Our patients often ask us about the responsibility of health professionals and health institutions in France. Some people even ask to sign a contract with a clinic. However, medical responsibility in France is a verbal commitment which is proved by a simple payment receipt. The responsibility of all medical staff and medical facilities is set in the French law.
In XIX century, the doctors’ medical responsibility in France already provided for compensation of damage. It was based on the provisions of Articles 1382 and 1383 of the Civil Code and demanded proof of fault, damage and relation of guilt to the damage and guilt itself.
Only in 1936 in the Mercier decision the Court of Cassation introduced the principle according to which “a contract is drawn up between the doctor and his/her client, containing the practitioner’s obligation if not to completely cure the patient, then at least give him/her an attentive and conscientious care, which, taking into account the exceptional circumstances, would correspond to modern scientific achievements, and that violation, even unintentional, of this contractual obligation entails the responsibility of the same nature as violation of the contract as a whole.”
It is the administrative law that gave impetus to the expansion of medical liability, which was mentioned in the decision of Bianchi and was adopted by the State Council on April 9, 1993:
“Even if no mistake is found … in case a medical action in terms of diagnostics or treatment of a patient presents a risk, the existence of which is known, but implementation of which is an exceptional measure and that no reasons allow supposing that the patient is particularly is at the risk, the public health service liability is incurred, if this action is the direct cause of the damage not related to the predictable consequences in this state, and having an extremely serious nature.”
One characteristic of our modern civilization is a collective concern for the individual damage, which is often considered legally liable.
We see, therefore, a significant increase in health insurance claims that fall on the shoulders of insurers of medical workers.
The number of insurance cases has increased dramatically since 1996, as well as their average cost, which made many insurers in 1997 abandon their financial obligations.
General, obstetric and visceral surgery currently presents the greatest risk zone, which applies to all other specialties, including anesthesiology and critical care medicine, psychiatry, pediatrics or cardiology.
With regard to the contract for provision of health care, article 1147 of the Civil Code defines a contractual obligation of a doctor to pay for damages “whenever he/she cannot justify that failure to act occurs for any reason, which cannot be imputed to him/her”.
The responsibility of doctors and medical institutions has increased considerably, leading to a change in the content of the classic doctor’s duties in terms of the means used with respect to the doctor’s responsibility to ensure the result.
- This requirement of a safe result applies to all workers and health care institutions such as hospitals and clinics.
- At the same time, the jurisprudence imposes on medical practitioners an information obligation, which enhances the patient’s right to compensation even in the case of a clerical error.
- Enhancement of medical confidentiality, including in relation to insurers, makes it increasingly difficult to assess conditions of the guarantee for insurance.
- Health care workers are not protected from prosecution for unintentional injury or homicide in case of an error or negligence.
Finally, our civilization and victims of medical accidents no longer consider therapeutic accidents as inevitable:
- they need lawful compensation, especially when economic conditions significantly affect the level of their lives, including in the absence of social security.
- others also want their case to serve as an example and that it will not happen again.
- and, finally, some people are inclined to the “jackpot” procedure, which will eventually allow them to get a little gold mine in case of success.
Why punish them instead of the medical corps in the absence of error, laying on him/her compensation for the severe physical disability as a result of the action on provision of health services?
The only fair solution was to analyze the compensation burden of medical accidents in general, including through a special Guarantee Fund for Medical Victims, laying the doctors’ medical responsibility in France due to their proven guilt.
Thus, the Law of March 4, 2002:
- fixed the principle that health care workers liability arises only in case of their misconduct.
- organized paying of damages as a result of medical accidents in coordination with the Association of Assistance to Victims of Accidents:
◦ in the case of an error on the part of insurers of health workers,
◦ in the case of therapeutic risk, through the National Office of Compensation for Victims of Medical Accidents.
I – HEALTH WORKERS LIABILITY
A –OBLIGATION TO PROVIDE CONSCIENTIOUS AND ATTENTIVE MEDICAL AID ACCORDING TO THE MODERN SCIENTIFIC ACHIEVEMENTS
Section II of the Code of Medical Ethics entitled “Obligations in relation to patients” contains the following provisions:
- Article 32: As soon as the doctor agrees to answer a call for help, he/she undertakes to personally provide the patient with fair, appropriate medical care based on scientific data, using, if necessary, the assistance of other competent health professionals.
- Article 33: The physician shall always make diagnoses with the greatest care, devoting all the necessary time and relying as far as possible on the adapted scientific methods and practices.
- Article 34: The physician shall formulate his prescriptions with the necessary clarity and ensure that the patient and his/her relatives understand them, and strive to ensure that the patient complies with the prescriptions.
