In view of article 1147 Code civil;

Given that shortly after he was born in 1961 Pierre Y. developed a fleshy angioma on the right side of his face and that when Dr X gave him two injections of trombovar in order to drain it the second injection caused an inflammatory swelling of the right eye, resulting in the loss of sight in that eye; that when he came of age M. Y brought a claim Dr. X for his carelessness in allowing the trombovar to flow into the eye cavity; that this claim was dismissed by the judge at first instance who held that it was good medical practice in 1961 to treat an angioma with trombovar and that Dr. X was guilty of no fault in giving the injections, but that the court of appeal (Rennes, 3 April 1996) held the doctor liable on the ground that the accidental result of the treatment disclosed “a fault inferable when the damage is abnormal and the treatment results in exceptionally serious harm” and that it was irrelevant whether it was by flowing into the eyebrow or through the flesh that the trombovar got into the right eye;

Given that fault cannot be inferred from the mere fact that the harm was abnormal or serious the court below, applying the false concept of “inferable fault”, violated the text cited by failing to decide whether the damage to the eye was due to any specific fault on the part of the doctor;

For these reasons QUASHES the decision and remands the matter to the Court of Appeal of Angers.

Civ 1, 27 May 1998 (Bull no 187): Even if the patient has asked for the treatment, the doctor must prove that he properly informed him "about the serious risks of the investigation or treatment which he proposed for him". This formulation echos the change of approach in the judgment of the 25 February 1997, which reversed the burden of proof by putting it on the doctor, a solution which is confirmed by article L 1111-2, last para, of the Public Health Code as modified by the Law of the 4 March 2002, which states that this proof can be brought by any means. The judgment furthermore blames the doctor - emphasising that it matters little that the patient has asked for the treatment - for not having refused to carry out the treatment, exposing his patient to a danger "without therapeutic justification", and thus causing her to run an unjustified risk. However, although the doctor has the obligation of informing his patient, he is not, for all that, required to convince him of the danger of the operation which he requests (Civ 1, 18 January 2000, Bull no 187), the obligation to inform being justifiably intended to ensure respect for the liberty of the patient, who must remain free to make his own decision.

Translation by Raymond Youngs

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