14 February 1997

Conseil d’Etat:

In view of the summary request and complementary memorandum lodged on 20 January and 14 April 1992 on behalf of the Centre hospitalier régional de Nice, at 5, rue Pierre Devoluy, Nice, 60000, asking the Conseil d’Etat to annul the decision dated 21 November 1991 of the administrative court of appeal of Nice which on the one hand annulled the decision of the administrative tribunal of Nice dismissing the claim by M. and Mme Quarez for damages for the harm due to the failure of the centre following an amniocentesis to test Mme Quarez for Down’s syndrome, and on the other hand held the centre liable in various sums;…

Considering that at the request of Mme Quarez, aged 42 and then in the seventeenth week of her pregnancy, the genetic service of the Centre hospitalier régional practised on her an amniocentesis with a view to a chromosomic examination of the cells of the foetus, that this examination revealed nothing untoward, and that the male child of which she was delivered on 28 April 1987 was afflicted with Down’s syndrome; the Centre hospitalier régional of Nice now demands the annulment of the decision of the administrative court of appeal of Lyon dated 21 November 1991 holding it liable for the harm suffered both by M. and Mme Quarez and their son Mathieu by reason of his congenital handicap;

Considering that in deciding that there was a direct causal link between the fault committed at the time of the amniocentesis by the Centre hospitalier régional de Nice and the harm suffered by young Mathieu through the Down’s syndrome when it was not established no the dossier submitted to the judges that the child’s infirmity, which is inherent in his genetic make-up, was due to the amniocentesis, the administrative court of appeal of Lyons committed an error of law which invalidates its decision;

Considering that the court below has so confounded the elements of the damages payable to M. and Mme Quarez and to their son as to make them inextricable, the whole decision must be annulled;

But considering that article 11 of Law no. 87-1127 of 31 December 1987 permits the Conseil d’Etat in annulling the final decision of an administrative court to “deal with the case on the merits if good administration of justice so requires”, and that here there is good reason to determine the merits;

…

On liability

Considering that it emerged from the judge’s findings that the genetic department of the Centre hospitalier régional de Nice merely told Mme Quarez that the examination she had undergone “had not disclosed any anomaly detectable by the methods employed” and failed to inform her that in view of the conditions under which the examination had been conducted its results were subject to an unusual margin of error; that in this respect M. and Mme Quarez may maintain that the specialist service of the Centre hospitalier régional was at fault;

Considering that it also emerges from the judge’s findings that in requesting an amniocentesis Mme Quarez had made it clear that she wished to avoid the risk of genetic problems in the child she had conceived, the probability of such problems being quite high in view of her age; that she and her husband thus sought from the Centre hospitalier régional de Nice a diagnosis of the risk involved; that in these circumstances the fault committed by the genetic service of the Centre hospitalier régional de Nice led the parents into the erroneous belief that the child conceived was not affected by Down’s syndrome and that Mme Quarez could safely proceed to bear the child;

Considering that this fault made it pointless to have the further amniocentesis which Mme Quarez could have had if she had proceeded to an abortion on therapeutic grounds under L. 162-12 of the Code of Public Health, and so must be regarded as the direct cause of the harm to M. and Mme Quarez due to the infirmity of their child;

Considering that this shows that the applicants are entitled to call for the annulment of the decision under attack;

The Damages due to M. and Mme Quarez:

Considering that the award of 100,000 francs damages to each of the parents would be an appropriate sum for the moral harm, the disturbance of the conditions of their lives as well as certain parts of the patrimonial loss they have established;

Considering that under the head of material damage account must also be taken of the extra expenses, such as special care and educational needs, which M. and Mme Quarez will incur by reason of the child’s handicap, and that therefore it is right to hold the Centre hospitalier régional de Nice bound to pay them a capital sum representing a monthly payment of 5,000 francs for the lifetime of Mathieu Quarez….

DECIDES:

Article 1: The decision of the administrative court of appeal of Lyons dated 21 November 1991 is hereby annulled.

Article 2: …

Article 3:…

Article 4:The Centre hospitalier régional de Nice is ordered to pay 100,000 francs to each of M. and Mme Quarez, as well as a capital sum representing a monthly payment of 5,000 francs for the lifetime of Mathieu Quarez…

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