Therefore, the obligation imposed on the physician is to provide the patient with fair, appropriate medical care relevant to the latest scientific advances.
The physician is not required to guarantee healing of his/her patient, or the absence of prospects for deterioration of his/her condition, and therefore he/she should not be responsible for the risk of an accident or therapeutic dangers inherent in the patient’s condition.
However, financial reasons do not permit a doctor to provide medical assistance, which does not conform to scientific data.
For the surgeon-dentist who is to remove contraindicated three teeth while he was supposed to deliver a fixed prosthesis:
medical responsibility requires the proof of characteristic guilt of a medical practitioner, which cannot be a result of abnormality of the damage and its severity.
The new Article L 1142-1 of the Code of Public Health confirms that:
- Except when their liability arises due to defects of medical supplies, medical staff, referred to in the fourth part of this Code, as well as any institution or organization in which the individual preventive, diagnostic activities or medical services are provided, shall be responsible for the consequences of damaging actions on prevention, diagnostics or medical care only if an error occurs.
The above-mentioned institutions, services, and organizations shall be responsible for damage caused as a result of hospital-acquired infections, except if they provide evidence of a cause.
1 – ERROR OF A MEDICAL TECHNIQUE
If the type of a contract made between the surgeon and the client places on the practitioner an obligation on the means, the doctor, however, guided by the obligation of safety of the result, shall compensate the damage caused to the patient during the surgical intervention every time this damage, the real cause of which could not be determined, is in direct connection with the surgery and if the previous condition of the patient is not taken into account…
Consequently, the responsibility of general practitioners involves:
- “Careless gesture”and “awkwardness” of the surgeon, which lead to rupture of the trachea.
- The surgeon-dentist, who damages the hypoglossal nerve when removing a wisdom tooth, while the position of this nerve did not represent any anomaly.
- Incision of the popliteal artery in the course of cords plasty while the artery did not represent an anomaly, which makes the incision inevitable.
- Regarding the two surgeons who cut the nerve during resection of the submandibular gland.
Since resection did not cause interfering of a large grazing sublingual and lingual nerves, and it was not proved that the path of the nerves was an anomaly, making them their cutting inevitable, the Court of Appeal may decide that the practitioners made a mistake in the preparation of the contract with the patient.
Surgeon’s medical responsibility in France may not be limited to surgical operations, for he must inform the anesthesiologist about the risks of local anesthesia by making an injection into retro eyeball, given the abnormal structure of the eye (division of responsibility in half).
Unless the severity of the damage is not a sufficient factor to characterize the error of the practitioner, the latter shall provide a clear and accurate information about the risks associated with the planned operation, except in cases of emergency first aid or the patient’s refusal to be informed.
We recall that Article 35, paragraph 4 of the Code of Medical Ethics of Decree No. 79-506 as of June 28, 1979, allows the doctor not to inform the patient of his/her diagnosis, if consequences of such information could cause him/her harm.
However, the surgeon cannot be accused of committing errors in the context of cutting off the median nerve of the left hand during an operation carried out with the use of endoscopy in the carpal canal of the wrist as this cut is a well-known complication of this type of endoscopic surgery, the operation was carried out in accordance with the proven method with precautions recommended for such an operation, medical tactic was reasonable, given the difficulties that he faced, and no mistakes, recklessness, lack of the necessary precautions, negligence or other erroneous operation cannot be imputed to him, given the narrowing of the field of view of the surgeon, which is characteristic of such endoscopy, and his using of long tools, as well as anatomical changes in the patient.
Available violation, the risk of which was inherent in the method used, cannot be imputed to the doctor.
2 –DIAGNOSTIC ERROR
The right to restitution to a CHILD with disabilities: Perruche’s Court Decree
Since mistakes made by a doctor and a laboratory when executing contracts drawn up with a pregnant woman did not allow her to carry out her choice to terminate the pregnancy in order to avoid having a child with disabilities, the latter may claim damages as a result of the disability caused by mistakes.
She therefore recognizes:
- violation of the contractual obligation in respect of parents and places on health care providers an obligation to pay damages pursuant to Article 1165 and 1147 of the Civil Code.
- quasi-intentional error in relation to the child, which occurred as a result of breach of its contractual obligations in relation to its parents on the basis of Article 1382 of the Civil Code.
The Court of Cassation sentences these health workers to compensate the financial consequences of disability, but not because of the child’s birth.
