The Court:

…

In view of article 1147 Code civil:

Given that a doctor’s obligation to his patient as regards hospital infections is an obligation de résultat such that his only defence is proof of an external cause;

Given that on 22 September 1987 Dr Fr., who practised as a radiologist in rooms which he rented from a clinic on the terms that the clinic was to have no right of management or intervention, conducted an arthrogram on the knee of Mr F., and that a few days later sepsis in the knee joint set in as a result of staphylococci aurei which entered it during the arthrogram;

Given that the judgment under attack dismissed Mr F.’s claim against Dr Fr.on the ground that “since a doctor is bound by an obligation de moyen and not an obligation de résultat, the mere fact that harm occurred, even as a result of the treatment, does not imply that the doctor was at fault, so that for failure to prove any fault committed by Dr. Fr. the claim of Mr F. must be dismissed”;

Given that in so holding the Court of Appeal violated the text cited;

For these reasons QUASHES the decision below.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of February 2004.

Civ 1, 29 June 1999: This judgment illustrates the transition of a presumption of liability on the part of the institution for the contraction of this type of infection — except where the absence of fault on its part is proved — to a pure and simple strict duty of safety, reaffirmed by the judgment of the 27 March 2001 mentioned elsewhere. The Law of the 4 March 2002 has confirmed this principle in relation to the liability of care institutions. Where breach of the obligation to provide information is involved, this principle was already stated in 1990 (Civ 1, 7 February 1990 Bull no 39: "The surgeon who breaches his obligation to tell his patient about the possible consequences of his choice to accept the operation which the surgeon proposes to him only deprives the person concerned of a chance of escaping from the risk which occurs in the end by making a decision which is perhaps more judicious. This is a loss which amounts to a detriment which is distinct from physical effects resulting from the operation mentioned"). It is in fact a question of indemnification for the detriment arising only from the lack of information (loss of a chance), and excludes detriment arising from the risk realised, which explains why the indemnification is only partial, and proportionate to the detriment as a whole. On the 20 June 2000 (Civ 1, Bull no 193) the Cour de cassation, in response to a pourvoi which considered that mere proof of a breach of his obligation to advise the patient was sufficient to justify indemnification, stated that it should be referred back to the judge to discover, taking account of the patient's state of health, his personality, the risks inherent in the treatment proposed, and the effects which this information could have had on the patient's consent or refusal. The judges should assess the different heads of detriment suffered as a result of the physical harm as a whole, and then determine the percentage of the chance which the patient had of refusing the operation which was carried out. The indemnification will reduce (even to nothing, if the chance of refusing the operation is considered to be non-existent) to the extent that the operation effected is considered to be necessary (cf CA Bordeaux, 17 October 2002). These rules about indemnification are repeated in a judgment of the 18 July 2000 (Civ 1, Bull no 224: "Indemnification for the loss of a chance to obtain an improvement in a victim’s condition or of escaping from an infirmity is determined according to the state of the victim and all the consequences which follow from it for him. It cannot take the character of a lump sum, but corresponds to a fraction of the different headings of detriment suffered by this victim").

Translation by Raymond Youngs