Bull. Civ. 1998 I no. 287 p. 199 Case Rozec v. CPAM de Pau
07 October 1998
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

Given that M. X, born in 1943, whos e progressive arthritis in his right knee had put his lower leg ten degrees out of straight, which no previous treatments had been able to cure, had Dr Y proceed in December 1990 to a surgical operation which ameliorated the posture of the lower leg but allegedly resulted in subsequent tendonitis and muscular spasm for which M. X sought damages from the surgeon; that his claim was dismissed by the Court of Appeal of Pau (16 October 1996) upholding the decision of the trial court;

On the first ground of complaint:

Given that M. X criticises the court below for failure to reply to his argument that when the surgeon was reducing the bone in order to straighten the leg he was guilty of negligence and for failure to inquire whether such negligence had not made him lose the chance of getting better or avoiding the infirmity;

But given that that courts below, founding on two reports from experts, held that the tendonitis and spasm affecting M. X were not due to any damage to the sciatic nerve during the operation but to a post-operative haematoma which occurred when the tourniquet was removed, so that the hypothesis of carelessness in the operation collapses, as does the question of loss of a chance, and cannot be accepted;

On the second ground of complaint:

Given that M. X further criticises the court below for holding that the doctor was not obliged to inform him that there was a risk of harm to the sciatic nerve when the leg was being straightened by reduction of the bone on the sole ground that such risk was exceptional, being only 1%, and holding that this was not a harm;

But given that the court of appeal, by sound reasoning, found, on the one hand, that in view of the progressive nature of M. X’s arthritis and the failure of all previous treatment the operation he underwent was indispensable and the only way to improve his condition, and on the other that the operation actually did achieve the envisaged improvement, in that M. X recovered the use of his knee and could pursue not only his business activities but also his previous leisure interests such as cycling and hunting and that what he suffered thereafter was not severe spasm but only minor discomfort less than would have occurred had the operation not taken place; that if M. X was deprived of the chance of refusing the operation he suffered no harm as a result, a finding which by itself justifies the decision, leaving aside as superfluous the holding, which is bad in law, that there is no need to inform a patient of a risk which arises only exceptionally;

For these reasons DISMISSES the application for review.

07 octobre 1998, Bull. n° 287 :
1) The mere fact that a risk inherent in a surgical operation only occurs exceptionally does not exempt a doctor from the obligation to inform his patient of it: see note under Civ 1, 15 July 1999.

2) The mere fact that a patient was not informed of a risk, which actually occurred, relating to a surgical operation which he underwent, does not prove detriment resulting from the loss of the option he would have had, if he had been informed, of refusing the operation. This is because, on the one hand, having regard to the failure of all previous treatments, it was essential and of such a nature as only to improve his condition, and it had ended in the improvement expected and, on the other hand, this patient did not suffer on account of the realisation of the risk, but from disorders less than those flowing from not carrying out the operation.

Cf note under Civ 1, 29 June 1999, and more particularly the developments relative to the judgment of the 20 June 2000 (Civ 1, Bull no 193): there should be a reference 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 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 (CA Toulouse, 2 July and 4 November 2002 ). See likewise Civ 1, 13 November 2002, Bull I, no 265: The violation of the obligation to provide information which falls on the practitioner can only result in the imposition of a sanction to the extent that a detriment results from it, the existence of which is confirmed by the judges of the lower courts in the exercise of their sovereign powers of appreciation. A court of appeal which rejects a patient's claim based on a practitioner's violation of his obligation to provide information, by finding that it had not been shown (1) that the patient (informed of the exceptional risk associated with the surgical operation, the necessity of which was accepted by the expert, taking account of the danger inherent in the presence of a nodule on the thyroid gland) would have refused the operation and (2) that the absence of information had caused him a detriment which was indemnifiable, ruled correctly in law.

Translation by Raymond Youngs

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