Cour de Cassation, First Civil Chamber, (pourvoi no. 01-17.168)Bull.civ. 260, p. 217
09 November 2004
Translated by:
Tony Weir
Professor Sir Basil Markesinis

Cour de cassation:

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

Given that a salaried midwife is not personally liable to a patient for conduct which falls within the parameters of the tasks for which she is employed by a private health clinic.

Given that Mme Z…, thirty-five and a half weeks pregnant, was admitted to the Saint Coeur clinic on 25 April 1998 with a premature rupture of her membranes, and that after giving birth under the control of a gynecologist obstetrician, she was entrusted to the care of M. Y…, a staff obstetrician,  and Mme X…, a midwife employed by the clinic; Given that the infant Benjamin, apparently still-born and  needing resuscitation, suffered serious brain damage affecting his mobility; Given that after seeking expert opinion,  Mme Z… and M. A, Benjamin’s father,… brought interlocutory proceedings for provisional damages against M. Y… and Mme X…, as well as the Saint Coeur clinic and their insurers…

Given that the court below held both Mme X… and her insurer jointly liable to pay provisional damages, on the ground that since midwives are independent professionals and not mere employees they may be personally liable for their professional negligence, and that in this case the evidence of the experts was clear that the lack of supervision was principally due to Mme X…who was behindhand in recognising the condition of the foetus which resulted in his present handicap;

Given that in so holding, the court of appeal violated the texts cited above.

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