, for its part, stipulates that every person has the right to live in a healthy and balanced environment; it requires the state to plan and deliver healthcare services and to fulfil this obligation by overseeing such services across both the public and private sectors[ii].

Within this framework, the state is required to regulate health services in such a manner as to ensure that the measures necessary to protect patients' lives may be implemented, irrespective of whether those services are delivered by public or private healthcare institutions. Such regulation also encompasses the demanding professional standards that healthcare practitioners are obliged to meet[iii].

In the context of positive obligations under the right to life, the state is likewise required to establish an effective judicial system to ensure that the legal and administrative framework put in place to protect the right to life is properly enforced and that infringements of this right are brought to an end and sanctioned. In cases of death allegedly arising from medical negligence, this obligation may be regarded as having been satisfied by ensuring that legal, administrative, and even disciplinary avenues of redress remain accessible to those affected.

Conversely, in cases where a death results from a systemic or structural failure within the healthcare system that is known to the authorities, or that they ought to have been aware of, the failure to prefer charges against those responsible or to bring them to trial may itself amount to an infringement of the right to life.

In compensation claims pursued under the right to life, the requirements of reasonable diligence and expedition must be satisfied[iv]. Absent credible and reasonable grounds for delay, the duration of proceedings will give rise to a breach of the positive obligations under the right to life. The assessment of the technical content of expert reports and the evaluation of the facts of the case, however, remain within the exclusive purview of the courts of first instance. The Constitutional Court may intervene in such evaluations only where there is a manifest error of assessment or evident arbitrariness[v].

The Constitutional Court's Assessment of the Individual Application

The Constitutional Court examined the application within the ambit of the right to life; it founded its analysis not merely on whether death had occurred, but on whether the allegations pertaining to that death had been effectively and adequately investigated by the courts below. Recalling that the State bears positive obligations to protect individuals' lives in accordance with the relevant constitutional provisions, the Court conducted a separate analysis of both the substantive and procedural dimensions of the right to life.

The Substantive Dimension of the Right to Life

The Constitutional Court has held that, in cases involving allegations of medical negligence, the State's positive obligation in relation to the substantive limb of the right to life consists of enacting effective legislation to ensure that both public and private hospitals adopt the necessary measures to protect patients' lives. Provided that the legislation enacted is not deficient with respect to the protection of individuals' lives, errors of clinical judgement on the part of healthcare professionals in the course of treatment, delays in the treatment process, or a lack of coordination are not, on their own, sufficient to render the state liable for a breach of the substantive limb of the right to life.

In the particular case, the Constitutional Court found that there was no allegation that the applicant's relative had died as a result of being denied access to emergency healthcare services, nor any complaint that the necessary measures had not been taken owing to systemic or structural failures known to, or which ought to have been known to, the healthcare staff. The applicant's complaints of violation were, in essence, confined to medical negligence. The Constitutional Court accordingly concluded that the legal framework in force at the time of the incident did not contain any deficiency with regard to the protection of the applicant's relative's life, and ruled that the substantive limb of the right to life had not been infringed.

The Procedural Dimension of the Right to Life: Informed Consent and the Expert Report

The primary breach identified by the Constitutional Court lies in the procedural limb of the right to life. The Court concluded that the court below had failed to examine the applicant's principal contentions with the requisite diligence, thereby finding that the procedural guarantees inherent in the right to life had been infringed.

The Expert Committee's report concluded that M.E.'s injury constituted a complication arising during the operation and that death occurred as a result of liver failure and associated complications developing after the procedure. The court below likewise dismissed the claim on the basis of that report. The Constitutional Court accepted that the applicant's allegations of medical negligence had been discussed and addressed on the basis of concrete findings and determinations.

The Constitutional Court observed, however, that the applicant had argued in the application that the duty to disclose had not been discharged because they had not been informed that the surgery would be performed using a closed technique, and that they had subsequently asserted on appeal that they had not been adequately informed throughout the process, seeking the commissioning of a fresh report from the High Health Council of the Forensic Medicine Institution. The Court of First Instance, for its part, was found not to have conducted any assessment as to: whether the informed consent form required in connection with M.E.'s surgical procedure had been obtained; if so, the scope and content of that form; or whether the form encompassed the risks that could materialise during the operation and prove fatal to the patient.

