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Otago Law Review |
Last Updated: 20 November 2022
Medical Compensation under French Law
179
Medical Compensation under French Law: Fault, No-fault, and the Point of Liability
Vincent Rivollier*
1 Grounds of compensation
The enforced French law concerning medical accident compensation offers a strong example of a scheme which provides compensation for victims through a number of different measures: the compensation can lie on various legal bases. Indeed, the French “medical accidents” law combines a large panel of compensation bases, although civil and administrative liability remains the main component for the compensation of medical accidents. In principle, this liability is based on fault, but strict liability can also apply. When the tests of civil liability, as traditionally applied in the French system, are not met, a no-fault basis can take over in the compensation process.1
2 Medical accident
“Medical accident” is a broad expression used in a French context that covers every case of personal injury that might occur in the course of a medical procedure. Indeed, the medical procedure has purposes of either prevention, diagnosis or care. For example, injuries can be the result of a clumsy surgeon’s move, a treatment side effect or a hospital- acquired infection (“nosocomial infection”). In such cases, the defendant is either the medical professional, its employer, their insurer or the public institution in charge of medical accident compensation (French ONIAM).2
* Associate Professor, Antoine Favre Law Research Centre, Savoie Mont Blanc University, France.
Medical Accidents, iatrogeneous and nosocomial infections).
This paper will not focus on product liability applied in a medical context, for instance in the case of damage caused by drugs or prosthesis. In the latter case, the action against the producer is regulated by the French product liability law resulting from the European directive of 25 July 1985 concerning liability for defective products.3
3 Present state of the legislation
The present state of medical accidents’ compensation law combines a collection of Acts of the Parliament codified into the Code de la santé publique (Public Health Code). Two main Acts laid the foundations of the present scheme: the Rights of Patients and Quality of Healthcare System Act (4 March 2002)4 and the Medical Civil Liability Act (30 December 2002).5 However, for the current system to be fully understood, it requires an overview of the past scheme. This previous scheme relied both on civil and administrative liability and proved to be insufficient. Its failure led to a reshaping of the law scheme, and the legal answer was not removing liability. On the contrary, the legislator maintained liability, attempting to secure it and make it more accessible. Additionally, a no-fault scheme was designed to fill the gaps.6 It was acknowledged that pure liability could not resolve and compensate every case of personal injury resulting from a medical accident. To improve the efficiency of medical accident compensation, civil liability needed to be endowed with mechanisms that make it accessible for victims or provide them with a compensation when no liability can be found.7This paper will at first introduce the former system that based its rationale only on liability, and also underline its failures (section II). The focus will then shift to present the current system where liability is supplemented by different mechanisms including no-fault compensation (section III). The conclusion will question the purposes of current liability in a medical context (section IV).
II The pure liability and its deficiencies
To further detail the former system, some elements of the French legal system must be set out (part II. A). Next, the courts’ answers to the social demand on a better compensation will be examined. Their response mainly consisted in the extension of medical professionals’ liability (part II. B).
II A Elements of context
4 Courts structure
In France, two distinct types of courts are capable of handling cases concerning the compensation for medical accidents. Beside criminal courts,8 the French court system is divided in two branches. The civil jurisdictions will examine cases where the defendant is an independent practitioner or a private hospital or institution (or their insurer). On the other side, administrative jurisdictions will be competent when the State or one of its bodies are the defendant: should the accident happen in a public hospital or institution, they will handle the case. This structure is an issue wider than choosing the right court. Each court branch has its own highest court, so case-law may greatly differ from one court to another, depending on the jurisdiction. Even where a unique Act of Parliament applies, its interpretation can differ according to the branch and according to the highest court.
