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Rivollier, Vincent --- "Medical compensation under French law: fault, no-fault, and the point of liability" [2019] OtaLawRw 10; (2019) 16 Otago LR 179

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. Introduction

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.

  1. See in English concerning French compensation of medical accidents, Claire Bright and Christopher Hodges “The ONIAM Scheme” in Sonia Macleod and Christopher Hodges (eds) Redress Schemes for Personal Injuries (Hart Publishing, Portland, 2017) 427. See also comparing English and French Law, Simon Taylor Medical Accident Liability and Redress in English and French Law (Cambridge University Press, Cambridge, 2015). See in French, Anne Laude, Bertrand Mathieu and Didier Tabuteau Droit de la santé (3rd ed, PUF, Paris, 2012) at paras 392 and following (translation: Health Law); Yvonne Lambert-Faivre and Stéphanie Porchy-Simon Droit du dommage corporel. Systèmes d’indemnisation (8th ed, Dalloz, Paris, 2015) at paras 780 and following (translation: Personnal Injury Law. Compensation Schemes); Jean Penneau “Médecine: réparation des conséquences des risques sanitaires” in Répertoire de droit civil (Dalloz, Paris) (translation: “Medicine: Compensation of Health Risks Consequences” in Civil Law Encyclopaedia); Caroline Grossholz “Hôpitaux: régimes de responsabilité et de solidarité” Répertoire de la responsabilité de la puissance publique (Dalloz, Paris) (translation: “Hospitals: Liability and Solidarity Schemes” in Liability of Public Authority Encyclopaedia).
  2. Office National d’Indemnisation des Accidents Médicaux, des affections iatrogènes et des infections nosocomiales (National Office for the Compensation of

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.7

This 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).

  1. Directive 85/374/EEC on the Approximation of the Laws, Regulations and Administrative Provisions of the Member states Concerning Liability for Defective Products, [1985] OJ L210/29. It was transposed in 1998 into the French Civil Code (now arts 1245-1 to 1245-17).
  2. Loi no 2002-303 du 4 mars 2002 relative aux droits des malades et à la qualité du système de santé (France) JO 5 March 2002, 4118.
  3. Loi no 2002-1577 du 30 décembre 2002 relative à la responsabilité civile médicale (France) JO, 31 December 2002, 22100.
  4. See generally Oliver Gout “Sens et non-sens de la responsabilité dans la matière médicale” (translation: “Sense and Nonsense of Liability in Medical Matter”) in Johann Le Bourg and Christophe Quézel-Ambrunaz (eds) Sens et non-sens de la responsabilité civile (Université Savoie Mont Blanc, France, 2018) 297 (translation: Sense and Nonsense of Civil Liability).
  5. See, questioning the meaning of the civil liability in the context of socialisation of risks, Johann Le Bourg and Christophe Quézel-Ambrunaz “Introduction” in Le Bourg and Quézel-Ambrunaz (eds), above n 6, at 7.

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

  1. That are merged with the civil courts into “judicial courts”.
  2. Mercier Cour de cassation, chambre civile [French Highest Civil Court] 20 May 1936, reported in (1936) Dalloz Périodique 1.88.

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

  1. Pelletier Tribunal des conflits [French Tribunal dealing with conflicts of jurisdiction between civil and administrative courts] 30 July 1873, reported in (1873) Rec Lebon 5. As long as there is a link between the accident and the service provided by the administrative body (the hospital), the fault could be attributed to the service and the administration would be liable. Personal liability will apply only where there is no link with the service, or where the agent committed an intentional or exceptional serious fault or misconduct. In some cases, both the administration and the agent would be liable: Lemonnier Conseil d’État [French highest administrative court], 26 July 1918, reported in (1918) Rec Lebon 761.
  2. Costédoat Cour de cassation, Assemblée plénière [French Highest Civil Court], 97-17378, 25 February 2000, reported in (2000) Bull Ass Plén, 2. See generally Philippe Brun Responsabilité civile extractontractuelle (5th ed, LexisNexis, Paris, 2018) paras 470-475 (translation: Non Contractual Civil Liability).
  3. ONIAM’s guidelines stipulate compensation between EUR 15,000 and EUR 25,000; Civil courts of appeal guidelines stipulate compensation between EUR 20,000 and EUR 30,000. Some first instance courts go up to EUR 40,000.

