Cour de cassation:

Given that Mme Morisot hurt herself getting off the table on which she had been X-rayed by Dr. D., and that when she sued him her claim was dismissed by the judgment under attack (Douai, 18 September 1997) which she criticises for reversing the burden of proof as to the breach by the doctor of his obligation of safety and assistance;

But given, first, that while it is true that the contract between patient and doctor puts the doctor under a strict duty of safety (obligation de résultat) as regards the materials he uses for the purpose of diagnosis or treatment, while retaining his claim over against other parties, nevertheless it is for the patient to show that they were the cause of the damage; that the court of appeal, by reasons stated or adopted, held that there was nothing wrong with the examination table from which Mme Morisot climbed down on her own initiative, without being told to do so by the doctor; that it was within the sovereign power of the court of appeal to infer that the table was not a cause of the harm, and to do so without reversing the burden of proof;

Given, secondly, that in carrying out the actual X-ray the doctor’s duty was only one of care (obligation de moyens); that in this respect the trial judges found that there was nothing unusual about Mme Morisot’s condition and that she was not under the influence of any medicament which could have reduced her physical or mental abilities so as to require special vigilance on the part of Dr. D.; that finally they found that the floor was quite normal; that thus the court of appeal could conclude that the accident was due solely to Mme Morisot’s initiative and did not render the doctor liable;

For these reasons

DISMISSES the application for review.

Civ 1, 9 November 1999 : This judgment marks a new stage in the development of the law of medical liability, towards a widening admission of a "strict duty of safety (obligation de sécurité de résultat)", relating this time to the equipment used by the practitioner. On the 29 June 1999 (Civ 1, Bull nos 220 and 222), the Cour de cassation recognised this obligation in relation to nosocomial infection, while lower courts already recognised in a more general way such an obligation in relation to doctors in the case of harm caused by articles used within the scope of their medical services. The judgment of the 9 November 1999 comes within this overall trend, confirmed by a judgment of the 7 November 2000 (Civ 1, Bull no 279) under the terms of which a contract of hospitalisation and care between a patient and a private health institution places the latter under a strict duty of safety concerning, on this occasion, the products provided by it, such as medicines. At the same time, the judgment of the 9 November 1999 states the limits to this strict duty of safety which, although referring to all types of equipment used for medical activities does not, for all that, have general application, the duty of care (obligation de moyens) remaining towards the patient in respect of care expended. Moreover the right of recourse of the doctor or of the care institution against the supplier of the item which has caused the harm is affirmed there. In the end it is for the victim to prove the link between this harm and the defectiveness of the equipment used or the product supplied (likewise in relation to nosocomial infection, Civ 1, 27 March 2001, Bull no 87: "it is for the patient to show that an infection from which he suffers has a nosocomial character, in which case the doctor is under a strict duty of safety"). In this context, the Law of the 4 March 2002 relating to the rights of sick persons and to the quality of the system of health has not fundamentally modified the principles put forward by the judgments of the 9 November 1999 and 7 November 2000, although limiting the liability from now on to that harm which is caused by a "health product" (pharmaceutical products and also any type of appliance, instrument or product intended to be used for medical purposes - except human products) and not by simply any item.

Translation by Raymond Youngs

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