Cour de cassation:

Given that according to the findings below Mme Rouge went to M. Bon for cosmetic surgery, including two breast implants, that she was unhappy with the results and refused to pay the bill, that two expert reports were called for, one from a specialist in cosmetic surgery, Dr. Elbaz, the other from a neurologist, Dr. Bakouche, and that on the basis of these reports the court (Paris, 28 September 1990) concluded that M. Bon was not at fault at all;

Given that Mme Rouge criticises the court below for so deciding without saying whether in suggesting a full treatment M. Bon had informed her of the risk involved or put her in a position to weigh up the pros and cons of breast implants, so that its decision lacked legal basis;

But given that the court of appeal did state that according to the report of Dr. Elbaz the displeasing results were due not to any fault on the part of the surgeon but to the method itself, which still carried a statistical risk that breast implants might not be satisfactory, and was within its sovereign powers in deciding that Mme Rouge, whose decision to have the operation was “reasoned”, had not proved that M. Bon had fallen short of his obligations;

From which it follows that the complaint is baseless and must be rejected;

For these reasons

DISMISSES the application for review.

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

Civ 1, 7 October 1992 : This judgment illustrates the case law under which, in the case of cosmetic surgery, the doctor should not expose his patient to a risk which is out of proportion to the advantages expected, and has a duty towards him to provide information which is all the more rigorous because there is generally no need to cure nor any emergency. The information must not only concern the serious risks of the operation, but also all the disadvantages which are capable of resulting from it (Civ 1, 17 February 1998 mentioned above, a solution repeated in the Law of the 4 March 2002 modifying article L 6322-2 of the Public Health Code). As the proof that the information was given can be made by any means, the courts could take into account the number of discussions with the doctor and the period for reflection, this assessment being 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 can nevertheless 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 mentioned above, given in respect of cosmetic surgery).

Translation by Raymond Youngs

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