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

  1. See generally Geneviève Viney (ed) L’indemnisation des accidents médicaux (LGDJ, Paris, 1997) (translation: Medical Accidents Compensation); Yvonne Lambert-Faivre “L’indemnisation du prejudice des victimes d’accidents médicaux, n’est-ce pas temps d’adopter un système d’indemnisation coherent et stable?” Gazette du Palais (27 November 2001) at 13 (translation: “Compensation of Victims of Medical Accidents, Isn’t it Time to Adopt a Coherent and Stable Compensation System?”).
  2. Lambert-Faivre and Porchy-Simon, above n 1, at para 942.
  3. The Prime Minister and Ministers were prosecuted before a special court, competent for ministers. The Secretary for Health was founded guilty but exempted from any penalty; the others were discharged. See Fabius, Dufoix and Hervé, Cour de justice de la République [French Republic Court of Justice] 9 March 1999, reported in (1999) Revue du droit public et de la science politique en France et à l’étranger 329. The other persons were prosecuted before the criminal courts. See generally Dominique Viriot- Barrial “Le droit pénal face aux grandes catastrophes sanitaires” (2008) Revue de droit sanitaire et social 21 (translation: “Criminal Law in the face of Major Health Disasters”).
  4. See Yvonne Lambert-Faivre “L’indemnisation des victimes post- transfusionnelles du Sida: hier, aujourd’hui et demain” (1993) Revue trimestrielle de droit civil 1 (translation: “Compensation of HIV Transfusion-related Victims: Past, Present and Future”) and Carole Moniolle “Responsabilité et indemnisation à l’égard des personnes contaminées par le virus du sida lors de transfusions sanguines” (1999) Revue de droit sanitaire et social 91 (translation: “Liability and Compensation for persons infected with HIV through blood transfusions”).

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

  1. See generally Yvonne Lambert-Faivre “La loi no 2002-303 du 4 mars 2002 relative aux droits des malades et à la qualité du système de santé” (2002) Recueil Dalloz 1367 (translation: Law no. 2002-303 of March 4, 2002 on the rights of the patients and the quality of the health system).
  2. See Penneau, above n 1, at 64 and following.
  3. Cour de cassation, première chambre civile [French Highest Civil Court], 98-19295, 6 June 2000, reported in (2000) Bull civ I, 176.
  4. Société clinique chirurgicale de la Maison Rose Conseil d’État [French Highest Administrative Court], 3565, 6 October 1976, reported in (1976) Rec Lebon 397; Dame Vion, épouse Loiseau et Dame Philipponeau Conseil d’État [French Highest Administrative Court], 8 November 1935, reported in (1935) Rec Lebon 1019. See Penneau, above n 1, at 175.

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,

  1. Époux V Conseil d’État Assemblée [French Highest Administrative Court], 79027, 10 April 1992, reported in (1992) Rec Lebon.
  2. Cour de cassation, chambre des requêtes [French Highest Civil Court] 28 January 1942, reported in (1942) Recueil critique de jurisprudence et de législation Dalloz 63.
  3. Le Quang Cour de cassation, première chambre civile [French Highest Civil Court], 90-10970 14 January 1992,
  4. Cour de cassation, première chambre civile [French Highest Civil Court], 97-10267, 7 October 1998, reported in (1998) Bull civ I, 291.
  5. Consorts T Conseil d’État [French Highest Administrative Court], 181899, 5 January 2000, reported in (2000) Rec Lebon.
  6. Cour de cassation, première chambre civile [French Highest Civil Court], 94-19685, 25 February 1997, reported in (1997) Bull Civ I, 75; Consorts T, above n 25.

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

  1. For example: Cour de cassation, première chambre civile [French Highest Civil Court], 92-16423, 22 November 1994, reported in (1994) Bull Civ I, 340; Cour de cassation, première chambre civile [French Highest Civil Court], 98-10010, 9 November 1999, reported in (1999) Bull Civ I, 300; Conseil d’État [French Highest Administrative Court], 220437, 9 July 2003, reported in (2003) Rec Lebon. See generally Penneau, above n 1, at 44 and following; Grossholz, above n 1, at 246 and following.
  2. Cohen Conseil d’État [French Highest Administrative Court], 65087, 9 December 1988, reported in (1988) Rec Lebon; Bailly, Conseil d’État [French Highest Administrative Court], 61406, 1 March 1989, mentioned in (1989) Rec Lebon.
  3. Cour de cassation, première chambre civile [French Highest Civil Court], 84-15753, 9 December 1986, reported in (1986) Bull Civ I, 290.
  4. Cour de cassation, première chambre civile [French Highest Civil Court], 88-11477, 29 November 1989, reported in (1986) Bull Civ I, 366.
  5. Clinique Belledonne Cour de cassation, première chambre civile [French Highest Civil Court], 97-18481, 16 June 1998, reported in (1986) Bull civ I, 210.

