- CE, Ass., 9 avril 1993, p. 126 Case Bianchi
- 09 April 1993
- Translated by:
- Tony Weir
- Professor B. S. Markesinis
9 April 1993
In view of the decision of 23 September 1988 whereby the Conseil d’Etat, prior to reaching a conclusion on the application of M. Bianchi, ordered an expert investigation into the circumstances under which he was injected on 3 October 1978 with an iodic dye as a preliminary to an arteriography;…
Considering that by its decision of 23 September 1988 the Conseil d’Etat dismissed the arguments of M. Bianchi to the effect that the vertebral arteriography effected on him in the hospital de la Timone in Marseilles was carried out by a team not medically qualified, that he had not consented to the operation and that the post-operative treatment he received was inadequate; and that these matters have been conclusively determined and cannot be reopened;
Considering that it emerges from the report of the new expert ordered by the above-mentioned decision of the Conseil d’Etat that the iodic dye which M. Bianchi was necessarily injected if the arteriography was to take place played no part in the difficulties subsequently appearing, that there was no ground for suspecting that he was hypersensitive to iodine or would have any negative reaction, and that, despite the fact that the report of the actual arteriography has not been discovered, the facts found immediately after the examination make it clear that the dosage of iodine injected was not excessive by the standards generally accepted at the time; that the expert found that the probable cause of the accident was a secondary occlusion of the artery serving the cervical medulla by a tiny bubble or pebble dislodged by the investigation or by the expulsion of the injected dye, a risk which is inherent in examinations of this type; that it follows from these findings and expert opinions, consistently with the other documents in the dossier, that there was no fault in the way the arteriography was carried out on M. Bianchi;
Nevertheless, considering that when and procedure required for diagnosis or treatment involves a known risk, even one which is only exceptionally realised and even and when there is no reason to suppose that the patient is particularly likely to suffer it, the public hospital service is liable where such procedure is the direct cause of very grave damage unrelated to the initial condition of the patient or its probable development;
Considering that these requirements are met by the risk inherent in vertebral arteriography and the consequences of its being practised on M. Bianchi, and that M. Bianchi is thus entitled to call for the annulment of the decision whereby the administrative tribunal of Marseilles dismissed his claim for damages against the public authority in Marseilles;
On the Damage:
Considering that it emerges from the first judgment and especially from the expert opinion at first instance that in consequence of the arteriography of 3 October 1978 M. Bianchi, born on 22 June 1936, was rendered tetraplegic in the lower limbs, suffering from pyramidal syndrome and loss of sensation, leading to loss of mobility in walking and in the upper limbs, and increasingly acute osteotendinous reflexes; that he suffers from serious pain unresponsive to therapy and difficulties of evacuation; that he requires the assistance of third parties; considering that the condition of the patient prior to entering the hospital must be taken into account, and that on admission M. Bianchi was already suffering from nauseating vertigo and pains of a cervico-occipital nature as well as a facial paralysis of which traces remain; that his state of health had required him to stop working early in 1977; that an appropriate amount of compensation for the harm resulting from the arteriography is 1,500,000 francs;
Art. 1: The decision of the administrative tribunal of Marseilles of 8 November 1984 is annulled.
Art. 2: The public authority of Marseilles is held liable to pay M. Bianchi the sum of 1,500,000 francs, with interest at the legal rate from 1 October 1982 …
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