Uzun Süreli Tıbbi Müdahalelerde Hekimin İzleme ve Gözetim Yükümlülüğü

Annales de la Faculté de Droit d Istanbul, cilt.1, sa.1, ss.1-27, 2026 (Hakemli Dergi)

The right to health is one of the fundamental rights guaranteed under the 1982 Constitution of the Republic of

Turkey. The effective protection of this right depends not only on accurate diagnosis and appropriate treatment but

also on the continuous management of the treatment process. In modern medical practice, treatment is regarded as

a comprehensive process encompassing diagnosis, medical intervention, and post-treatment follow-up. Accordingly,

a physician's obligations are not limited to establishing a diagnosis and administering treatment; they also include,

where necessary, inviting the patient for follow-up examinations, monitoring the course of treatment, and carrying

out timely medical interventions whenever required. In this study, these obligations are collectively referred to as

the physician's “duty of follow-up”.

Under Turkish law, the physician's duty of follow-up is primarily assessed within the legal framework governing the

treatment contract established between the physician and the patient. Since the treatment contract is generally

subject to the provisions governing the contract of mandate under the Turkish Code of Obligations, the physician's

duty of care extends beyond the provision of medical treatment itself and encompasses follow-up activities neces-

sary to ensure that the therapeutic objective is achieved. Accordingly, inviting the patient to follow-up examinations,

evaluating treatment outcomes, and modifying the treatment where medically necessary constitute manifestations

of the physician's contractual duty of care.

In German law, by contrast, the right to health is not expressly recognized as an independent fundamental right under

the Basic Law (Grundgesetz). Nevertheless, it is indirectly protected through the constitutional guarantees of the

right to life, bodily integrity, and human dignity. Furthermore, the provisions of the German Civil Code (Bürgerliches

Gesetzbuch – BGB) governing the physician–patient relationship, together with the case law of the Federal Court

of Justice, establish significant principles concerning the physician's duty of follow-up. Accordingly, German law

provides an important comparative framework for evaluating the Turkish legal approach.

This study aims to examine the physician's duty of follow-up through a comparative analysis of Turkish and German

law. It first analyzes the legal basis, scope, and legal consequences of a breach of the physician's duty of follow-up

under Turkish law, with particular reference to the Turkish Code of Obligations, the principles of medical law, and

relevant judicial decisions. It then examines the constitutional framework, statutory regulation of the physician–

patient contract, and judicial case law under German law in order to identify the similarities and differences between

the two legal systems. Through this comparative analysis, the study seeks to evaluate the legal nature, scope, and

implications of the physician's duty of follow-up within the law of liability and to draw conclusions for Turkish law.