LAWYER IN NICE
A significant development in medical liability law.
On October 16, 2024, in decision no. 22-23.433, the First Civil Chamber of the Court of Cassation issued a notable ruling regarding the rights of victims of bodily injury.
In this case, Mrs. E underwent a hip procedure. During the operation, a metal pin broke.
As a result, Mrs. E experienced severe pain, which persisted for over two years.
For this reason, she decided to sue the surgeon who had operated on her two years earlier, seeking liability.
An expert assessment revealed that the metal pin’s breakage could have been caused by:
- A pre-existing anatomical predisposition of the patient, or;
- A mistake by the surgeon, who allegedly failed to follow the medical protocol recommended by the French Society of Arthroscopy (SFA).
Indeed, the surgical report failed to mention that the surgeon had started the operation by introducing air, followed by saline solution.
In his defense, the doctor argued that he routinely performed this initial step, even though it was not recorded in the report.
The Court of Appeal, considering this omission as merely a hypothetical fault, gave the benefit of the doubt to the surgeon and dismissed Mrs. E’s claims.
However, the Court of Cassation overturned this decision, holding that the absence of a complete record of the medical procedure in the surgical report established a presumption of fault against the surgeon.
Thus, it was up to the doctor to prove that he had strictly followed the medical protocol.
This ruling represents a significant development in medical liability law.
By principle, Article L1142-1 of the French Public Health Code states that a doctor’s liability can only be established in cases of proven fault, with the burden of proof resting on the victim.
Nevertheless, with this decision, the Court of Cassation reverses the burden of proof by creating a presumption of fault against the doctor in cases where all medical actions are not properly documented.
Maître DAMY, a lawyer in Nice and an expert in bodily injury law, provides dedicated support to victims in their legal proceedings. Feel free to contact us.