According to the Constitutional Court, in light of the applicant's contentions, an assessment of the aforementioned matters ought to have been carried out, with expert input being sought if necessary. It could not, therefore, be said that the Court had conducted its examination with the degree of diligence required by Article 17 of the Constitution. On this basis, the Constitutional Court ruled that the procedural limb of the right to life had been infringed.

The matter was remitted to the Administrative Court for a fresh hearing in order to remedy the consequences of the breach. The applicant's claim for non-pecuniary damages was dismissed on the ground that the fresh hearing would furnish adequate redress.

Consequences of the Decision in Terms of Health Law Practice

This ruling has the potential to produce significant consequences in two key areas of health law practice. The first of these concerns the reinforcement of the substantive examination of informed consent. Informed consent constitutes one of the fundamental prerequisites for the lawfulness of a medical intervention and requires that the patient be duly informed of the risks, alternatives, and consequences of that intervention. In the ruling under review by the Constitutional Court, the mere physical presence of the consent form in the case file was not considered sufficient, of itself, to establish that the duty to disclose had been discharged. Whether the form addressed the risks specific to the intervention and whether the claimant's allegations in this regard had been considered by the court were identified as matters warranting further assessment. The doctor's duty to inform the patient is regarded as a precondition enabling the patient to exercise autonomous decision-making regarding their own health; it is therefore considered erroneous to treat consent as no more than the signing of a form. The ruling affirms that both the content of the information provided and whether the specific risks were communicated must be subject to judicial scrutiny.

The second key aspect is that the uncritical substitution of expert reports for the court's independent reasoning is not regarded as sufficient. Whilst expert evidence is an indispensable instrument for establishing the conformity of a medical intervention with the applicable professional standards, it cannot, of itself, constitute the basis for a judicial determination. In the particular case, the Constitutional Court identified as a deficiency in judicial review both the court's failure to scrutinise the aspects of the expert report that did not engage with the parties' objections, and the direct adoption of the report as the grounds for the judgment. When accepting expert opinion, courts of first instance must construct a reasoned justification that engages with the parties' objections, resolves any inconsistencies, and establishes the nexus between the medical assessment and the determination of legal liability.

Assessment and Conclusion

The Constitutional Court's ruling under review clearly establishes that characterising an outcome arising from a medical intervention as a 'complication' is not, of itself, sufficient to curtail the ambit of judicial scrutiny. Whilst the Court leaves the technical evaluation of medical practice to the discretion of the courts below and the appointed experts, it has underscored that such evaluation must rest upon a reasoned, verifiable, and comprehensive justification that engages with the parties' substantive contentions.

In the particular case, the Forensic Medicine Institution's report concluded that death had occurred as a result of a complication and that no medical error was identified in the management of that complication. The failure of the report to expressly engage with the applicants' contentions concerning the extent of informed consent, however, together with the court below's failure to furnish a reasoned evaluation of the request for a fresh report, led to the conclusion that the judicial examination had been inadequate.

Accordingly, the Constitutional Court determined that the classification of the medical intervention as a complication did not preclude a separate examination of the contentions concerning the duty to disclose, and that the process had failed to meet the 'due diligence' standard required by Article 17 of the Constitution; it treated the dismissal decision, resting on an insufficient expert report, as a procedural deficiency necessitating a fresh hearing.

This Ruling demonstrates that in health law, not only medical practice but also the quality of judicial reasoning is amenable to constitutional scrutiny. Whilst the distinction between complication and negligence is preserved, the manner in which that distinction is substantiated remains itself subject to review. It has been reaffirmed that judicial authorities must approach expert reports not merely as technical documents, but as verifiable evidence that must be evaluated within the framework of the guarantees inherent in the right to life.

[i] Constitutional Court, Nafia Sevin Ergün Sefada and Others (GK), Case No. 2014/14844, 1 December 2016, §§ 57-58.

[ii] Constitutional Court, Nail Artuç (1st Chamber), Case No. 2013/2839, 3 April 2014, §§ 34-35.

[iii] Constitutional Court, Ayhan Keçeli and others (2nd Chamber), Case No. 2019/24231, 23 February 2022, § 81.

[iv] Constitutional Court, Perihan Uçar and Others (2nd Chamber), Case No. 2013/5860, 1 December 2015, § 52;

[v] Constitutional Court, Bağı Akay and others (1st Chamber), Case No. 2014/5101, 22 June 2017, § 56.