In general terms, full judgement lawsuits are compensation lawsuits filed. Against the administration by those whose rights are damaged due to the activities of the administration. In such cases, the court will determine both. The material aspect of the incident, i.e. the transactions or actions that caused the damage, and the legal consequences that may arise from this. As a rule, the administration is obliged to compensate the damages. That can be causally linked to the public service it carries out; and the damages arising from administrative actions and/or transactions. Are compensated within the framework. Of administrative law rules, in accordance. With the principles of service defect or perfect liability.
In full remedy cases, since it is primarily based on the control. Of the legality of the administrative act or action alleged. To have caused the damage. The occurrence of the incident and the nature of the damage. Should be examined, whether the administration has a service. Defect should be investigated, if there is no service defect. Whether the principles of strict liability should be applied, and in any case. The reason for liability should be clearly stated. When awarding compensation. A service defect, which can be defined as an objective defect. Failure or gap in the establishment, organisation or functioning of a service.
That the administration is responsible for carrying out, occurs in cases. Where the service functions poorly, late or not at all, and leads. To the emergence of the administration’s obligation to compensate. In this context, a defect in service is a defect that has become objective, anonymous and has an independent character, moving away from its meaning in private law. Liability for defects in service constitutes the direct and primary cause of the administration’s liability.
In the health service, where the injured person is the beneficiary. Of the service and the service is of a risky nature, in order for the administration. To be liable for compensation; the damage must have occurred. As a result of the administration’s service defect.
In the case, it is undisputed that three metal objects in the form of broken syringe tips were removed from the body of the patient who was operated on by the personnel of the defendant administration, and that the patient did not undergo another operation before and after a certain period of time. It is a concrete fact that these facts are not denied in the Forensic Medicine report and that there is no other reason and possibility to explain the presence. Of three metal objects removed from the body of a patient three months after the operation and that these three objects were forgotten.
In the operation area during the operation of the patient. Although it cannot be explained surgically and scientifically. How these objects entered the patient’s operation area. Considering that the defendant administration. Is responsible for the operation team and the smooth execution of the operation. It is concluded that the defendant administration. Did not fulfil its obligation of care and diligence in this regard and therefore. The service was mismanaged by the defendant administration. For this reason, due to the defendant administration’s service defect in the incident. The Court should make a decision by evaluating. The plaintiffs’ request for material and moral compensation. But there is no legal accuracy in the court decision to reject. The case on the grounds. That there is no service defect. (15th Chamber of the Council of State – Decision: 2016/4029).
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