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

  1. Cour de cassation, première chambre civile [French Highest Civil Court], 97-14254, 29 June 1999, reported in (1986) Bull civ I, 141.
  2. Cour administrative d’appel de Lyon [Lyon Administrative Court of appeal], 89LY01742, 21 December 1990, reported in (1990) Rec Lebon.
  3. Conseil d’État [French Highest Administrative Court], 69336, 9 April 1993, reported in (1993) Rec Lebon.
  4. If the treatment was new, risks could be uncertain or poorly known.
  5. Cour de cassation, première chambre civile [French Highest Civil Court], 99-11735, 8 November 2000, reported in (2000) Bull Civ I, 287.

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 (part

III. 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).

  1. No stare decisis rule applies. Generally, lower courts follow the statements of higher courts, even if civil courts are less disciplined than administrative courts.
  2. Offering a retrospective appraisal of these ideas, Geneviève Viney “Rapport de synthèse” (translation: “Synthesis Report”) in Viney, above n 13, at 103-104. André Tunc proposed a compulsory insurance in 1966, and Jean Penneau proposed a public compensation funds in 1973.

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.

  1. Public Health Code (France), art L 1142-1, para I.1 (“Hors le cas où leur responsabilité est encourue en raison d’un défaut d’un produit de santé, les professionnels de santé mentionnés à la quatrième partie du présent code, ainsi que tout établissement, service ou organisme dans lesquels sont réalisés des actes individuels de prévention, de diagnostic ou de soins ne sont responsables des conséquences dommageables d’actes de prévention, de diagnostic ou de soins qu’en cas de faute.”).
  2. Article L 1111-2, paras 1 and 7 of the Public Health Code resulted from the 4 March 2002 Act (now paras 1 and 8). (“Toute personne a le droit d’être informée sur son état de santé. Cette information porte sur les différentes investigations, traitements ou actions de prévention qui sont proposés, leur utilité, leur urgence éventuelle, leurs conséquences, les risques fréquents ou graves normalement prévisibles qu’ils comportent ainsi que sur les autres solutions possibles et sur les conséquences prévisibles en cas de refus ... En cas de litige, il appartient au professionnel ou à l’établissement de santé d’apporter la preuve que l’information a été délivrée à l’intéressé dans les conditions prévues au présent article. Cette preuve peut être apportée par tout moyen.”).

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

  1. Article L 1142-1, s I, para 2 of the Public Health Code. (“Les établissements, services et organismes susmentionnés sont responsables des dommages résultant d’infections nosocomiales, sauf s’ils rapportent la preuve d’une cause étrangère.”).
  2. See generally Yvonne Lambert-Faivre “La crise de l’assurance responsabilité civile médicale” (2003) Recueil Dalloz 142 (translation: “The Crisis of Medical Liability Insurance”); Yvonne Lambert-Faivre “La responsabilité médicale: la loi du 30 décembre 2002 modifiant la loi du 4 mars 2002” (2003) Recueil Dalloz 361 (translation: “Medical Liability: 30 December 2002 Act Amending 4 March 2002 Act”).
  3. Article L 1142-1-1 and L 1142-17, para 7, of the Public Health Code resulting from 30 December 2002 Act.

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.

  1. In practice only one has made such a choice: the Assistance publique – Hôpitaux de Paris (the structure that manages all public hospitals in the Paris area).
  2. See below at section 23.
  3. Article 185-1 of the Social Security Code inserted by Décret no 2006-909 21 July 2006 (France) (JO, 23 July 2006, 11029), modified several times since then.

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

  1. For example, when practitioners retire, they will be covered only for ten years, starting from their retirement date. The right of action by the victim can last longer.
  2. These levies remain quite low, from EUR 15 to EUR 25 per year, per practitioner.
  3. Article L 426-1 of the Insurances Code inserted by Loi no 2011-1977 28 December 2011 (France) (JO, 29 December 2011, 22441).
  4. See Claire Bright and Christopher Hodges “The ONIAM Scheme”, above n 1.
  5. See generally Lambert-Faivre and Porchy-Simon, above n 1, at paras 863 and following.