5 Former law structure
Before 2002, the Parliament and Government had not set any Act on medical liability or medical accidents (except in very particular cases). Medical accidents were compensated on the grounds of traditional civil or administrative liability rules. Before the civil courts, the Civil Code was – in theory - to be applied. Its provisions regarding civil liability had not been amended since its enactment in 1804, and were disconnected from the 21st century reality and its actual medical accidents. In response, the highest national civil court, the Cour de cassation had developed an imaginative case-law, formally based on the Civil code. As to medical accidents, civil courts held that there was a contract between the patient and the hospital or practitioner, and the so-called contractual liability therefore applied.9 Before administrative courts, neither the Civil code nor the case-law based on it had ever been applied. The highest administrative court, the Conseil d’État, created the compensation regime.
6 Who is liable?
General cases of accidents happening in a French public or private hospital will not hold the practitioner as personally liable; rather the practitioner’s employer will assume the liability. In France, in this context, cases of personal liability are rare. Before administrative courts, the
administration will compensate the consequences of every “breach of service” (faute de service) whereas the practitioner is personally liable in case of personal “breach detachable from the service” (faute personnelle détachable du service).10 Before the civil courts, practitioners will be liable when they exceed the limits of their mission, especially in cases of intentional faults.11 In most of the cases, the public or private employer is therefore the defendant, and when compulsory insurance applies, it falls on the employer. Only the independent practitioner is personally liable.
7 Compensation in a French context
Since 1945, France has developed a comprehensive social and health welfare scheme through Social Security (Sécurité sociale). This broad structure provides a wide protection for direct victims, even if it does not reach the standard of full compensation: most of the pecuniary losses will be covered by this scheme. Not only will the largest part of medical expenses be covered by Social Security scheme; but it will also compensate a large part of income losses. However, losses suffered by indirect victims are not as widely covered by the welfare system, and non-pecuniary losses are not covered. When compensation is based on liability, France has developed a sophisticated and rather generous (compared to other countries) system of compensation for these non- pecuniary losses. Items of compensation are numerous (“temporary functional deficit”, “suffering”, “temporary disfigurement”, “permanent functional deficit”, or “permanent disfigurement”). For example, in case of the direct victim’s death, his or her spouse or companion would receive a sum amounting between EUR 15,000 and EUR 30,000 (NZD 25,000 – NZD 50,000) as non-pecuniary damages (for prejudice d’affection: loss of affection).12
II B The extension
8 Extension of civil and administrative liability
The need for a reform appeared at the beginning of the 2000s.13 During the late 1980s and the 1990s, case-law extended medical liability and litigation risks increased in France. It was an answer to the decrease of general confidence in medical professions: many scandals, in particular the tainted blood scandal, paved the way to public attention placing a careful scrutiny on medical interventions.The tainted blood scandal has been qualified as a “real national electroshock in terms of medical liability as well as health security”.14 It has been proved that during the years 1984 and 1985 not-heated blood had been transfused to haemophiliacs; it was known that heating the blood would have protected patients from hepatitis C and HIV. Doctors in charge of the National Blood Transfusion Centre, senior civil servants, the Prime Minister and Ministers were prosecuted for manslaughter, fraud or failure to assist a person in danger. Some of them were found guilty.15 As a response, a Compensation Fund for Haemophiliac and Transfused Patients (Fonds d’Indemnisation des Transfusés et Hémophiles) was instituted in 1991.16 It was one of the first public interventions destined to compensate a damage resulting from a medical intervention.
Beyond the tainted blood scandal, the general confidence in the medical system decreased and the law regarding practitioners’ liability
was tested. During the 1990s, premiums increased for practitioners, and some specialised physicians could no longer afford the high rising insurance premiums. This crisis was partly caused by the evolution of the medical liability case law. The extension of medical liability coupled with the uncertainty of the potential boundaries for this extension, and the unpredictability of the case law fuelled the need for a reform. In many aspects, the 4 March 2002 Act codified the case law solutions.17 It aimed at stopping the erratic evolution of case law and sought for a unified compensation, that would no longer depend on the public or private character of the hospital. During the two decades prior to 2002, medical liability evolved on many points; four of them will be explored below.
