Failure to inform the patient constitutes a fault allowing the civil liability of healthcare professionals to be raised. However, when it comes to liability, it is not enough to be at fault. There must be damage and a causal link between the fault (lack of information) and the (bodily) damage to obtain compensation for the damage suffered.

The basis of the liability regime for breach of information obligation is based entirely on the causal link between fault and damage, the mode of assessment of which has undergone such remarkable development that, in order to be understood, it was necessary to go back a little.

The evolution of the Basis of liability for failure to provide information

Sometimes there is no doubt that the failure to inform has caused harm to the patient.

The doctor is bound by an obligation of science and conscience imposed by the code of medical ethics (Cass. Civ, 1st November 27, 2008, n ° 07-15.963). Thus, any technical fault, any delay in the diagnosis of the disease or in the insufficiency of treatment, will constitute a breach of his obligation to inform (the doctor cannot inform his patient of facts that he himself was unaware of. his only negligence!) and the patient will be entitled to compensation for the entire damage.

The same applies when the doctor performs an act on the body of a patient without having taken the trouble to inform him, such as tubal ligation (Cass. Civ, 1ère October 11, 1988, n ° 86- 12.832). Here again, compensation for the damage is necessary because there is no doubt about the causal link between the fault (lack of information) and the damage (making the patient sterile).

In this specific case, the patient would have refused the operation " IF " she had been informed. And the judges had no trouble understanding it because it is human to want to think twice when you perform an act having irremediable consequences on your body (ablation, tubal ligation ...) or when the risks incurred are too much. serious (paralysis, death, etc.).

It is this lack of choice that will condition the fault. The difficulty being that in order to assess it, it is necessary to guess how the patient would have reacted if he had been validly informed. Perhaps he would have given up on care, treatment or the proposed operation… And maybe not… With “ SI »We would put all the healthcare establishments in bottles, and the doctors on the straw.

The fact remains that this doubt weighing on a choice that has never been given to the patient is fraught with consequences. Indeed, how could judges, who still do not have a time machine, assess and therefore repair the damage suffered? It is to get around this “doubt” that case law will first adapt the theory of “ the loss of luck »Which provided partial compensation for the damage suffered (1), before abandoning it in favor of a strict application of legislative texts which, by giving a legal framework to the obligation to inform, upset the method of assessment and compensation for damage suffered (2).

1- Partial compensation for the damage suffered: Loss of luck

The court of cassation lays down the principle according to which, " The violation of an obligation to inform can only be sanctioned by virtue of the loss of a chance suffered by the patient to escape, by a perhaps more judicious decision, the risk which has finally materialized. ”(Cass, civ, July 1, 12; April 2006, 7). A position shared by administrative jurisprudence (when care is given in a public establishment, it is the administrative judge who is competent).

The lack of information constitutes a fault whenever it causes the patient to lose a chance to make the right decision for the improvement of his condition. It is up to the victim (or his beneficiaries) to prove that the failure of the doctor has deprived him of a chance of recovery, to avoid serious consequences, or even to cause his death.

Clearly, the supreme courts reason by varying ad infinitum on the theme of " If I would have known I would not have come !". By not informing him of all the risks involved, the doctor deprived his patient of a chance to make his decision in a conscious and enlightened manner. If the patient had been validly informed of the risks (which have arisen) he could have renounced the act. (Unless the act was essential).

However, even if it benefits the patient, there is still a shadow of doubt. That is why the patient could never claim full compensation for his damage. Its compensation, which could only be partial, was assessed on the one hand, according to the various heads of damage invoked by the victim and, on the other hand, on the assessment of the compensable loss of opportunity.

Illustration :

A doctor recommends treatment but does not warn his patient of the risks involved (libido, behavioral disorders, paralysis, etc.). The patient reacts badly to the drugs and one of these risks occurs. Behavior disorder (he can no longer work and his family life has become hell ..). Well, the judge to assess the harm will put himself in the patient's shoes when the information should have been given and will say to himself: Given the hoped-for benefits (yes, the heart should be better!) There would be I had an 8 in 10 chance that I would accept this treatment, so a 2 in 10 chance that I would refuse it. Here is! The loss of chance is estimated at 20%.

