The Fault constitutes with the damage and the causal link, the holy trinity of the civil responsibility.

Fault is the cornerstone of medical liability. But it remains difficult to characterize from the sole fact that there is always a part of the hazard inherent in the medical act.

This is the reason why the diet no-fault liability is studied with the therapeutic risk and that fault due to a lack of information is developed on a dedicated page.

The principle of medical liability for fault

The principle according to which the doctor is responsible for faults committed during the treatment provided is laid down by a judgment of the Chamber of Requests of the Court of Cassation dated June 18, 1835.

The Mercier judgment of May 20, 1936, specifies that the basis of this responsibility is contractual: “A real contract is formed between the doctor and his client, comprising for the practitioner the commitment, if not obviously to cure the patient (...) of the patient. less than giving it care, not just any (…) but conscientious attentive and, reserves made of exceptional circumstances, in conformity with the data acquired from science ”.

Case law never ceases to remind people that the doctor's responsibility is only engaged because of his fault (Cass. Civ., 1st, of November 22, 2007) to which, over the course of the decisions, it gives an increasingly broad assessment. .

Principles taken up by the legislator with the law 2000-303 of March 4, 2002 known as the “Kouchner” law relating to the rights of patients and the quality of the health system. As well as the law 2004-806 of August 9, 2004 relating to the health policy and its circular DGS n / 2005/123 of March 7, 2005.

Article 2226 of the Civil Code, provides that a patient can initiate the civil liability of a professional or a health establishment within 10 years following the consolidation of the damage (when the patient's condition has stabilized) . Thus, the prescription does not always run from the day of the operation or the taking of the treatment.

Proof of fault

The burden of proof is on the patient. It is therefore up to him to prove fault. "The responsibility of the doctor is subordinate to the proof of a fault committed in the accomplishment of the medical act" (Cass. Civ., 1st of January 4, 2005, n ° 03-13.579).

Any fault, however slight, may be held against the doctor.

Adjustment of the burden of proof

It consists of reversing the burden of proof in terms of:

Information obligation

In the event of fault, it is up to the doctor to provide proof that he has fulfilled his obligation.

Of presumption of accountability

When the fault cannot be established with certainty, it can be deduced from the way in which the medical act was performed: This is the presumption of imputability.

Certain medical procedures are deemed to be simple to perform. Thus, failing to demonstrate that an unforeseen difficulty arose during the operation, the doctor will be presumed to have committed a fault.

Thus, case law has held that a dental surgeon, bound by an obligation of precision in his dental surgery act, has committed a fault if a simple tooth extraction causes labial and neurological damage in the patient (Cass . civ., 1st of October 9, 2001, n ° 99-20.826).

In a similar case (for a sublingual nerve injured during the extraction of a tooth), the Supreme Court held that “the extraction of the tooth not involving the damage suffered by the patient, it resulted in in favor of the latter a presumption of imputability of the damage to a culpable failure of the practitioner "(allowing to) deduce the imputability of the damage to the imprecision of the medical procedure" (1st Civ., January 17, 2008, appeal n ° 06 -20.568).

A practitioner who, during a ligamentoplasty of a knee, severed the patient's middle popliteal artery, had committed a fault when nothing showed that this artery presented an anomaly making the attack inevitable (Cass. Civ. , 1st of May 23, 2000, n ° 98-19.869).

The characters of the fault

Long before the law of March 4, 2002, case law affirmed that medical liability was based on the demonstration of a fault assessed with regard to a practice carried out by care in accordance with the data acquired from science.

Article L.1142-1 of the Public Health Code provides that the fault is due to "the damaging consequences of acts of prevention, diagnosis or treatment".

The judges extended the scope of this obligation:

  • Investigations (preliminary examinations, etc.)
  • To treatment
  • At the follow-up of this treatment
  • To post-operative care.

The law fixes the extent of the domain of the fault without defining it. It is therefore necessary to refer to the case law.

To assess medical malpractice, judges reason by analogy (like this Good father of a family in civil law) and refer to what a normally competent and vigilant doctor, acting in accordance with the data acquired from science and the rules of law. art, would have done if he had been faced with the same conditions.