9 Fault test
Before the civil courts, the general test in matters of medical liability is based on fault: any fault could lead to liability and compensation. This test is a traditional pattern of the French legal system to identify and define liability. No clear definition has been settled by legislation or case law. The fault can be considered as intentional – or not. The fault can result from a positive action (to administer a patient with a wrong drug) or an abstention (to abstain from giving a treatment that could improve the patient’s condition).18 A generally acknowledged fact is that practitioners must act in conformity with “acquired scientific knowledge” (“données acquises de la science”).19 To summarise, any action or abstention thereof made against medical science, knowledge or ethics can be considered as a fault. As medical technology evolves and moves forward, the medical actions must follow accordingly.From this standpoint, liability before the administrative courts witnessed a strong evolution during the 1990s, hence allowing better compensation for victims. Until 1992, depending on the kind of action or abstention motivating the action, the victim had to prove that either a simple negligence (faute simple) had been committed in case of poor organization or malfunction of the service, or that the jurisdiction was facing a case involving gross misconduct (faute lourde) in the case of a medical act.20 In the latter case, medical liability was indeed limited to serious negligence or recklessness. Such a limitation had many justifications, among which was the fact that the medical activity was a
difficult one. Therefore, the judge did not consider itself as sufficiently competent to evaluate the medical activity of practitioners and could not substitute its own appreciation for the practitioner’s appreciation of the situation. Practitioners needed to be allowed to act without too harsh a barrier. In 1992, the Conseil d’État reversed its case law and allowed the victims to prove only that a fault had been committed by the hospital or the staff.21 Distinction about the fault’s characteristics itself was no longer to be made, and liability in front of administrative courts could be invoked in the same conditions as before the civil courts.
10 Degree of information required and proof
One particular fault to highlight is the breach of the duty to provide information. It has long been stated that the practitioner must inform the patient about the risks accompanying a treatment, an intervention or any medical act.22 This information shall be fair, clear and appropriate. By knowing so, patients can make their decision – and eventually consent to or refuse the medical procedure – with a full knowledge. Traditionally, practitioners could limit the information delivered to the “normally foreseeable risks”;23 ie risks that occur only exceptionally were not objects of the duty to supply information. In 1998 however, civil courts broadened the scope of information to be delivered; and every severe risk was now becoming subject to the duty of information, even if their frequency remained exceptional.24 Two years later, the Conseil d’État, the French highest administrative court, supported this position and decided in agreement with it.25 Similarly, the burden of proof has evolved: it was customary to lay this burden on patients who had to prove the information had not been delivered in an understandable way. Both civil and administrative courts changed their minds in 1997 and 2000; the burden now lies on the defendants (practitioner, hospital) who must prove that the information was sufficiently delivered.26
11 Strict liability
Beside fault-based liability, the courts created liability grounds based on strict liability. The first case of strict liability in a medical context appeared when practitioners used equipment to perform their duty,
either implantable devices or professional material or tools. Those can cover prostheses, dental apparatus,27 pacemakers or in the case of professional materials – heat mattress and blankets or a dentist seat. This equipment must be defect-free. Should any defect cause an injury, the hospital or practitioner will be liable. While victims should prove the defect and the causality inducing their injuries, they do not have to demonstrate the fault of the practitioner. Unlike product liability, the defendant is the practitioner or hospital and not the material producer.