So if the patient assesses his damage at 10 euros, and the judge assesses the loss of chance at 000%, the damage will only be compensated up to a maximum of 20 euros (but the judge freely assesses the final amount).

1st consequence of the loss of luck:

Even if the information had not been correctly delivered but the patient's state of health had improved, or the benefit of the act outweighed the disadvantages, or the operation had been successful. Failure to comply with the information obligation did not constitute reparable damage. This amounted to recognizing a posteriori that the doctor did not incur any sanction even if it was proven that he had failed in his obligation to inform. After all, the patient hadn't complained that he had done so well.

2nd consequence of the loss of luck:

Failure to comply with the information obligation only allowed partial compensation for the damage. Case law constantly recalls this principle "The violation of an obligation to provide information can only be penalized for the loss of a chance suffered by the patient to escape by a decision may be more judicious at the risk that has finally come true. ". (Cass, civ, July 1, 12).

Many voices have been raised against the excesses caused by the application of the theory of loss of chance. On the one hand, this placed the risk of the therapeutic hazard on the medical professions and on the other hand it required the judge to assess the damage, to retrospectively put himself in the victim's place to guess what she would have done. if she had been aware of all the risks involved.

To render justice as one renders the auspices such as the pythia in a mode close to divination, we may say, it is messy. All the more so as "to put yourself in the place of ..." to render a court decision is already to take sides, which is contrary to the principles of impartiality and fairness which should guide the judge in his office. Of course, “it's not good” but let's keep in mind that without these small adjustments very little, even no repair would have been possible!

Finally, it is the law on patients' rights of March 4, 2002 which, by making the obligation to provide information on the medical professions a legal obligation, imposed the abandonment of the loss of opportunity to assess and repair the harm suffered by patients.

2 - Full compensation for the damage suffered

The law on patients' rights of 2002 will impose a new basis for the compensation of the damage suffered by making the duty to inform all medical professions a legal obligation. But case law will go further by including patients' right to know among human rights, which will upset the entire liability regime for physicians who have failed in their obligation to provide information.

Well, we might as well prevent, the concept is legally difficult, so to make it accessible to as many people as possible, we will come back step by step to the reasoning held by the judges of cassation.

It all started with a judgment handed down on October 9, 2001 (Cass. Civ. 1ère, October 9, 2001, n ° 00-14.564) which announced a precursor change in two stages:

1) The information obligation was no longer referred to in Article 1147 of the Civil Code (contractual liability) but in Article 1382 of the Civil Code (tort liability) which requires full compensation for the damage suffered, so that contractual liability only admits compensation limited to foreseeable risks arising during the execution of the contract.

2) The information obligation is now based on texts: It is a legal obligation. But we are before the Kouchner law, the judges will therefore be based on texts protecting fundamental rights, namely:

  • Article 3 of the Charter of Fundamental Rights of the European Union "Within the framework of medicine and the law, the free and informed consent of the person must in particular be respected. »
  • Article 16 of the Civil Code: "The law ensures the primacy of the person, prohibits any attack on the dignity of this one and guarantees the respect of the human being from the beginning of his life. »
  • Article 16-3 of the Civil Code: " The integrity of the human body can only be violated in the event of medical necessity for the person or exceptionally in the therapeutic interest of others. The consent of the interested party must be obtained beforehand except in the case where his condition makes necessary a therapeutic intervention to which he is not able to consent. »

Then comes a judgment rendered by the Court of Cassation of June 3, 2010 (Cass, civ, 1st of June 3, 2010, n ° 09-13.591) which will set the framework for the assessment of the damage in terms of lack of information. .

The facts of this case are straightforward. A patient was operated on without having been informed of the risks inherent in the operation. He incurred if he refused a risk of infection and, if he accepted a risk of impotence (which finally came true). The trial judges, ruled according to the good old method of the " loss of luck And judged that even if he had been informed of the risks, he would not have abandoned the operation since there was an emergency. As a result, whether or not he had been validly informed, he was running a risk in both cases. In short, having the choice only between plague and cholera, he could only claim partial compensation for the damage suffered.

