Cour de Cassation, First Civil Chamber, (pourvoi no. 01-17.908)Bull.civ. 2004 I no. 262, p. 219
09 November 2004
Translated by:
Tony Weir
Professor B. S. Markesinis

In view of articles 1382 and 1384(5) of the Code civil:

Given that a salaried medical doctor is not personally liable to a patient for conduct which falls within the parameters of the work which a private health clinic retains him to effect.

Given that after an operation on his carotid artery M. Y… was placed under the supervision of M. X…, a doctor on the staff of the International Clinic of the Parc Monceau, that he then suffered a haemorrhage followed, despite further surgery, by a paralysing stroke; given that he then brought suit against the International Clinic of the Parc Monceau, M. X… and their insurers;

Given that in its judgment that M. X… and his insurer were both liable for 90% of the harm suffered by M. Y..., representing the lost chance of recovery,  the court below held that although M. X… was a paid member of the staff he remained independent in his professional activity and so was liable for the inadequacy of his post-operational supervision under article 1382 Code civil;

But given that in so holding the court of appeal violated the texts mentioned above;

For these reasons …. quashes and annuls the decision below.

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