Özet:

In accordance with the relevant provisions of the Law No. 5510 and the Communiqué on Healthcare Practices , during the application process of the individuals by the health service providers, in case of emergency, after the end of the emergency; identity card, driver’s license, marriage certificate, passport or, if given, one of the Institution’s health card documents, and identity verification by biometric methods is mandatory. Health service providers who violate the identification obligation have been sanctioned under both administrative legislation and private law contracts of the administration. In practice, the contents of fake prescriptions issued on behalf of the insured can be obtained from pharmacies without the insured’s knowledge. The main reason for this process is the security vulnerability of the Medula system. In addition, the failure of the identity detection/control of the person who is the perpetrator and/or participant of the fraud in the health service providers in accordance with the procedure also leads to the loss of the Institution. While the Social Security Institution collects the cost of fake prescriptions under the name of “undue payment” within the scope of the Drug Supply Agreement it has concluded with pharmacies, it applies the penal clause arising from the contract. SGK justifies the reason for the penal clause applied as the pharmacist’s violation of the identification/control obligation. The Social Security Institution bases the article 5.3.2 on the type contract for the violation of the identification obligation. In the doctrine and in some Supreme Court decisions, this situation is considered as “signature control obligation” rather than “identification obligation”. The penal clause in question; It is of such a nature as to cause the destruction of the pharmacy business and even the termination of the contract. Due to this difference in interpretation arising from the wording of the article, it is a matter of debate whether the general transaction conditions control can be applied in the type contract concluded between the parties. It is also controversial that the violation of the identity detection/control obligation, which is sanctioned by the provisions of the general legislation, is also subject to the contractual penalty condition based on interpretation. Whether the violation of the aforementioned obligation will lead to a substantive result, the form of the prescription, the concept and scope of the patient’s relative, the contradiction of the concepts of identification and identity control, and its applicability in pharmacies are among the most fundamental problems.

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