Cour de cassation, First Civil Chamber (pourvoi no. 01-16.684 and 17.042) Bull.civ. 2006.I. no. 29 p. 26
24 January 2006
Translated by:
Tony Weir
Professor B. S. Markesinis

Given that when Mme Z… was pregnant a biopsy of the placenta, which  showed that the foetus had no chromosomal anomaly, caused a detachment of the placenta and a splitting of the membranes, resulting in a deficiency of amniotic fluid;  that as an in-patient at the Fondation Bagatelle she came under the supervision of Mme X…, a gynaecologist employed there, who, on 25 August 1991, when Mme X… was thirty weeks pregnant performed a caesarian operation on her; that Mme Z… and her husband brought suit against the Fondation Bagatelle and Mme X… in respect of their own pain and suffering and the damage suffered by their daughter, whose limbs were deformed and breathing erratic; that the Fondation called in its insurer, Axa assurances, and that they were both held liable by the judgment under attack (Bordeaux, 18 September 2001) for the moral harm suffered by M. and Mme Z… and the physical harm to their daughter, as being due to negligence on the part of Mme X…who was acting within the scope of her employment by the Fondation Bagatelle;

On the complaints raised by Mme X… and the Fondation Bagatelle…

Given that the court of appeal found on the basis of the expert report that the adverse condition of the child was linked to the shortage of amniotic fluid  whose premature and continued loss during the pregnancy was apt to cause malformations and pulmonary problems  with the risk of heart attacks and nerve damage such that a few weeks later when it was clear that the lack of amniotic fluid was not being made good and that the echo scans had shown a severe shortage and sometimes a total absence of the liquid indicating a strong probability that the child was affected by a serious and incurable defect such that there an abortion should have been considered; and  that although with her medical experience Mme X… could not have failed to realise the possible consequences and should have taken technical advice to help her in this difficult case, she  did not inform the parents of the danger to the child despite having been told by M. and Mme Z… of their wish to proceed to an abortion if the child was at risk, from which the court of appeal could well infer that Mme X… had been guilty of negligence in preventing the parents from  exercising their choice to proceed to an abortion on therapeutic grounds, and that they were consequently entitled to damages for their pain and suffering; that consequently the complaints are not well grounded;

On the other complaints raised by the Fondation Bagatelle and Mme X…, as well as that raised by Axa assurances…

Given that, as the court of appeal was right to hold, the negligence of the doctor in performing her contract with Mme Z… prevented the latter from exercising her freedom to proceed to an abortion on therapeutic grounds and thereby avoid giving birth to a handicapped child, the child could, prior to the entry into force of article 1(1) of Law no. 2002-303 of 4 March 2002 on the quality of the health system and the rights of patients, have claimed compensation for the harm resulting from her handicap which was due to the negligence in question;

Given that article 1(1) of the law cited above, declared to be applicable to current lawsuits, provides that ““no one can complain of the mere fact of being born as constituting harm; in cases where a health professional is seriously at fault in failing to discover during the pregnancy the handicap with which the child would be born the parents may claim compensation only for the harm caused to them personally, to the exclusion of any burdens resulting from the lifelong handicap of the child, which will be borne by national solidarity.”

But given, nevertheless,  that a person may only be deprived of a claim for damages subject to the condition under article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Liberties, that a just balance is maintained between the general interest and the need to protect a person’s right to his property, and that this precondition is not met by article 1(1) of the law in question, since by preventing any action by the child and excluding from the parents’ claim the burdens resulting from such handicap during the child’s life it introduced a system of arbitrary alleviation of the handicap in no reasonable relation to full compensation; given that M. and Mme Z… were legitimately entitled under existing case-law to expect that their daughter would be fully indemnified for the harm resulting from her handicap; it follows that the law is inapplicable to this case and  that the complaints put forward by the Fondation Bagatelle, Mme X… and the insurer are groundless ….

For these reasons DISMISSES …

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