Establishment of the doctor’s liability: the “Mercier” judgment
Physician liability was established in 1936 with the “Mercier” ruling.
This ruling laid the foundations of contractual medical liability.
“A genuine contract is formed between the doctor and his client, involving an undertaking on the part of the practitioner […] to provide the client with care that is […] conscientious, attentive and, apart from exceptional circumstances, in accordance with the latest scientific knowledge; […] the breach, even involuntary, of this contractual obligation is punishable by a liability of the same nature, also contractual”.
Cass. civ. 1. 20 May 1936, Dr N. v. Épx Mercier
This judgment thus gives rise to the notion of a medical contract by recognising the contractual nature of the relationship between doctor and patient.
According to this principle, a genuine contract is formed when a patient consults a doctor, which creates an agreement between them that gives rise to obligations.
Medical contractual liability means that the practitioner owes the patient an obligation of means.
While he does not undertake to cure, he must provide care that is “not arbitrary”, but conscientious, according to the best available scientific knowledge.
The obligation to use one’s best endeavours obliges the debtor to use all reasonable means within the scope of his practice to achieve the purpose of the service, the object of the contract.
The doctor may therefore be held liable if it is proven that he or she has breached this obligation to use reasonable means, for example by demonstrating negligence.
The burden of proof lies with the patient who claims to have been the victim of medical negligence.
This obligation of means excludes from the scope of contractual obligations compensation for the consequences of risk and hazard, unless an exception applies.
“Compensation for the consequences of a therapeutic hazard does not fall within the scope of the doctor’s contractual obligations towards his patient”.
Cass. civ. 1, 8 November 2000, no. 99-11.735
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