JCP 1999.2.10113 Case D. v. Clinique Victor Pauchet de Butler
26 May 1999
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Professor B. S. Markesinis

Cour de cassation:

In view of article 1147 Code civil;

Given that when Mme D. lost sensation and mobility in her lower left arm after an operation conducted in the Clinique Victor Pauchet de Butler by M. R., a surgeon, and sued both clinic and surgeon the decision below, confirming that of the trial court, held that the harm resulted from the way the patient was placed on the operating table and moved during the operation, for which the surgeon was liable, and that the clinic also was liable, giving as its reason that “it had provided with surgeon with the material and human resources needed to enable him to conduct the operation and that the contract between the clinic and the patient justified making it liable.”;

But given that the contract between the patient and the hospital for accommodation and treatment makes the latter liable for the negligence of its delegates and employees as well as its own, and that, despite the inalienable professional independence of the doctors in practising their art, the hospital can be held liable, with recourse in appropriate cases, for the negligence of a doctor in professional diagnosis or treatment, this is true only if the doctor is paid by the hospital, so that the court should have found whether or not Dr. R. was paid by the Clinique Victor Pauchet de Butler;

For these reasons:

QUASHES and ANNULS the decision of 25 February 1997, but only in so far as it imposed liability on the Clinique Victor Pauchet de Butler, and remands the case to the Court of Appeal of Amiens.

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

Civ 1, 26 May 1999 : Until this judgment of principle, case law considered that liability on the part of clinics did not arise in respect of medical treatment stricto sensu, which came under the doctor's sole liability (however, Civ 1, 4 June 1991 and Crim 5 March 1992 should be noted, which indicate a development by accepting liability on the part of a clinic in respect of a doctor who causes harm to his patient in the exercise of his skill). This judgment specifies clearly the scope of the contractual liability of the clinic in respect of medical treatment provided by doctors working within it: the doctor must be paid by it, which excludes liability arising for a doctor practising within it, but without payment. Furthermore, in the case of a claim against the clinic, the latter can always seek recourse against the doctor who was at fault, even if he was paid: "If the health institution can be declared liable for faults committed by a salaried practitioner when undertaking medical investigation and treatment of a patient, this principle is no obstacle to the right of recourse by the health institution and its insurer because of the inviolable professional independence which even the salaried doctor enjoys in the exercise of his skill" (Civ 1, 13 November 2002, Bull no 263). This case law, confirming the principle affirmed on the 26 May 1999, at the same time confirms, with regard to salaried doctors, a clear retreat in the opinion of legal writers in relation to the principle emerging from the judgment "Costedoa" (Assemblee pleniere, 25 February 2000, "the agent who acts without exceeding the limits of the task allocated to him by his principal does not make himself liable with regard to third parties").

Translation by Raymond Youngs


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