Medical malpractice or physical injury following medical treatment

A law dated 4 March 2002 provides compensation to those who have incurred abnormal and serious physical injury from a medical treatment, even if no medical fault is found.

What is indemnified?

Victims of medical treatments that have resulted in serious injury

Physical damage following medical treatment can be compensated provided:

  • the permanent injury is deemed to be at least 24% of the ‘permanent functional disability’;
  • the patient has been unable to work for a period of 6 consecutive months or for 6 months within a one-year period;
  • the person is no longer able to work;
  • the injured patient is experiencing “particularly serious problems in day-to-day life”

Compensation will be due irrespective of whether the injury was due to medical malpractice or was just an unfortunate turn of events.

Victims of medical malpractice

The victims of medical malpractice will be compensated provided that they can prove that the practitioner or the medical institution committed a fault that lead to the physical injury.

It is not always easy to prove fault since doctors are bound by a duty of care but not by an obligation to obtain results. The practitioner of the medical institution is required to act in a reasonable manner according to state-of-the-art knowledge; he is not required to cure the patient.

Before suing for damages it is preferable to first discuss the case with a lawyer and a doctor, and then to obtain an assessment of the case by a court-appointed doctor who will decide whether medical fault has been committed.

An infection caught at a public hospital is deemed to be the fault of the hospital, whereas if the infection is caught at a private clinic then the burden of the proof lies with the patient.

Indirect victims

Indirect victims are also entitled to indemnification: they are essentially members of the victim’s family (spouse, children, etc.)

However, when no medical fault is found the victims will only be compensated if death results as a consequence of the medical treatment.

Who pays?

  • The National Office for the Compensation of Medical Accidents (l’Office National d’Indemnisation des Accidents Médicaux - ‘ONIAM’). The ONIAM only pays if the patient’s injuries are of a certain degree of severity.
  • The insurers of the public or private-sector medical institutions, or doctors ;
  • Public hospitals when there is no insurer.

How to seek compensation?

Preparing the file

A full copy of the medical records must first be obtained.

The law dated 4 March 2002, gives the patient the right to access his medical records. In practice, however, it can be difficult to obtain these documents.

The medical assessment

If the lawyer and the doctor acting on behalf of the victim decide that there is a case to answer, an independent expert is required to assess the case by submitting it to any of the following bodies:

  • the CRCI - a government agency called the Regional Commission for Conciliation and Compensation (Commission Régionales de Conciliation et d’Indemnisation des accidents médicaux des affections iatrogènes et des infections nosocomiales), but only for serious injury (see above);
  • the Civil Court (Tribunal de Grande Instance) for cases involving private practitioners and clinics;
  • the Administrative Court, if the treatment was carried out in a public-sector hospital.

The compensation procedure

If the procedure is brought before the CRCI, which deems that the medical treatment resulted in serious physical injury over and above the expected consequences of the illness, the CRCI will:

  • in the absence of a medical fault - ask the government-sponsored ONIAM to indemnify the victim;
  • in the case of a medical fault - ask the insurer of the person/institution deemed responsible for the injury to pay the victim. If the insurer does not comply within a given timeframe, the ONIAM will pay the victim before looking for reimbursement from the insurer.

If the CRCI rules that the patient is not entitled to compensation, it will be necessary to start afresh and seek damages before the Civil of Administrative Court. However, prior to bringing a lawsuit to the Administrative Court it is mandatory to make a formal request for payment by sending a registered return-receipt letter to the administration. Only in the case of a negative or inadequately clear response or if no answer is received within two months, can the plaintiff lodge a request before the administrative court. It seems however that as of a recent regulation dated 12 November 2014, the lack of answer by a Hospital is deemed to be an agreement to the request lodged.

How to seek compensation?

Direct victims are entitled to compensation for full damages.
The next-of-kin can request compensation for moral harm, and the surviving spouse for financial loss.