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Medical liability

Lawyer for victims of medical malpractice in Marseille

The LELIEVRE & SAINT PIERRE law firm located in Marseille, brings together two lawyers specializing in the defense of victims of medical malpractice. Their expertise in medical liability is at the service of victims of medical malpractice, fault of the surgeon or contraction of diseases or infections occurring after hospitalization, for example.

Repair of damage suffered during an act of care

Under French law, the victim of an injury occurring during an act of care may obtain compensation in two distinct cases:

  • When a medical or hospital fault has been committed
  • When the damage results from a “therapeutic hazard”, under certain conditions

The principle: possible
liability in the event of fault or medical error

Under French law, the doctor is bound by an obligation of means in the care he provides to his patient. As such, he is required to provide care, not just any, but conscientious and compliant and meeting certain standards. The criterion used by the courts is that of care in accordance with the data acquired from science. This compliance with the data acquired from science is assessed according to the scientific data of the time in which the care was given.

As soon as the care provided did not comply with the scientific standards of the time, the doctor commits a fault, which may engage his liability.

This criterion is also the one that guides the analysis of possible mistakes made by other health professionals. Thus, once the care he has provided is not in accordance with the data acquired from science, it will be possible to seek the responsibility of the dental surgeon, the responsibility of the nurse, or the responsibility of the physiotherapist masseur, in particular.

When care is provided during hospitalization, the liability of a private clinic or the liability of the hospital may also be sought, either for the fault of the staff employed or working as a hospital agent, or for fault in the organization of the service.

Whatever its origin, the fault committed is likely to engage the responsibility of the health professional or the health establishment, since there is a causal link between this fault and the damage suffered by the victim.

What types of faults are we talking about?

01

Faults of medical technique, among which:

The faulty diagnostic error. For example: delayed diagnosis of stroke, cancer, postoperative complication.

The fault in the choice of treatment. For example: liability of the gynecologist or liability of the obstetrician for premature onset of childbirth or for an unplanned cesarean section.

The fault in the implementation of the treatment, of which the surgical awkwardness constitutes the most frequent illustration.

The fault in the post-operative surveillance. For example: liability of the anesthesiologist for lack of supervision.

02

Faults against medical humanism, including:

Lack of information, especially on operational risks

Breach of medical confidentiality

To these categories of properly medical fault, it is advisable to add the main cases of faults in the organization of the service , which can engage the responsibility of the hospital or the private clinic, in the event of 'hospitalization.

This responsibility will be incurred in particular in the presence of an insufficient number of qualified personnel to provide care. But also premises with a security malfunction or deficient custody procedure.

03

The fault of the surgeon (special case)

Surgery is by nature an invasive medical act, damaging the patient's physical integrity. As such, it is analyzed in a particular way by French case law. We thus recognize an “obligation of precision” in the surgical procedure.

This obligation means that the responsibility of the surgeon will in principle be engaged when the surgical act has injured an organ other than that targeted by the intervention.

There are many cases of application of this obligation of precision in the surgical procedure:

Peritonitis during a colonoscopy involving the responsibility of the digestive surgeon

Damage to a nerve during osteosynthesis, involving the responsibility of the orthopedic surgeon

Sublingual nerve damage during tooth extraction, involving the responsibility of the dental surgeon

Brain damage caused by damage to the central nervous system during surgery, etc.

04

The case of “no fault” liability

French case law has developed in parallel with the general principle of fault liability in cases of so-called “no-fault” liability.

The main cases are as follows:

Contraction of a nosocomial infection (infection contracted during an act of care; example: staphylococcus aureus, covid-19)

Liability for a defective product (example: contamination by the hepatitis C virus during a blood transfusion, fall from a medical bed)

You are victim of a medical
malpractice, what are your steps?