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

  1. Article L 1142-1 para II.1 of the Public Health Code (“lorsqu[e les préjudices] sont directement imputables à des actes de prévention, de diagnostic ou de soins”).
  2. Article L 1142-3-1 of the Public Health Code inserted by Loi no 2014-1554, 22 December 2014 (France) (JO, 24 December 2014, 21748).
  3. Articles L 1142-1 para II.1 and D 1142-1 of the Public Health Code.
  4. Conseil d’État [French Highest Administrative Court], 361821 30 July 2014, mentioned in (2014) Rec Lebon. The case was about a man suffering from an ocular cataract who went under surgery to recover his sight. He contracted a nosocomial infection and fully and permanently lost his sight. ONIAM and the administrative court of appeal made a comparison between his previous condition (very poor sight) and his present condition (blindness); they considered his permanent impairment was only six per cent. The Conseil d’État revised this decision and considered his impairment should be calculated between the expected result of the intervention (a decent sight) and the state of the victim (blindness), so the impairment eventually reached over 24 per cent.
  5. Article L 1142-1 pare II.1 of the Public Health Code (“[lorsque les préjudices] ont eu pour le patient des conséquences anormales au regard de son état de santé comme de l’évolution prévisible”).
  6. Conseil d’État [French Highest Administrative Court], 355052, 12 December 2012 reported in (2012) Rec Lebon.

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

  1. For instance, when the patient dies without having initially suffered from a deadly illness, family members can get compensation. If he was suffering from a deadly disease, see the second test.
  2. Tribunal administratif de Paris [Paris administrative first instance tribunal], 0807246, 4 February 2011, quoted by Simon Taylor Medical Accident Liability and Redress in English and French Law (Cambridge University Press, 2015) at 99. In this case, the Administrative Court of Appeal held that the hospital was at fault and compensated the victim on the fault-based liability, see Cour administrative d’appel de Paris [Administrative Court of Appeal of Paris], 11PA03467, 27 November 2012.
  3. Compare the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand Owen Woodhouse Compensation for Personal Injury in New Zealand; Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) at 279: “If economic reasons require preference to be given then the more serious incapacities must always have priority over short-term or minor cases.” (Hereafter: “The Woodhouse Report”).
  4. Lambert-Faivre and Porchy-Simon, above n 1, at para 865.
  5. Cour des comptes [French Court of Auditors], L’indemnisation amiable des victimes d’accidents médicaux: une mise en œuvre dévoyée, une remise en ordre impérative, Rapport public annuel (February 2017) www.ccomptes. fr (translation: Out-of-Court Compensation for Victims of Medical Accidents: a Misguided Implementation, an Imperative Reorganisation, Annual public report). See also Lambert-Faivre and Porchy-Simon, above n 1, at paras 890-892.

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

  1. The Woodhouse Report, above n 60.
  2. See generally Lambert-Faivre and Porchy-Simon, above n 1, at para 790 and following.
  3. The seriousness of the accident for CCI admission is assessed in the same manner as for medical hazard compensation before ONIAM. See above, section 19.
  4. Cour des comptes, L’indemnisation amiable des victimes d’accidents médicaux,

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

  1. Lambert-Faivre and Porchy-Simon, above n 1, at para 804.
  2. See ONIAM website: <www.oniam.fr>.

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.

  1. See, criticising the use of “national solidarity” however it is used by the Public Health Code (art L 1142-1), Jonas Knetsch Le droit de la responsabilité et les fonds d’indemnisation: analyse en droits français et allemand (LGDJ, Paris, 2013) at paras 94 and following (translation: Compensation Funds and Tort Law: an Analysis under French and German Law).
  2. The length of time for damages resulting from an accident to arise is really long, so it is almost impossible to assess a clear risk.

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

  1. Philippe le Tourneau (ed) Droit de la responsabilité et des contrats 2018/2019 (11th ed, Dalloz, Paris, 2017) at paras 0124.11 and following (translation: Tort and Contract Law); Julien Boursoiseau L’influence perturbatrice du dommage corporel en droit des obligations (LGDJ, Paris, 2010) at para 381 and following (translation: The Disruptive Influence of Personal Injury in the Law of Obligations); Christophe Radé “Responsabilité et solidarité: propositions pour une nouvelle architecture” (2009, March) Responsabilité civile et assurances 5 (translation: “Liability and Solidarity: Proposals for a New Architecture”). See generally on personal injuries compensation particularities, Christophe Quézel-Ambrunaz, Philippe Brun and Laurence Clerc-Renaud (eds) Des spécificités de l’indemnisation du dommage corporel (Bruylant, Bruxelles, 2017) (translation: Specificities of Compensation for Personal Injury).
  2. The reimbursement would be claimed from perpetrators themselves or from their insurers. See le Tourneau (ed), above n 71, at paras 0124.12 - 0124.13; Boursoiseau, above 71, at para 381.


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