Nosocomial and hospital acquired infections constitute a more controversial field of strict liability. When patients contract a bacterial infection during their stay at a hospital or within a short period of time after their stay, how can they possibly prove the hospital is at fault for misconducting sterilisation? In 1988 and 1989, administrative courts facing cases brought in that matter established a presumption of fault. However, it turned out to be strict liability: the only way defendants could elude their liability was to prove patients were already infected upon their admission in hospital. Defendants must demonstrate there was no causality since patients were already infected when they were admitted.28
Civil courts showed more reluctance to admit such a strict liability and went through different steps for compensation arising from nosocomial infections. Traditionally, civil courts applied the principle of fault based liability.29 However, the burden of proof would sometimes be lightened and definitive evidence would no longer be necessary – a set of concordant items of evidence would be sufficient.30 In 1998, civil courts acknowledged a presumption of fault in case of nosocomial infections. Defendants were to demonstrate their exemption from liability by proving that no fault had been committed during the sterilisation process31 although such a demonstration would almost be impossible to establish. In 1999, civil courts officially admitted they would apply
the principle of strict liability in cases of nosocomial infections. Since then, patients no longer need to demonstrate fault: when the case of a nosocomial infection is established, the only exemption the defendant can raise is proving the injury has another cause (ie the patient was already infected when he was admitted in hospital).32
12 Non-faulty medical accident
In France, the term “no-fault” is not commonly used, however expressions such as compensation for “medical hazard” (aléa medical) or compensation of “non-faulty medical accident” (accident medical non fautif) are preferred. Indeed, liability mechanisms do not offer compensation if no fault can be demonstrated, when sterilisation process is not involved, and the patient was clearly informed. Yet, a medical procedure can result in causing an injury: risks are inherent in such situations. The status of “uncompensated victim” became – from a societal standpoint – an unbearable situation. During the 1990s, the French administrative courts started to provide stuttering answers to these societal demands. They began to compensate injuries in case of medical hazard or misfortune in specific cases. Two judgments laid the grounds for this scheme: one from an administrative court of appeal in 1990,33 another by the highest administrative court, the Conseil d’État in 1993.34 The cases required three conditions to be met to allow the victim compensation. The first was related to inherent risks incurred by the treatment: those risks shall remain exceptional, and were to occur only rarely.35 The second criterion was that injury should be iatrogenic: the injury should not be connected with the patients’ previous condition or with the foreseeable evolution of their condition. The last criterion rested on the injury suffered: the injury was to be “extremely serious” to allow such compensation. The practice demonstrated that courts would allow such a compensation only if the degree of permanent impairment was over 50 per cent.Despite this step forward by the administrative courts, civil courts refused such compensation in case of medical hazard.36 Despite strong social support for such an evolution, civil judges remained firm on their grounds. Their position can be sustained by solid arguments: insurance coverage was not compulsory at the time, and the existing system of insurances relied on the community of insured practitioners. Integrating pure hazard into the list of liabilities covered would not only be unfair but also rapidly jeopardize the whole system. Before administrative courts, the question of financial compensation was posed with different
arguments since these courts only deal with public hospitals, that are ultimately funded through general taxation or social levies. However, from the patients’ viewpoint, the situation could be seen as unfair: depending on where they were treated, they would receive compensation for medical hazard – or not.
13 Need of legislative input
During the 1990s, the courts partly addressed the social demand for a better compensation in cases of medical accidents, whatever the cause of the accident. The requirements expected from practitioners increased. The appreciation of their behaviour and professional practices became stricter over the time. Ultimately, fault based liability was not a sufficient answer. Both civil and administrative courts agreed to deviate from the fault principle in case of hospital acquired infections. Administrative courts even went further, offering compensation for some accidents resulting from the pure hazard, whereas civil courts refused. Meanwhile, both medical professionals and their insurance companies began to be concerned about the extension of their liability. The uncertain nature of French case law – neither civil nor administrative French courts are bound by any precedent37 – reinforced the feeling that this extension was permanently tested and pushed further.
III 2002 Acts: supplementing liability
The idea that liability itself would not suffice in offering adequate compensation for victims of medical accidents had been expressed by legal scholars since the 1960s. Early answers suggested the setting up of compulsory insurance or public compensation funds, as advocated by Professor André Tunc.38 In 2002 however, although the legislator decided to maintain the liability scheme and implement it as a principle (partIII. A), it needed to be supplemented. Therefore, a panel of solutions was deployed and explored, among which a compulsory insurance to guarantee the solvency of defendants (part III. B). Some cases nonetheless cannot be covered by this reinforced legal scheme: the gaps of liability are then filled through subsidiary public compensation funds (part
III. C). It should be noted that, in general, access to justice is not easy: the costs of hiring a medical expert for assessment are high and legal proceedings are time-consuming – in brief, the path to compensation can be a long and harsh one. This is why the legislator attempted to make it more accessible when supporting out-of-court settlements (part III. D).