Medical liability can be held for a simple fault of the doctor in the event of error, delay in diagnosis, clumsiness, imprecision, both in the choice and the implementation of the treatment as in the control of the medical act. .

Cases where fault has been found

Any imprecise, clumsy gesture, any delay in diagnosis… constitutes a fault.

A delay in diagnosis is sufficient to show that the doctor did not bring all the diligence and attention necessary to his contractual obligation. In one case, a patient raised the responsibility of his doctor who diagnosed prostate cancer in 2007 when "the results of the health examination carried out in 2002, (mentioned) clinical signs likely to progress to cancer prostate '. (Cass. Civ., 1st of April 6, 2016, n ° 15-14.253).

A delay in prescribing additional examinations (Cass. Civ., 1st Civ., March 26, 1996)

An erroneous interpretation of the symptoms observed with regard to the data acquired from science (1st Civ., July 8, 1980).

The fault will be deduced from the clumsiness of the practitioner when the simplicity of the act, such as a colonoscopy, leads to a perforation (Cass. Civ., 1st of February 21, 2006, n ° 04-20.685). Or the tear of the trachea during intubation, (Cass. Civ., 1st of April 9, 2002, n ° 00-21.014); even, exercised with brutality causing perforation and damage to the nerves (January 17, 2008); Or the attack on an organ that it was not necessary to touch to carry out the intervention (Cass. Civ., 1st of May 23, 2000).

To note :

The fault could be at the origin of criminal proceedings for manslaughter. It was judged that a doctor on duty who had not made the necessary arrangements to be contacted, exposed the patients in his care to a particularly serious risk (Cass. Crim., February 13, 2007, no. 06-81.089).

However, the fault will be excluded if the doctor demonstrates that he acted in the rules of the art.

Cases where the fault was not retained

Medical malpractice will be excluded whenever "the intervention was in accordance with the rules of the art". Thus, even for a simple act (operation for varicose veins) when the lesion is due to an anatomical peculiarity "of the nerve (located) lower than normal" The fault will not be accepted.

Judgment of June 14, 2005, the 1st Civil Chamber

The fault will not be accepted if “the intervention had been carried out according to a proven technique with the precautions usually recommended, that the practitioner's tactics had been reasonable in view of the difficulties encountered, that no error, imprudence, lack of necessary precaution, negligence or other faulty default could not be held against him ”(Cass. civ., 1st of November 29, 2005, n ° 03-16.308).

It was retained that the lesion of a nerve constitutes a risk inherent to the intervention and does not engage the responsibility of the doctor (Cass. September 18, 2008).

A judgment of March 30, 2007 of the Administrative Court of Appeal of Nantes specified that the delay in diagnosis is not faulty when this diagnosis is difficult to make and that the care and examinations have been in accordance with the data acquired from science.

To note :

In terms of cosmetic surgery and when the purpose of the intervention is not therapeutic, the doctor must respect the principle of proportionality which must lead him to refuse the operation when there is a disproportion between the risks incurred and the random results. envisaged (Paris Court of Appeal June 16, 1995).

In the absence of proven fault on the part of the surgeon, the Court concluded that there was a therapeutic risk inherent in the intervention. We are then in a no-fault liability regime.

The absence of fault does not mean that the patient will not be compensated. Its damage will be supported by national solidarity by seizing ONIAM.

Worsening of the state of health

The fault will be accepted if it contributes to worsening the patient's state of health. It could be a prescription error, dosage, a lack of monitoring ...

Thus, the Council of State held that the repeated prescription of drugs outside the therapeutic indications constitutes a breach of the honor and probity of the doctor (judgment of September 19, 2007)

Failure to monitor a patient with a high blood sugar level constitutes a serious fault within the meaning of article 121-3 paragraph 4 of the Criminal Code for manslaughter following the death of the patient (Cass. Crim., September 12, 2006 ). Or a lack of monitoring of the patient at the postoperative stage (Cass. Crim., February 13, 2007, n ° 06-82.202)

When a fault is at the origin of an aggravation of a damage already constituted, only this aggravation gives rise to the right to compensation and the victim cannot claim full compensation.

