Cour de cassation, First Civil Chamber(pourvoi no. 02-12.260)Bull.civ. 2006.I. no. 30 p. 28
24 January 2006
Translated by:
Tony Weir
Professor B. S. Markesinis

Given that Mme Y… gave birth to a child afflicted with spina bifida…; that she and her husband brought suit against M. X…, the gynaecological obstetrician who was supervising her pregnancy, and his insurer, for damages for the harm suffered as a result of his handicap by themselves and by the child; given that the judgment under attack found that M. X… was to blame for not requiring a morphological echoscan  in the fifth to sixth month when it would have had a 65% chance of disclosing the spina bifida and enabling Mme Y… to proceed to an abortion on therapeutic grounds; given that the court below  dismissed the claim in respect of the harm suffered by the child,  awarded the parents provisional damages for their personal loss, consisting of the loss of the chance of aborting the child, the amount of such loss to be determined by experts,   and dismissed the claim by the social security office of Loir-et-Cher (CPAM) against M. X..and his insurer.

On the appeal by M. X and his insurer on the ground that article 1(1) of Law no. 2002-303 of 4 March 2002 on the health system and the rights of patients should have been applied, with reference to article 1015 of the new Code of Civil Procedure;

Given that prior to the entry into force of article 1(1) of the Law 2002-303 of 4 March 2002 concerning the health system and the rights of patients, parents who had indubitably been deprived of the chance of interrupting a pregnancy for therapeutic reasons as a result of the doctor’s failure, in breach of his contract with the mother, to discover the poor condition of the foetus, had been entitled to claim a proportion of the heads of damage resulting from the child’s handicap throughout its life.

Given that the first article of that law, textually applicable to lawsuits then in progress,  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, however,  that article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Liberties provides that a person may not be deprived of a claim for damages unless this is consistent with maintaining a just balance 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, which by barring any action by the child and excluding from the parents’ claim the burdens resulting from such handicap during the child’s life introduces a system of arbitrary alleviation in lieu of full compensation  for the handicap, including the special expenses due to it throughout the child’s life,  which the parents were legitimately entitled to expect under previous case-law, it follows that the law is inapplicable in this case and the complaint is baseless;

On the complaint by CPAM of Loir-et-Cher:

In view of article 1147 Code civil and L. 376-1 of the Code of Social Security:

Given that in dismissing the claim of CPAM the judgment below stated that L.376-1,  which empowers the social security office to bring a claim against any third party responsible for the accident in respect of which it had made payments,  was by its terms manifestly inapplicable to the case, since the condition of the child and its mother did not result from any such accident;

But given that third parties are entitled to claim for sums (other than those for purely personal harm) paid out in respect of a loss directly due to negligent conduct and here the court of appeal held that the parents had lost a chance as a result of the negligence of M. X…,

For these reasons quashes and annuls the judgment below, but only in so far as it dismissed the claim of CPAM of Loir-et-Cher.

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