III A Maintaining the liability scheme
14 Fault-based liability
The 2002 Acts mainly confirmed liability grounds and codified the related case-law. The Public Health Code resulting from 4 March 2002 Act states that:39
Except where they are liable due to a defect in a health product, the health professionals mentioned in Part IV of this Code, as well as any establishment, service or organisations in which individual acts of prevention, diagnosis or care are carried out, shall be liable for the harmful consequences of acts of prevention, diagnosis or care only in the event of fault.
The principle of fault is here confirmed, but as usual and standard in French law, the idea and concepts lying behind the fault are not defined. This ground of liability has not been called into question. As fault based liability applies in a large range of cases, this should also encompass cases involving medical accidents. Case law relating to the duty to supply information was codified. Therefore, the Public Health Code states:40
Everyone has the right to be informed about his or her state of health. This information shall cover the various investigations, treatments or preventive actions proposed, their usefulness, their possible emergency, their consequences, the frequent or serious risks normally foreseeable that they carry, as well as the other possible solutions and the foreseeable consequences in the event of refusal ...
In the event of a dispute, the health professional or establishment shall prove that the information has been provided to the person concerned under the terms laid down in this Article. Such proof may be established by any means.
15 Nosocomial infections
The case law dealing with nosocomial infections has been partly codified by the 4 March 2002 Act. In case of hospital-acquired infections, the grounds of liability are strict for hospitals. Since independent practitioners are not mentioned in the special provisions providing strict liability, their liability is only fault-based. The Public Health Code states:41
The above-mentioned establishments, services and organisations are liable for damages resulting from nosocomial infections, unless they provide proof of a foreign cause.
The 4 March 2002 Act afforded strict liability for cases involving nosocomial infections, this liability being covered by compulsory insurance. This equilibrium established by the legislator did not resist for long against the insurance lobby. After the June 2002 general elections, the new conservative government decided that the identification of the responsible party would be dependent on the seriousness of the injury caused by the nosocomial infection. According to the 30 December 2002 Act, serious injuries are compensated by ONIAM, a public institution whose main objective is to compensate victims of medical accidents.42 Serious injuries are defined as a permanent impairment – of over 25 per cent – or the death of the patient. Other injuries, qualified as non- serious injuries, will be compensated through the compulsory insurance scheme on a strict liability basis. Serious injuries are taken over through the ONIAM public scheme, ultimately funded through general taxation and social levies. In this latter case, ONIAM will be subrogated against the hospital and its insurance only in cases of gross misconduct during the sterilisation process.43
II B Securing liability with compulsory insurance
16 Compulsory Insurance
For the victims to not bear the risk of insolvency, and in order to limit the risks of compensation – practitioners-wise – it has been established that insurance would be made compulsory for health practitioners and hospitals: not only would doctors need to comply with this new rule, but also every health practitioner such as physiotherapists or nurses. Large
and sound hospitals are the only establishments that are allowed to escape this obligation: they are free to choose self-insurance.44 Many terms of insurance contracts are determined by law, including the guarantee limits (EUR 8 million per accident, EUR 15 million per year of guarantee). It also determines the minimum duration of the guarantee (10 years from the moment the condition of the patient is stable). To encourage out-of- court settlement, private insurance companies are required to make a proper compensation offer when they provide cover.45
17 Premiums
In theory, determining the amount of an insurance premium is entirely a game of negotiation by the parties, insurers and hospitals or independent practitioners. But the reality is quite different as the bargain is not equal: practitioners are bound by law to be insured (or practicing their activity would be illegal), so they have little leverage when facing private insurance companies. To reset some balance, insurers must provide insurance at a fair price. The 4 March 2002 Act has settled an umbrella agency to deal with potential disputes between practitioners and insurance companies (“bureau des tarifications”). Disagreements over the amount of premiums are directed as a last resort to this agency – the latter will decide the price of the premiums.The efficiency of this agency is called into question. Because the market of medical insurance is fragmented, some specialised practitioners still have to pay major insurance premiums. In 2006 however, practitioners demanded and obtained from the French Social Security an annual grant to help them afford insurance. The Social Security is the French Welfare Agency covering health insurance, retirement pensions, maternity leave and work accident compensation. It is mainly funded through social levies (contributions on incomes, either paid for by employees and employers or licensed professionals). The grant allocated to support practitioners in getting a fair insurance premium varies depending on the risks incurred by the medical field, reaching up to EUR 25,200 per year for gynaecology and obstetrics.46 The French system shows a peculiar philosophy: independent medical practitioners’ insurance is compulsory to cover faults – which premiums should be paid for by practitioners or hospitals. However, when the risks of accidents and compensation are deemed too high, premiums ascend accordingly, leaving medical professionals unable to cover for these risks. Ultimately, these professionals turn to the public authorities: as a consequence, the community, through Social Security, pays for this private insurance – hence guaranteeing a fair price.