Partial compensation was granted in a case where the pediatrician had prescribed a gavage by gastric tube to a child victim of an accident of hypoglycemia a few hours after his birth when his situation required an infusion; this fault was not at the origin of the entire damage but only of its aggravation because the child already presented irreversible consequences. (Cass. Crim., March 21, 2006)

The victim's fault

The fault of the patient may justify a sharing of responsibility which will only entitle him to partial compensation.

In one case, a compress had been forgotten in the patient's abdomen after an operation. The responsibility of the hospital was retained but, the patient having not followed the prescriptions of her doctor who asked her to make an X-ray of her abdomen after the operation was also recognized at fault and was only entitled to to partial repair. If she had followed her doctor's prescriptions, he would have removed the compress and prevented the complications that followed.


The psychiatrist in charge of monitoring a patient must prescribe care and monitoring measures appropriate to the patient's condition; he is liable in the event of suicide when these measures were not taken because he did not sufficiently inform the nursing staff about the risks ”(Cass. civ., 1st of June 21, 2005).

Thus, in the event of aggression of a patient by another, the responsibility of a psychiatric establishment will only be retained if it is demonstrated that there has been a fault in the organization and functioning of the service. November 14, 2006 the Administrative Court of Appeal of Bordeaux

It should be observed that the responsibility of the psychiatrist tends to extend dangerously. Recently, a psychiatrist was prosecuted for acts committed by one of his patients outside the establishment.

The fault of the Service

This is a fault committed in the organization of the service.

It is due to a lack of surveillance, presence, medical competence, or insufficient resources provided by the clinic or hospital.

It was held that the damage suffered by a patient was due to a defect in the organization of the service of the private clinic. In this case, the doctors were absent and intervened only late to respond to a difficulty that arose during childbirth (Cass. Civ., 1st of December 15, 1999, n ° 97-22.652).

Steps to follow for a victim of medical error

Badly implanted dental prosthesis, nosocomial infection, failed cosmetic surgery, no one is immune to fault or medical error. Therefore, it is important that everyone knows what to do if they find themselves in such a situation.

  • Discuss with the relevant healthcare professional: the first initiative to take is to seek compensation from the doctor concerned. So that he makes up for his mistake or negligence. This through a new intervention or compensation.
  • Request a copy of your medical records : if the discussion with the professional has not been conclusive, ask for a copy of your medical file. This by sending a registered letter with acknowledgment of receipt, or by mail, depending on whether it is a medical office, a hospital or a clinic.
  • Start the process with your practitioner : if thanks to a multi-risk home contract or through your complementary health insurance, you benefit from a legal protection guarantee, and therefore legal assistance, then submit the case to these authorities which will take care of it. Otherwise, contact the CRCI (regional commission for conciliation and compensation for medical accidents) for an attempt at conciliation. This reconciliation is only possible if the damage is not serious and if the practitioner wishes to cooperate. However, for faster and more effective action, have recourse to the services of a lawyer. You'll need find a medical lawyer.
  • Contact your practitioner's insurer : to resolve your problem amicably, with the help of your lawyer, contact your healthcare professional's insurer for compensation. However, this procedure is only possible if you have a legal protection contract.
  • Take legal action : if all these attempts at amicable resolution prove unsuccessful, then with the help of your lawyer, you will have to go to the administrative court (if your dispute opposes you to a public hospital), or the district court (if your dispute opposes you to a city doctor or a clinic).

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A comment

  1. Hello, my husband arrived at the emergency room with a cough diagnosed two weeks ago with bronchitis. In the emergency room they missed the EEG AND RADIO which showed that there was a problem in the heart; 4 days later he was admitted to the emergency room with severe heart failure. Of course she was already present when he came to the emergency room and they passed by.
    Followed a MASSIVE STROKE 6 days later.
    What is it?
    It is the fault of the emergency doctor that is provided by two internal expert doctors at the insurance. But will they consider that the pathology was there and that it would not have changed anything? OR Will they consider that the diagnosis was delayed and that everything could have been different?

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