2024-10-07 04:00:10
The 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, like the amputation of the good leg instead of the other, his damage would not have happened.
If experts show that the surgeon committed no fault, and that the accident resulted entirely from a therapeutic hazard, an iatrogenic condition (due to medical treatment, medication or a doctor) or a nosocomial infection, the patient can also obtain full compensation for his damage, provided that it presents a certain degree of seriousness and abnormality, with the National Office for Compensation for Medical Accidents (Oniam). This results from the law of March 4, 2002 relating to the rights of patients and the quality of the health system, known as the “Kouchner law”, and the public health code (article L1142-1).
What about the mixed case, where the surgeon has only partial responsibility for the damage, his fault having only increased the risk of occurrence of a therapeutic hazard? This question was recently asked at the Court of Cassation in relation to the following case.
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On January 3, 2009, the surgeon of a private hospital in Lyon takes care of Mrs. He makes a first mistake by not identifying his hernia. Then a second, by placing an unnecessary plate on him, which increases the risk of damage to the genito-femoral nerve, inherent in the operation to lower the joint tendon, which he otherwise performs correctly.
Loss of luck
Mrs. takes legal action. An expert believes that the doctor’s fault caused him “lose a 50% chance” to escape the consequences of therapeutic hazard. The Lyon court concluded that the hospital must compensate him for 50% of his damage. It excludes any additional intervention by Oniam, under 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 Lyon Court of Appeal, which Mrs. November 24, 2022, to apply the contrary case law of the Council of State (valid for public establishments), according to which the intervention of Oniam is only ruled out if the damage is entirely the consequence of a fault. It orders the hospital to pay 50% of the damage, or 47,872 euros, and Oniam to pay the remaining 50%, so that Mrs.
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