18 Cover when guarantee is excluded
The compulsory insurance scheme was designed to cover as many liability cases possible. Nonetheless, some cases remain uncovered by this compulsory insurance scheme. Indeed, some scarce cases fall outside the guarantee and the insurers then decline the cover. In such cases, personal liability falls on the practitioner. Those cases can be faced when, for example, guarantee limits are reached. More likely, cases such as these are encountered when the duration of the cover is over.47 To circumvent this risk, a compensation fund was set up in 2011 (Fonds de garantie des dommages consécutifs à des actes de prévention, de diagnostic ou de soins - FAPDS). Its funding emanates from practitioners’ contributions.48 This agency would compensate the victim when the practitioner is personally liable and the insurer declines its cover; the agency has no subrogated action against the practitioner.49
III C Filling the gaps in liability
19 Uncompensated medical accidents
Even the accumulation of liability grounds cannot prevent some medical accidents from not being compensated. When medical accidents result from pure hazard, from the materialisation of a risk, and in absence of any fault, the victim shall not receive any compensation. However, the 2 March 2002 Act has elaborated a subsidiary no-fault scheme to offer a compensation outside of any liability (and private insurance). This scheme is inspired by the no-fault compensation regime created by administrative courts prior to 2002. The public agency ONIAM has been appointed to compensate non-faulty accident causing severe injury. There again, the source of funding is drawn from the French public Social Security system.50
20 Criteria for cover51
ONIAM’s cover is subject to meeting strict criteria. The ONIAM is not designed to compensate every injury; its cover is limited to severe injuries. First, the injury must be caused by a medical intervention. The consequences must be “directly caused by acts of prevention, diagnosis
or care”.52 ONIAM, then supported by an Act of Parliament, excludes accident when the purpose is not therapeutic, such as cosmetic surgery.53
The second condition is that the case must include a severe injury. The criteria to define severe injuries covered are precisely listed: victims shall suffer a permanent impairment over 24 per cent, or they shall have been under incapacity to work for at least a six month period, or they shall have suffered a six month period with a 50 per cent temporary impairment (ie, six months, consecutive or not, over a 12 month period).54 Case law sometimes adopts a generous method of impairment rate calculation. It has held that the impairment rate is not determined by comparison between the victim’s condition before and after the accident. The comparison is rather made between the expected condition of the victim after the intervention and the actual condition of the victim.55 Beside these arithmetic criteria, the scheme includes other severe injuries, especially when victims lost their capacity to work in their position as before the accident and when the accident causes particularly serious disorders, including economic ones, in their living conditions.