Compensation for the consequences of a medical error can be done by means. The patient could have the choice between the following remedies:

File a complaint and initiate criminal proceedings

File a disciplinary complaint with the professional order of the caregiver concerned

Bring a civil action (Judicial court)

Bring an action before the Administrative Court

Contact the CCI (former CRCI)

Each of these approaches has its own characteristics, and it is necessary to determine which is the most appropriate depending on the circumstances giving rise to the damage, and the desired end. Lawyers for a victim of medical error in Marseille, we can advise you.

Compensation for therapeutic
risks: a right recognized by French law

In the event that the damage suffered by the patient is not caused by fault on the part of the doctor or the hospital, it is not without recourse.

The law of March 4, 2002, known as the Kouchner law, gave any patient thus victim of a non-faulty medical accident (therapeutic hazard) a right to compensation.

This compensation is provided by a public body called the National Office of Medical Accident Compensation (ONIAM). However, ONIAM does not compensate all non-faulty medical accidents.

This compensation is subject to certain conditions provided for by law, and in particular a seriousness criterion. The objective of the law was in fact to provide compensation to patients suffering from the most serious therapeutic risks.

It should be noted that ONIAM may see its missions extended to cover compensation for other types of medical accidents. This is particularly the case for damage caused by transfusion, such as contamination with the hepatitis C virus (HCV).

The importance of medical liability expertise

Since he is a claimant in the compensation procedure, the patient must in principle provide proof of medical or hospital fault.

The main piece of evidence he can use will be medical expertise. It will intervene at the request of the victim through three different channels:

By mutual agreement

By contacting the CCI (formerly CRCI)

By submitting a request for judicial expertise to the Court

The choice of the most appropriate route will depend on the nature of the case. Our law firm specializing in medical error in Marseille can assist you in your procedures.

The expertise has two purposes in the context of medical liability cases.

First, an opinion will be given on the quality of the care given, in particular by investigating whether any faults were committed by any of the professionals or establishments involved. In this regard, the expert will have to say in particular whether the care provided appears to him to be in conformity with the data acquired from science. If invited, the expert will also be able to say whether the damage is due to a non-faulty complication (therapeutic hazard) that may give rise to compensation by ONIAM.

The other role of medical expertise is to determine the extent of the damage related to the fault or the therapeutic hazard. This second aspect of expertise may sometimes be relegated to the background by the expert, who often sees his main task as that of determining faults.

However, special attention must also be paid to this aspect of the appraisal, since it will serve as a basis for quantifying damage, as is the case in traffic accident files.

Particularity of the CCI procedure

Created by the Kouchner law of 2002, the Conciliation and Compensation Commissions for Medical Accidents (CCIs) have the main objective of trying to encourage a certain diversion of medical liability cases.

To achieve this, a Commission has been created in each region of France, responsible for examining the requests made by patients who are victims of a medical error or more generally of damage occurring during an act of care.

The CCI procedure takes place in three stages:

1. The Commission examines the medical documents provided and the file as a whole and decides whether or not to carry out an expert report.

2. If the Commission considers at first glance that the case is admissible and that it falls within its competence, it will appoint an expert doctor, defining its mission. The expertise will be conducted in an adversarial manner, in the presence of the parties and their Counsel.

3. After communication of the expert's report, the case will be examined by the Commission at a meeting, ie a hearing during which each of the parties may submit written and / or oral observations.

At the end of this procedure, the CCI will issue an opinion that may allow a patient to receive compensation for the damage suffered.

Any offer of compensation that may be made, however, can be freely negotiated and discussed.

In the event that a settlement fails at this stage, the means of challenge available to the victim will be to institute legal proceedings before the competent court.

Are you the victim of a medical error and wish to be accompanied by a specialized lawyer in medical liability?

DEMANDER UNE ETUDE PERSONNALISEE

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    04.91.04.04.15 contact@lsp-avocats.fr 103 Boulevard Notre-Dame 13006 Marseille
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    Le Cabinet d’Avocats LELIEVRE & SAINT-PIERRE est spécialisé en droit du dommage corporel et de la responsabilité médicale

    04.91.04.04.15 contact@lsp-avocats.fr 103 Boulevard Notre-Dame 13006 Marseille