The Court:

Given that between a doctor and his patient there is formed a true contract which involves an obligation on the medical practitioner – not, of course, to cure the patient, which has never been suggested -- but to treat him, not just anyhow, as the complainant seems to suggest, but in a conscientious, attentive manner which, in the absence of exceptional circumstances, conforms to the state of medical science; given that even an unintentional breach of this contractual obligation is sanctioned by a liability likewise contractual, and that the civil suit by which this liability is actualised is not based on conduct which constitutes a criminal offence but is rooted in the anterior contract and thus falls outside the three year prescriptive period of article 638 Code of Criminal Procedure;

Given that the Court of Appeal of Aix was thus entitled to declare this provision inapplicable here, and that in so deciding, it not only did not violate but made a just and precise application of the texts in question;

For these reasons DISMISSES the application for review.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 20 May 1936 [Dalloz periodique 1936, I, p 88]: The relationship which is formed between a doctor and his patient is of a contractual nature involving, for the doctor, the commitment of giving to the patient professional care, not just of any kind, but conscientious, attentive and, save in exceptional circumstances, in conformity with the established facts of science. Violation of this contractual obligation, even if it is involuntary, is enforced by the sanction of a liability which is likewise contractual, taking its origin from the pre-existing agreement, and therefore distinct from conduct amounting to a criminal offence, thus avoiding the limitation rules in relation to criminal matters. Case law maintained.

This solution has not since been called in question, so a point has been reached when we can speak of this relationship being characterised by a ¿¿medical contract¿¿ and, consequently, that a liability action by a patient against a doctor takes place on the "territory" of contractual liability. A judgment of the 30 October 1962 (1st civil section, Bull no 450) can be cited which confirms and reinforces this solution, quashing a decision which had declared a doctor liable on the basis of article 1384 para 1 of the Code civil, because of a fall suffered by his patient when coming down from the examination couch. The appeal court had considered that "although the doctor's liability was contractual in nature, such liability could only apply in the strict accomplishment of a medical operation, the rules of the droit commun recovering their authority outside this operation".

The Cour de cassation considers such a dissociation to be arbitrary: "the doctor is bound by the contract which binds him to the patient to give to him professional care which is conscientious, attentive, prudent, and in conformity with the established facts of science"; "violation or defective fulfilment of such an obligation is enforced by the sanction of a liability which is contractual in nature, and exclusive of the liability enacted by article 1384 paragraph 1 of the Code civil". It should be pointed out, however, that the practical consequence of this judgment in relation to limitation of actions has become obsolete since a law of the 23 December 1980 abolished the interdependence of civil and criminal limitation periods.

Translation by Mr Raymond Youngs

Back to top

This page last updated Thursday, 15-Dec-2005 09:05:51 CST. Copyright 2007. All rights reserved.