The third condition to access the no-fault scheme compensation is the “abnormality” of the consequences of the accident. Patients shall suffer “abnormal consequences with regard to their state of health as well as the foreseeable evolution of this state”.56 Indeed, injuries shall not be the consequences of the patient’s condition. Illness is not compensated per se, but only when it is caused by a medical intervention. To enforce this principle, the administrative courts have developed a double test.57 The first question to ask is: Is the condition of the patient worse than if the intervention had not been performed? Should the answer be positive, the
consequences will be considered abnormal and patients or their families will be compensated.58 If the answer to this first question is negative, then another test applies. It relies on statistics: are the consequences very unlikely considering the procedure and the patient’s condition? For instance, tetraplegia caused by a herniated disc has been considered as a “standard consequence”: it is not qualified as an abnormal consequence, even if it happens only in 6.8 per cent of surgeries to treat this pathology. The boundary to set the territory of “abnormality” is not quite clear, and probably lies around a five per cent frequency.59
21 ONIAM’s management
This scheme clearly improved the compensation for victims of therapeutic hazards. The choice has been made to distinguish cases depending on the seriousness of the consequences.60 This statement is not strongly disputed, even if toning down the test and admitting the cover of smaller injuries has been advocated.61 In 2017, an extremely critical report was released by the Court of Auditors (Cour des comptes) about ONIAM’s management. Many issues were pointed out: the strictness of the appreciation of the damages’ seriousness, slowness of the process (the average time to deal with a case: 2.9 years!), the frequent need for victims to go to courts, and the poor management of the agency.62
III D Improving access to compensation
22 Conciliation and Compensation Commissions
In 2002, not only was the Parliament concerned about compensation in theory, but it also paid close attention to the actual compensation practices. The access to effective compensation can be a difficult process. Insurance companies have the benefit of being more than accustomed to dealing with claims, whereas victims are new to the trade. Gathering evidence is a difficult task: is the injury the result of a fault or the result of the initial disease, or even a consequence of the natural ageing process? Is there a fault? The teachings of the Woodhouse Report63 about these difficulties and the lottery of liability remain fully accurate. Maintaining liability as the main basis for compensation requires an innovative design to smoothen out these drawbacks.To support the victims in their path towards claiming compensation, “Conciliation and Compensation Commissions” have been set up (Commissions de conciliation et d’indemnisation: CCI). Victims can now refer to these commissions whatever the basis of compensation, and even if the grounds for compensation remain blurred or uncertain. These commissions were established to provide a general gateway for compensation in case of medical accidents. Submitting a claim to the commission is only optional and some victims may opt to refer directly to court. The commissions are chaired by a judge, and include patients’ representatives and health system users, representatives of medical practitioners, members of ONIAM and qualified individuals (eg academics).64
23 Compensation process
CCI intervene in cases of severe injury only, as described above. Considering the medical record and the first elements provided by the patient, commissions will admit or reject the case – rooting its decision on the seriousness of the consequences of the accident.65 If the case is admitted, CCI will require a medical expert. CCI shall provide a competent, independent and, whenever possible, collegiate panel of experts. One strong criticism expressed against this scheme underlines the delays in providing such expertise, especially in some specific medical areas.66 Experts and their incurred costs are funded and covered by ONIAM; these expenses will never be borne by the patients. When an insurance company is later declared responsible and liable for the
above n 62, at 78 and following and at 90 and following. See also Lambert- Faivre and Porchy-Simon, above n 1, at para 891.
actual case, it will eventually bear the costs of the medical experts and consequently must reimburse ONIAM for the amounts spent. Further on, based on medical records and expert reports, CCI will issue an opinion. This opinion can identify a fault in the medical treatment, directing the compensation process towards the hospital’s or practitioner’s insurance company. The opinion can also assess that no fault was committed, but the requirements for an ONIAM-based compensation – because of medical hazard – are met. A last possible option is that the opinion states that no ground for compensation could be found.
CCI do not evaluate the amount of a possible compensation payment. They only ascertain that the victim is entitled to compensation and which body is supposed to provide the compensation. From the opinion rendered by CCI, ONIAM and the insurance companies involved must make a compensation offer within four months. Should an insurer fail to make a sufficient offer, ONIAM may substitute for the reluctant insurance body and provide compensation for the victim; in such a case, ONIAM will be subrogated against the insurance company in the victim’s claims. If an insurer wrongfully refuses to make an offer (or possibly made an inadequate proposal for compensation), courts may fine the insurance company. The latter may then be subject to an additional 15 per cent fine to add to the total amount of compensation.
