2024-10-11 13:21:00
Is the employer entitled to access all the documents or health data of the employee which led to the recognition of the occupational disease? To what extent can medical confidentiality be lifted in the event of an occupational disease being contested by the employer? Four recent cases allow Alexandre Fievée, associate lawyer, and Alice Robert, counsel lawyer from the firm Derriennic Associés to provide a precise update on the state of the law in France today for readers of La Veille Acteurs de Santé.
On the occasion of four similar cases concerning the same employer1, the Court of Cassation was seized of this problem and ruled in favor of the protection of medical confidentiality.
The elements of the case
As in any dispute relating to the employer’s challenge to the recognition of an occupational disease, these cases pitted an employer against the primary health insurance fund (the “fund”).
In these cases, the fund recognized the qualification of “ occupational disease » because the disease, the subject of the dispute, appeared in table no. 42 of occupational diseases entitled “ hearing damage caused by lesional noise »2.
To reach such a conclusion, the fund had previously carried out an investigation and compiled a file, in accordance with the procedure for recognition of occupational disease3.
For the record, this file includes the declaration of occupational disease and the various medical certificates held by the fund, the findings made by the fund, the information exchanged by the employee and the employer, as well as the elements communicated by the regional fund4. This file can be consulted by the employer at the end of the investigation5.
Medical confidentiality at the heart of the controversy
The employer, who had access to the file, criticized the fund for not having attached theaudiometric examination having founded the recognition of occupational disease. Note that an audiometric evaluation, meeting strict conditions, is required by table no. 42. Due to this deficiency, the employer considered that the decision of the occupational illness fund was unenforceable against it.
The fund considered, for its part, that these audiometry examinations were covered by medical confidentiality and therefore did not have to appear in the file. Also, the fund had specified that its administrative services had not had access to this examination held by the medical service, the latter being unable to transmit it to it due to its legal and ethical obligations, except in the case of an expertise.
How then can we articulate respect for the employer’s rights of defense and the protection of medical confidentiality?
The Court of Cassation and its reversal of jurisprudence
The Court of Cassation has, in recent years, adopted different positions on this issue.
She had the opportunity to give priority to medical confidentiality by considering that medical examinations did not have to appear in the fund’s file6. But, concerning more specifically the audiometric examination provided for in table no. 42 of occupational diseases, the Court of Cassation had, on the other hand, considered that this examination “escapes medical confidentiality » considering that it is a “ element necessary to meet the conditions of table no. 42 ».
In our case, the Court of Cassation did not follow its latest case law by considering that “ the audiogram mentioned in table no. 42 of occupational diseases constitutes an element of the diagnosis covered by medical confidentiality, so that it does not have to appear in the documents of the file created by the administrative services of the fund ».
The Court of Cassation notably justified its “ reversal of jurisprudence » as follows:
Its past jurisprudence [faisant échapper l’examen audiométrique au secret médical] poses difficulties “ with regard to the ethical obligations to which health professionals are subject» ;
L’balance between the right of the victim – the employee – to respect medical confidentiality and the right of the employer to an adversarial procedure East ” preserved by the possibility for the employer contesting the professional nature of the illness to request from the judge the appointment of an expert to whom the documents making up the victim’s medical file will be given»7.
What we can learn from this decision.
Diagnostic elements (medical examinations), including those referred to in the occupational disease tables, do not have to appear in the file of the health insurance fund and, therefore, do not have to be communicated to the employer.
This decision confirms the broad scope of medical confidentiality. Indeed, the employer, who cannot directly access the supporting medical examinations, must, in the event of difficulty/dispute, rely on medical expertise (the designated expert may, for his part, be the recipient of the medical examinations) .
Notes :
1 Cass. Civ. 3rd, June 13, 2024, n°22-15.721.
2 For the record, an occupational disease is considered as such, either because it appears in the table of occupational diseases (these diseases being presumed to have been contracted in the professional context if they meet the conditions appearing in said table), or because they meet strict conditions (diseases essentially and directly caused by usual work and leading to death or permanent incapacity of at least 25%).
3 Article R.461-9 of the Social Security Code.
4 Article R.441-14 of the Social Security Code.
5 Article R.441-14 of the Social Security Code.
6 Examples: Cass. Civ. 2nd, January 17, 2008, n°07-13.356; Cass. Civ. 2nd, April 5, 2012, 10-28.484; Cass. Civ. 2nd, March 30, 2017, 16-14.674; Cass. Civ. 2nd, May 29, 2019, n° 18-14.811.
7 In this sense: ECHR, decision of March 27, 2012, Eternit v. France, No. 20041/10.
Read the previous analyzes by Alexandre Fievée and Alice Robert
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