Are you or someone close to you got injured as a result of a medical procedure? Is the doctor who took care of it wrong? Can you engage his responsibility?
Definition: medical malpractice
The medical liability regime has long been based on jurisprudential principles. The Mercier judgment rendered by the Court of Cassation on May 20, 1936 (Cass civ 20 May 1936, DP 1936, 1, p.88) had recognized the contractual nature of the doctor’s responsibility, based on the demonstration of a fault on his part, of a causal link and of a prejudice suffered by the patient. This decision stated that the obligation of care resulting from the medical contract to be paid by the doctor was an obligation of means.
It was thus recognized that the physician could not commit himself to the cure of his patient but only to give him attentive care, in a conscientious manner and in accordance with the acquired data of the science. Following the increase in litigation and the proliferation of decisions of case law devoting cases of responsibilities by right, without fault, the legislator intervened to frame this regime. Now there are laws that regulate the matter, establishing a principle of legal medical liability.
Note: the fault is the event giving rise to liability. It is a question of any act which led to the damage, emanating from the caregiver.
Except in the case where a defective health product can be implicated, the doctor’s responsibility can only be engaged in the demonstration of a fault. This means that his engagement is an obligation of means, which had already been recognized by the Mercier judgment.
Example: here is the difference between the obligation of means and obligation of result. In the first case, the doctor agrees to do everything possible to treat his patient. In the second case, he would commit himself to heal his patient.
Medical professional insurance
Typology of medical faults
The responsibility of the doctor or the private health facility may be engaged for any fault committed. There are usually two types of mistakes, the doctor being bound by an obligation of science and conscience.
The technical fault
It is about the error made by the doctor by ignorance of the uses and scientific rules that make his profession. It can be a question of a fault: diagnosis; in carrying out the act; in the choice of treatment; medical monitoring.
The fault against humanism
It corresponds to the poor appreciation of the caregiver-patient relationship, in accordance with the ethical rules of the profession.
This is the violation of the obligation to obtain the free and informed consent of the patient. Before any medical intervention, the doctor must obtain the agreement of the patient. This supposes that the latter was enlightened on his health conditions, on the proposed medical procedure, on the therapeutic hazard and the generally accepted and observed consequences for the type of intervention planned.
Good to know: the doctor, therefore, has a duty of fair and clear information. It is also a violation of medical confidentiality: in addition to the oath of Hippocrates, respect for the privacy of the patient and his right to secrecy is recalled by the Law. Except in the case of legally accepted exceptions, the secret covers all the information concerning the person coming to the knowledge of the doctor, of any member of the staff of these establishments, services or organizations and of any other person in relation, by his or her activities, with these institutions or organizations.
Medical malpractice: redress and compensation
Anyone who is a damaged or who considers himself or herself to be a damaged of damage attributable to medical malpractice must be informed by the professional, the health establishment, the health services or the body concerned about the circumstances and causes of this damage in the case. In terms of procedure, the fault of the physician or health care institution must be reported as well as the harm and the causal link between the two. There is a multiplicity of possible harms: moral, bodily, etc.
There is a first friendly phase in which the damaged lodges an appeal. The court draws up an expert opinion and gives an opinion on the cause and the circumstances of the damage.
When it is found that a fault involves the responsibility of a health professional, a health establishment, a health service, the insurer who guarantees the civil or administrative responsibility of the person considered responsible by the court shall address to the damaged or his successors an offer of compensation for the full compensation of the damage suffered within the limits of the insurance contract guarantee.