Case:
D. 1987, 109 Case Mme F. v. L.
Date:
30 May 1986
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de cassation (Assemblée plénière):

In view of article 319 Criminal Code;

Given that when Alain F., on whom a tonsillectomy had just been performed by Dr. L., assisted by an anaesthetist, Dr. C., was left alone in his room by the nurse who was supposed to supervise him, he suffered a respiratory and cardiac attack of which he died a few weeks later; given that in acquitting Dr. L. of all liability, the decision under attack (Versailles, 4 March 1985) stated that even if it were proved that “Dr. L. left the clinic at the same time or just after Dr. C.” this was “not an act of negligence or imprudence or in breach of any regulations …causally related in a direct and certain manner with the death of Alain F.”, that “the surgeon no longer had under his direction the well qualified anaesthetist who had assisted him” on whom “thereafter the contractual obligation to look after the patient devolved” in such a way that Dr. L. was “not even obliged to ensure that the anaesthetist remain by the patient’s bedside for a long enough period, the duration of which he, as a surgeon, did not know”;

But given that if the anaesthetist is responsible for postoperative supervision within the scope of his specialism, the surgeon nevertheless remains under a general obligation of prudence and diligence, and that in failing to inquire whether, in view of the situation in the clinic when he left it, the surgeon should not have assured himself that the patient remained under the surveillance of a qualified person, the court of appeal gave no legal basis for its decision;

For these reasons,

QUASHES the decision and remands the matter to the Court of Appeal of Amiens.

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

Assemblee pleniere, 30 May 1986 : A doctor, whatever his specialism may be, should not lose interest in his patient after completing the treatment which he needs to carry out. A judgment of the Cour de cassation as long ago as the 21 February 1946 (Bull Crim no 68: "a surgeon's surveillance should continue after the operation up to the patient's recovery from anaesthesia") found a doctor liable for lack of surveillance. A similar solution had been accepted by the criminal chamber on the 9 November 1977 (Bull crim no 346) finding liability on the part of a surgeon who, at the end of a cosmetic surgery operation, had not sufficiently kept his patient under his immediate surveillance, contenting himself with entrusting her to the clinic's staff, without showing concern for the value and efficacy of the surveillance. A judgment by the criminal chamber of the 26 February 1997 (unpublished, pourvoi no 96-801.511) likewise applies this solution to an obstetrician. The judgment of the 30 May 1986, while reaffirming this principle, clarifies the division of roles between the surgeon and the anaesthetist, a solution widely repeated by the lower courts, but also by the Cour de cassation, which reaffirmed it in a judgment of the 23 November 1994 (unpublished, pourvoi no 94-80.376). Finally, a judgment of the Cour de cassation (Civ 1, 28 October 1997, Bull no 298) can be quoted, mentioning that the surgeon should spontaneously give the anaesthetist information which permits him to practise the best technique and, in a more general way, that the surgeon's obligations cannot be limited to surgical acts".

Translation by Raymond Youngs

 

Back to top

This page last updated Thursday, 15-Dec-2005 09:05:51 CST. Copyright 2007. All rights reserved.