APPLICATION OF THE PERRUCHE’S COURT PRACTICE TO A CHILD WITH DOWN SYNDROME: judgment as of November 28, 2001
Since, on the one hand, the error made by the doctor in the performance of the contract drawn up with the mother prevented her making a choice to terminate her pregnancy for health reasons and, on the other hand, it has not been contested that the medical conditions were created for such a termination, parents may demand compensation for material damage as a result of the disability of the child that is directly related to the mistake.
Since the doctor did not inform the patient about the alarming results of the tests, which required a special consultation with a geneticist and ultrasound specialist, and the doctor did not contest that the medical conditions for the artificial termination of pregnancy for medical reasons had been established, the error was made, which led to the fact that the mother lost the ability to have anamniotic puncture and, therefore, the abortion is directly related to the damage to the child caused as a result of the disability.
Indemnification shall be comprehensive and shall not conform to a simple loss of ability.
3 – SURGEON’S OBLIGATION ON RESULTS SAFETY
The doctor performing the surgery incurs an obligation on safety issues, which also represents a result obligation.
Regarding the surgeon who punctures the uterus without any fault on his part. The risk is thus implicitly entrusted to the doctor…
4 – CAUSE-AND-EFFECT LINK BETWEEN AN ERROR AND DAMAGE
Noting the fact that an overdose of medicines has identified the existing, but latent state, the Court of Appeal quite convincingly characterizes the link between a medical error and kidney disease, the damage from which has been recouped, in this case, in the amount of not more than 30%.
CAUSE-AND-EFFECT LINK BETWEEN THERAPEUTIC RISK AND A CAR ACCIDENT
During the surgery caused by a car accident, the victim loses vision in one eye due to a therapeutic emergency.
A person involved in the car accident was sentenced to compensation, since “the operation that led to disability of the eyes was mandatory because of the car accident … in such a way that the disorder would not have occurred if not for the accident.”
It remains to be considered under law,which recognized the author of the accident responsible for contamination of the victim with AIDS virus during blood transfusions caused by the accident.
B – INFORMATIONAL DUTY OF A DOCTOR
Article 35 of the Code of Medical Ethics states:
- The physician must provide the person whom he examines, treats or to whom he gives advice, with correct and clear information about his/her condition, as well as of surveys and medical care he/she offers. Throughout disease, the doctor in his/her explanation shall take into account the individual characteristics of the patient and ensures that the explanations were clear to him (her).
- However, in the interest of the patient, and the medical practitioner has legitimate reasons for that, the patient may remain in the dark about his/her diagnosis or serious forecasts, except in cases when there is a risk of contamination by third parties.
- Fatal forecast shall be identified with the utmost discretion and caution, but, as a rule, relatives must be warned about this, or if the patient has previously forbidden to tell him/her such a forecast or has authorized any third parties to whom it may be communicated.
The patient is in charge of his/her treatment, and he/she decides, ultimately, what to do in the light of the information provided to him (her) by health professionals.
In addition, the duty of any health professional, no matter what area of medicine he/she represents, is to inform his/her client, who is not an expert in medicine.
Convention on Human Rights and Biomedicine of the Council of Europe as of April 4, 1997 also stipulates that a person to whom medical services must be provided can first obtain “appropriate information about the purpose and nature of the intervention, as well as on its consequences and risks”, ‘so that he/she could give his/her free and informed consent.”
Article 3 of the European Charter of Fundamental Rights as of December 18, 2000, enshrines the principle of free and informed consent of the person who uses health care services.
Therefore, the public opinion considers the patient’s right to receive information regularly, on the one hand, about his/her condition and, on the other hand, about risks to which he/she is subjected due to examinations, interventions or treatment offered, as fair.
- As a consequence, the law used this opportunity to judge that if the responsibility for the medical accident cannot be considered a medical negligence, this accident could have occurred due to non-receipt of preliminary information.
This assessment is not flawless:
- Indeed, the art of medicine has always been based on the trust relationship between the patient and the doctor: dialogue offer, and sometimes “pious” lies to give the patient a beneficial energy are a part of the Aesculapius techniques, in particular in the field of psychiatry.
- Difficulties in the selection of staff, duration of medical training, workload, uncertainty of the status with an increasingly decreased financial income speak for the motivation, which is not a guarantee of seriousness and credibility that allows relying on the profession under the fear to discourage it.
- It could be considered legitimate to let doctors decide what they should report of or keep quiet in the interests of the patient, and not post-factum in court so far from medical practice, especially since the entry into force of the law as of March 4, 2002, on compensation victims of medical accidents no longer need to resort to “legal tricks”.
Nevertheless, the right to information is one of the fundamental rights of the patient, violation of which can be legally punishable.