24 ONIAM compensation
ONIAM, acting as a substitute for insurance companies or on its own behalf, may opt to not follow the CCI opinions. In particular, it can decline compensation even if the CCI have acknowledged a compensable medical hazard or established a fault from a practitioner. This ability to disregard CCI’s opinion and possibly rule differently reveals the system’s weakness leading to potential inconsistency.67 Nevertheless, ONIAM has been seen by governments as a useful tool; special regimes of compensation have been transferred or attributed to this agency: accidents resulting from a mandatory vaccination, tainted blood victims infected by HIV or hepatitis C or B, or other health scandals.68
IV Conclusion: what is the point of liability?
25 Liability under resuscitation
Trying to set a comparison between our respective national schemes – New Zealand and France – for compensation law only brings a flow of questions. New Zealand has decided to simply remove liability from the compensation scheme: ACC will provide a compensation whatever the causes of the accident; it has no subrogated action against any wrongdoer. In France, the choice has been made to maintain liability as a ground of compensation, but the traditional liability scheme seems to be under resuscitation through other mechanisms that supplement it – and
private insurance is on top of the list. As a matter of fact, practitioners never get to directly pay out the compensation themselves: the insurance mechanisms, widespread before 2002 have now become compulsory. The public compensation scheme intervenes as well when no liability can be established (ONIAM) or when insurance guarantee is excluded (FAPDS). Moreover, the legislator has acknowledged the difficult access to effective compensation through judicial process and has created the CCI to facilitate and improve this access.
25 Socialised risks
In any case, the risks involved in medical accidents are partially shared. In absence of fault, the consequences of non-serious accidents are not shared and are borne by the patient. In other cases where medical accidents are identified, the risk is shared among the practitioners (through compensation based on liability) or among the society (compensation for medical hazard). In the former case, risks are shared through private insurances and through levies to the FAPDS. In the latter case, when society as a whole takes over, risks are supported on a national scale as “national solidarity”69 through the Social Security scheme. But the so-called “national solidarity” also participates in funding private insurance through the grant offered to help practitioners afford insurance premiums. Therefore, wrongdoers or practitioners virtually never pay themselves.
26 Normative purposes of liability
Since practitioners almost never personally compensate the consequences of their fault or malpractice, the normative purposes or deterrent effects of liability seem to go astray. Professional practitioners are necessarily insured, and if they practice as employee, their employer would be liable in most cases. Moreover, premiums do not depend on the practitioner’s personal history. The rationale behind the premiums’ calculation includes the objective risk of accident depending on the medical speciality. Personal risk rates, inherent to a personal practice, are hardly assessed by insurers.70 The fact that insurance premiums are partly funded by the public Social Security system reinforces the impression that liability has become purely formal. Deterrence and normative regulation of medical professionals probably follow other paths than liability, including professional training and a lifelong education from self-regulating professional bodies, and even criminal prosecution in some cases.
27 Is liability still relevant?
Why maintain the civil and administrative liability as grounds of compensation in a medical context? History, somehow, can be put forward to explain this longstanding attachment to fault based liability. Today, fault is no longer the core test that determines the indebted party in last resort: the community will assume the compensation. More specifically, community can be understood as the one of the insured parties (ie independent professionals or hospitals), or community can be broader and reach a society wide level, through the Social Security system and ONIAM.To date, and notwithstanding any contrary information, it appears that no proposition has been made to abolish liability in a medical context and build an entirely no-fault scheme of compensation. Voices within the French scholars have suggested the creation of a unique scheme to compensate every personal injury (physical or mental) whatever its cause, including reasons other than those of a medical context.71 Underneath this comprehensive scheme, the remains of a fault based liability scheme would live on, allowing the compensation agency to be reimbursed for the expenses incurred by the accident in case its perpetrator was at fault.72
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