Retroactivity of Jurisprudence on Doctor's Duty to Inform: A Reversal of Precedent.

Extract

[...] 00-14.564 - Can we hold a doctor liable for a breach of their duty to inform, even though this was not obligatory at the time of the events? This is a ruling made by the First Civil Chamber of the Court of Cassation on 9 October 2001, relating to the duty to inform and the retroactivity of jurisprudence. In this case, in 1974, a doctor decided to deliver a woman whose child presented by the seat without informing her of the risks of her situation for her and her child. [...]

[...] The consecration of a true reversal of jurisprudence On the one hand, this reversal presumes a prior non-mandatory duty of information On the other hand, it consecrates an engagement of a new contractual responsibility A prior non-mandatory duty of information The judgment of 9 October 2001, consecrated an important reversal of jurisprudence. In fact, in 1974, the duty of information was not mandatory. This is what the appeals court retained, not granting the child's request since it estimated that the doctor, not being contractually required to provide, in 1974, complete information on complications and exceptional risks, could not be sanctioned for this. [...]

[...] This designates the problem related to the non-respect of the principle of a fair trial." In a judgment of December the Plenary Assembly of the Court of Cassation took a position in favor of modulation over time in order to avoid depriving the applicant of his right to a fair trial guaranteed by Article 6 of the CESDH. However, if the jurisprudence does not deprive the litigant of his right to a fair trial, No modulation over time is admitted and the jurisprudence applies to the current case, in accordance with the principle "no one can rely on a right acquired to a frozen jurisprudence". This is why the Court of Cassation held the doctor responsible because this solution did not deprive the applicant of his right to a fair trial. [...]

[...] The admission of the retroactivity of this jurisprudence therefore engages the doctor's contractual responsibility, even though it differs with the jurisprudence in force at the time of the facts. In addition, the Court of Cassation in its judgment of 9 October 2001, recalls that, in view of Article 1382 of the Civil Code, the person who causes damage to another must repair it. This means that the doctor's responsibility is indeed engaged and he will certainly have to make amends for the harm caused to the child. [...]

[...] This retroactivity was unpredictable for the doctor who could not therefore avoid this sanction. In addition, Mrs. Deumier, a law professor, expressed that this retroactivity was accompanied by a kind of absurdity, as she said: "In 2001, a doctor is held responsible for not having respected during a 1974 operation, a 1998 jurisprudence". She addresses the impossibility of respecting a posterior jurisprudence of the facts in question. This therefore amounts to criticizing the reversal of jurisprudence with retroactive effect that leads to an infringement of legal certainty since the litigant is subject to a different solution than the one retained at the time of the facts." The reversal of jurisprudence consecrated by the judgment of October is debatable because it leads to an infringement of legal certainty. [...]