Given that although she had had four children and two miscarriages between1964 and 1980 and still had ovulatory problems Liliane X., born in 1944, wanted a fifth child, and consulted a gynaecologist, M. T., who caused her to be fertilised, the pregnancy starting on 20 August 1988; that although the confinement was expected on 20 May 1989, M. T agreed to Liliane X.’s request that he induce the birth artificially so that the child be born on her wedding anniversary, 10 May, on which date the birth took place at 7.55 p.m. under epidural anaesthetic; that the uterus ruptured and severe haemorrhaging followed, and that although a hysterectomy was performed at 10 p.m. to stop the flow of blood, vaginal bleeding continued all night, so that M. T. decided on surgery at noon the following day during which Liliane X. suffered two prolonged cardiac arrests which reduced her to a semi-vegetative condition until her death on 12 May 1991; that in the suit brought by her husband and children the Court of Appeal of Toulouse (3 June 1996), upholding the decision below, held M. T solely responsible and dismissed the claims against three anaesthetists who had been involved in the operations;

Given that M. T and his insurer criticise the decision below for misapplying the rules of burden of proof, for misreading the findings of the experts, for violating article 1147 Code civil as regards the fault found against the doctor and the link between such fault and the harm to the deceased, and finally for misapplying article 1382 of the Code civil by dismissing the claims against the anaesthetists;

But given, first, that it is for the doctor to prove that he gave his patient candid, clear and appropriate information about any serious risks attaching to his diagnosis or treatment, whether proposed by himself or requested by the patient, so that the patient can either consent or decline in an informed manner;

Given, furthermore, that the court below did not misconstrue the findings of the experts but gave proper reasons for holding that M. T, whose duty under article 18 of the Code of Medical Ethics, pursuant to decree no. 79-506 of 28 June 1979, was to avoid exposing his patient to any unjustifiable risk and to refuse to agree to requests which would expose her to danger for no therapeutic reason, was in breach of this duty in agreeing not only to help fertilise a woman 44 years old who already had four children and had had two miscarriages but also to expose her, without any therapeutic reason, to the risk involved in artificial inducement of the birth which was obstetrically risky in view not only of the patient’s history but also of her present condition, the child presenting in a raised position in a uterus lacking tonic and with a short and closed birth canal;

Given that the court below, still in agreement with the experts’ report, found furthermore that after the uterine rupture and consequent haemorrhage the treatment provided by M. T was inadequate and insufficiently prompt in that when the postpartal hysterectomy did not stop the bleeding there was a long delay before the first surgical intervention, and the second one did not take place until the following day; that from these circumstances the court was entitled to infer that M. T who was under a duty to monitor the postoperative condition of his patient as required by her haemorrhaging was guilty of faults which were in direct and certain relation with the harm suffered by the deceased;

Given, finally, that as to its decision to dismiss the claim against the anaesthetists the court of appeal provided a legal basis in its finding that they had acted in accordance with good medical practice and had attended to the effects of the anaesthesia on the patient without ignoring their general duty of care as regards matters falling within the competence of their colleague M. T;

For these reasons DISMISSES the application for review.

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

Civ 1, 27 May 1998 (Bull no 185): "Incorporated fault" or "virtual fault" is inferred merely from the fact that the harm occurs or, as in the case criticised by the court, "from the mere abnormality of the harm and its seriousness". This judgment seems thus firmly to show the desire of the Court de cassation to maintain the principle of liability for fault proved in relation to the carrying out of treatment. For all that, the case law seemed hesitant, and other judgments, given at approximately the same time have seemed to call into question again the idea that only proved fault - and not the simple mistake - constituted an event generating liability. By judgments given respectively on the 8 November 2000 (Bull no 87), 27 March (Bull no 86) and 9 May 2001 (two unpublished judgments pourvoi nos 99-16.427 and 00-10.357), the Cour de cassation has affirmed that "reparation for the consequences of a risk of therapy does not come within the scope of obligations which bind a doctor contractually to his patient". It should nevertheless be noted that this case law, because of the requirement of a high level of skill on the part of the practitioner (assimilation of the least clumsiness or inaccuracy to a fault - Civ 1, 13 October 1999, unpublished, pourvoi no 97-21.451 - only excepting very rare cases of exoneration - cf Civ 1, 23 May 2000, Bull no 153: necessity for proof brought by the doctor that the harm was inevitable because of an abnormality of the patient making the injury unavoidable when carrying out the operation) guarantees to patients a high level of indemnification and makes the boundary between a risk of therapy and minimal fault tenuous. The distinction introduced by the Law of 4 March 2002 between, on the one hand, harm giving rise to the doctor's liability and requiring for this the proof of fault on his part, and, on the other hand, harm coming only within the risk of therapy, indemnified on the principle of national solidarity, could oblige the Cour de cassation to clarify its position on this point.

Translation by Raymond Youngs

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