Given that M. Attali criticises the decision below for holding him liable to M. Lagofun for the unfortunate results of the operation he conducted on 7 July 1986, arguing that as it is for the patient to prove that the surgeon failed to give the requisite information, the court violated article 1315 Code civil by relieving the patient of the burden of proof which was rightly his in holding that it emerged from the surgeon’s own notes that the patient had been warned only that there was a risk that he might become more deaf and suffer from vertigo, not that there was any risk of damage to the facial nerve; furthermore, that in holding the surgeon responsible for the harmful accidental consequences by reason of his failure to inform M. Lagofun of the risk of damage to the facial nerve, the court violated article 1382 Code civil in that it failed to identify any causal connection between the alleged fault and the damage, the court itself having found that the facial paralysis was due solely to an unforeseeable and undiscoverable spasm of the facial nerve;

But given that in the reasons it gave or adopted from the trial court the court below, having found from the surgeon’s own notes that he had informed M. Lagofun of only the risk of increased deafness and vertigo whereas a letter from him to a colleague showed that he was fully conscious of the foreseeable risk of damage to the facial nerve, the court justified its decision without reversing the burden of proof; furthermore that in analysing the experts’ report it found that the facial paralysis was entirely due as a matter of causation to the operation on 7 July 1986 during which the sheath of the nerve was cut when the epidermis was being opened with a view to disclosing the underlying problems;

From which it follows that this ground of application for review is baseless;

[On the second ground of complaint the Cour de cassation quashed the decision below for making the defendant liable to pay the full amount of the claimant’s damage in addition to an indemnity to the social services for the sums it had disbursed, instead of deducting the latter from the former.]

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

Civ 1, 10 July 1995, not published, pourvoi no 93-16.561: this judgment comes within the direct line of case law on the obligation to provide information to the patient (cf particularly Civ 1, 14 January 1992, Bull no 16 and 19 April 1988, Bull no 107 for similar cases). The lack of such information follows, in the case in question, from mention in a letter to a colleague of possible complications of which the patient had not been warned. However, this obligation recedes in the case of "multiple complications, the concatenation of which has made the occurrence of the risk entirely unforeseeable" (Civ 1, 18 December 2002 , Bull no 314). The proof that information was given - or that it was not - being capable of being made by any means, the courts could take into account, in particular, the patient's occupation, the number of discussions with the doctor, and the period for reflection, it being specified that this assessment is a matter for the sovereign power of appreciation of the judges of the lower courts (Civ 1, 14 October 1997, Bull no 278). The Cour de cassation was able nevertheless to regard as insufficient the evidence used as a basis by the judges of the lower courts for considering that the doctor has fulfilled his obligation to advise (Civ 1, 26 January 1999, not published, pourvoi no 97-13.573, given, it is true, in respect of cosmetic surgery, where the obligation to give information is imposed with particular strictness).

Translation by Raymond Youngs

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