I. Introduction
In medical malpractice claims in Turkey, whether the treatment was negligent is a medical question, and courts answer it largely through expert reports, such as those of the Forensic Medicine Institute (Adli Tıp Kurumu, “ATK”). An expert report, however, can only be as sound as the facts it assumes. When witness statements or other records describe the patient’s condition differently from the medical records the experts relied on, whether the court investigates that conflict can decide the case.
In its decision of 12 March 2026 in application no. 2021/10952, published in the Official Gazette of 21 September 2026, the Constitutional Court reviewed a damages action brought after one of a mother’s twins was stillborn and the other needed prolonged treatment. The administrative courts had relied on ATK reports to reject the claim for pecuniary damages, and the regional administrative court had also set aside the non-pecuniary damages awarded at first instance. The Constitutional Court accepted that weighing evidence is for the trial courts and that it does not review the scientific correctness of expert findings. It nevertheless held unanimously that the courts’ failure to investigate evidence contradicting the reports’ factual basis violated the applicants’ right to protection of their physical and moral integrity under Article 17 of the Constitution.
II. Expert Evidence in Medical Malpractice Claims
Claims arising from treatment in a public hospital are brought against the administration as full remedy actions before the administrative courts. Administrative Procedure Law No. 2577 requires the administrative court to investigate the case of its own motion and applies the expert-evidence rules of the Code of Civil Procedure. In malpractice cases the expert examination is often entrusted to the ATK, which prepares its report on the hospital records and medical documents placed in the file.
An expert report does not bind the judge, who must assess it together with the other evidence. It is therefore for the court to check whether the records the report relies on are consistent with the rest of the file. The parties, for their part, may object within two weeks of service of the report and ask for omissions to be completed, uncertain points to be clarified or a new expert to be appointed.
III. The Dispute
The mother, thirty weeks pregnant with twins, arrived at the obstetric emergency unit of Sivas Numune Hospital at about 17:50 on 24 November 2015 with labour pains and back pain. According to a police report based on camera footage, she waited in the corridor without being examined until 19:26. After a midwife’s examination showed that one of the babies was in breech position, she left the hospital by ambulance at about 20:11 for Sivas Cumhuriyet University Hospital, where she delivered by caesarean section. One baby was stillborn with the umbilical cord wrapped around its neck. The other survived but, because of the premature birth, needed oxygen support for a time and was monitored for a long period for eye and kidney problems. The parents brought a full remedy action against the Ministry of Health before the Sivas Administrative Court. Separately, a preliminary inquiry was conducted into the doctor at the first hospital, and criminal proceedings were brought against the staff involved.
The evidence on the mother’s condition at the first hospital conflicted:
• The doctor who performed the delivery said that the referring doctor had described, by telephone, a patient in advanced labour with about 5 cm of cervical dilation, and that the delivering doctor had advised that the delivery should take place at the first hospital.
• The midwife and the nurse who accompanied the mother in the ambulance testified under oath in the criminal proceedings to 7–8 cm of dilation; the midwife also said that the examination had shown a limb presentation.
• The parents submitted to the administrative court a CD of the conversations between the two doctors, stating that the administration held the recordings, and asked for them to be added to the file.
• The preliminary inquiry report found that intervention had been delayed and that a mother found to have a breech presentation should have been taken promptly into caesarean section, with the newborns transferred in an incubator if necessary.
The ATK report obtained by the administrative court, by contrast, relied on a record of 2 cm dilation at the receiving hospital to conclude that the mother had not been in active labour before the transfer and that the transfer, needed because the newborns would require intensive care, was medically appropriate. An ATK report in the criminal case attributed the death to the umbilical cord and found that the transfer had not affected it.
On the basis of these reports, the Sivas Administrative Court rejected the pecuniary claim. Noting that the mother was in a high-risk pregnancy group and had been kept waiting for more than two hours, it awarded TRY 15,000 to the mother and TRY 10,000 to the father in non-pecuniary damages. The 10th Chamber of the Ankara Regional Administrative Court upheld the rejection of the pecuniary claim and, allowing the administration’s appeal, dismissed the non-pecuniary claim with final effect on the ground that its conditions were not met.
IV. The Constitutional Court’s Assessment
The Court declared two complaints inadmissible. The length-of-proceedings complaint failed because the applicants had not first applied to the Compensation Commission. The complaint that the regional court’s decision could not be appealed failed for lack of jurisdiction ratione materiae, because the right to appeal in civil matters falls outside the common protection of the Constitution and the European Convention on Human Rights. The Court examined the stillbirth under Article 17, treating the unborn child as part of the parents’ physical and moral integrity.
The Court recalled that the State’s positive obligations in healthcare apply whether treatment is provided by a public or a private institution, and that they include examining compensation claims for medical harm with reasonable diligence and care. It confined its review to whether the courts’ reasons were relevant and sufficient.
On that basis the Court found that the courts had not taken steps to obtain the recordings of the doctors’ conversations, had not established the degree of dilation and whether labour had begun at the first hospital by taking statements from the midwife and the nurse, and had not assessed the witness statements in the criminal file. The ATK record of 2 cm dilation did not match the statements of the delivering doctor, the midwife and the nurse, or the recordings, yet the courts had relied on reports that left the applicants’ objections unanswered. That conflict, the Court said, should have been resolved during the proceedings. The allegations that the transfer went ahead despite the receiving doctor’s warning also called for full examination.
As for the regional court, the Court found that it had dismissed the non-pecuniary claim without concrete reasons and without considering the effect on the parents of the stillbirth and of the surviving child’s treatment. It concluded that the courts had not examined the allegations with the care Article 17 requires or given relevant and sufficient reasons, and that the public authorities had therefore failed to meet their positive obligations. It ordered a retrial, sending the decision through the Sivas Administrative Court to the 10th Chamber of the Ankara Regional Administrative Court, and rejected the claim for compensation, considering the retrial sufficient redress.
V. General Assessment
The decision requires courts relying on expert evidence to investigate material conflicts between the facts the report assumes and the rest of the file, and to answer the parties’ objections with reasons. It does not mean that witness statements must prevail over ATK reports or that the medical staff were at fault; that assessment remains for the courts conducting the retrial.
In practice, an objection to an expert report is most effective when it identifies the factual assumption the report relies on, the document or statement that contradicts it, and the question the report leaves unanswered. Claimants should also ask the court to obtain the hospital records, camera footage, recordings of communications between doctors and the statements taken in any criminal investigation. For hospitals, the administration and their insurers, a favourable expert report will not settle the case on its own if it rests on facts that the rest of the file contradicts.