But the judges quashed the judgment in favor of a new legal reasoning to assess compensation for the damage.

The information obligation is a legal obligation. There is no longer any doubt since the Kouchner law of 2002 imposes the obligation to inform in an article 1142-1-1 of the public health code (Cass, civ.1ère of October 14, 2010).

But our decision of June 3, 2010 goes further because it does not base the information obligation on the public health code.

It bases its decision on the visas of articles 16 and 16-3 of the civil code (yes, like the decision of October 9, 2001). And that changes everything! These articles are linked to the rights of individuals and therefore to the rights of personality protected by Article 9 of the Civil Code according to which any finding of an infringement of the rights of individuals gives rise to the right to compensation.

Combined with article 16-1 paragraph 2, on the inviolability of the human body, we end up with a completely new reasoning: Touching the human body means touching the person and therefore necessarily the violation of personality rights.

With this case law, the judges applied to the letter of the fundamental principles to the right to the obligation of information weighing on the medical profession.

The medical act leads to touching the bodily integrity of people. Whether through the action of drugs, an operation, a manipulation ... Directly or indirectly, we touch the body. And you can only attack a person's integrity with their free and informed consent.

Therefore, not informing your patient amounts to a violation of the right to respect for the bodily integrity of the person (art. 16-3 of the civil code) and the violation of the right to respect for the dignity of persons (art. 16 of the civil code).

From now on, the sole finding of the lack of information constitutes in itself a loss which will give rise to full compensation for the damage (art. 1382 of the civil code). Regardless of whether the operation went well or not (and therefore whether the risk materialized or not), the physician's responsibility could always be raised and this, contrary to the theory of loss of chance which, in the absence of damage, did not allow the fault of the doctor to be accepted.

The duty to inform is a legal obligation based on human rights.

And the case law does not stop there. In a decision of April 23, 2014 (Cass, civ. April 23, 2014, n ° 12-22.123) the judges extended the right of compensation to non-pecuniary damage.

Let us recall that the theory of loss of chance did not give rise to the right to non-pecuniary damage, unlike the Council of State which, following the opinion of its rapporteur, had admitted in 2012 that " reparation for any troubles he may have suffered due to the fact that he could not prepare for this eventuality by making personal arrangements ... »Gave the right to compensation for the moral prejudice of the patient. (CE October 10, 2012, n ° 350 426 rec. Lebon)

In its decision of 23 April 2014, the Court of Cassation operates the same reasoning as the administrative judges by granting a right of compensation for “ damage resulting from a lack of preparation for the consequences of such a risk that the judge cannot leave without compensation ».

Article 1382 of the Civil Code considerably opens up the field of reparable damage since now all damage can be repaired. (inability to return to work, home help, moral preparation before the operation, etc.).

The case law developed since 2010 around the duty to provide information may seem "surprising" because few decisions are ultimately made under article 1142-1-1 of the public health code to favor articles and fundamental principles that did exist. before the Kouchner law of 2002.

Then ? You will say to me, why elaborate the theory of the loss of chance when more appropriate texts made it possible to base the total compensation for the damage suffered?

Well, and this is a personal opinion, the main innovation of the Kouchner law was not to give a regulatory framework to the information obligation that already existed in national and international texts. But to make the repair of the therapeutic risk weigh on society by creating commissions responsible for evaluating and repairing prejudices that could not be linked to any fault on the part of the doctor.

Therapeutic hazard or " the fault is bad luck Was the main flaw in the information obligation breastplate. There is always an element of randomness in the medical act (physical disorders, disability, death, etc.), whether the patient has been validly informed or not. Only the theory of loss of chance made it possible to circumvent the devastating effects of the refusal to repair the damage suffered.

Now things are clear. The therapeutic contingency being taken care of, only will be referred to the courts real case of lack of information. A legal obligation, reinforced and therefore more severely repressed.

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