lThe patient who is the victim of a fault during a surgical operation can obtain from his surgeon full compensation for his damage, if he proves that, without this fault, such as the amputation of the good leg instead of the other, his damage would not have occurred. . happened.
If the experts demonstrate that the surgeon was not at fault and that the accident was entirely due to a therapeutic risk, an iatrogenic condition (due to medical treatment, medication or a doctor) or a nosocomial infection, the patient can also obtain full compensation for their damage, provided it presents a certain degree of severity and abnormality, before the National Accident Compensation Office Doctors. Accidents (Oniam). This results from the law of March 4, 2002 on the rights of patients and the quality of the healthcare system, known as the “Kouchner law”, and the public health code (article L1142-1).
What about the mixed case, in which the surgeon has only partial responsibility for the damage and his fault has only increased the risk of a therapeutic risk occurring? This question was recently asked at the Court of Cassation in relation to the following case.
On January 3, 2009, the surgeon at a private hospital in Lyon supports Mme X for pubic pain. He makes a first mistake by not identifying his hernia. Then a second, placing an unnecessary plate, which increases the risk of damage to the genito-femoral nerve, inherent to the joint tendon lowering operation, which he otherwise performs correctly.
loss of luck
METROme X, who must endure new pain, linked to this neurological complication, take legal action. An expert believes that the doctor’s fault caused him “lose 50% chances” to escape the consequences of therapeutic risk. The Lyon court concluded that the hospital must compensate him with 50% of his damages. It excludes any additional intervention by Oniam, according to the jurisprudence of the Court of Cassation (November 16, 2016, 15-20,611), according to which the fault of the professional prohibits any compensation under national solidarity.
The Court of Appeal of Lyon, which Mme X understands, but decides, November 24, 2022, apply the contrary jurisprudence of the Council of State (valid for public establishments), according to which Oniam’s intervention is only excluded if the damage is entirely a consequence of fault. It orders the hospital to bear 50% of the damages, that is, 47,872 euros, and Oniam to bear the remaining 50%, so that Mme X is fully compensated.
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